Conversion For Marriage- "Can't Exercise Judicial Power Just Because No Law In Place, But Can Examine Validity Of Law If Enacted": Calcutta High Court

The Bench of Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee further observed,

"The pith and substance of all the issues relating to conversion of marriage and acceptability of marriage in terms of personal laws or municipal laws are matters on which the policy-making instrument would not be the judiciary."

The Plea before the Court stressed that there is a consorted effort in certain religious denominations to effectuate conversion under the guise of the institution of marriage.

It was also submitted that in areas where there are no state legislation controlling or regulating such religious conversion, the judiciary could consider stepping in to put regulatory measures in place.

To this, the Court remarked,

"…The case in hand is not one where the most critical aspect emanating out of Article 21 of the Constitution may provoke exercise of judicial power on the premise that there is no legislation in place."

However, the Court did clarify that it could sit in judgment on the validity, enforceability, and/or otherwise of any piece of law which may be made by any legislative body.

Recently, the question – as to whether conversion for marriage should be permitted or not- has sparked debate across the country and for this, we need not look further than the legislation brought in by the Uttar Pradesh and Madhya Pradesh Governments.

The Uttar Pradesh Government, in November 2020, came up with the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 (Uttar Pradesh Vidhi Viruddh Dharm Samparivartan Pratishedh Adhyadesh 2020).

On the other hand, the Madhya Pradesh Government, too, on the lines of UP government, came up with The Madhya Pradesh Freedom of Religion Ordinance, 2020, and recently the Madhya Pradesh Assembly passed the Freedom to Religion Bill, 2021 with a voice vote.

Both the laws make religious conversion a non-bailable offence, and invite penalties up to 10 years in prison if found to be guilty of using marriage to force someone to change religion.

Importantly, according to these laws, if an individual wants to marry after converting to any other religion, they are required to take permission from the district magistrate before the wedding.

Significantly, the UP Government in January 2020 filed a counter-affidavit in response to a batch of PILs challenging its controversial Love-Jihad Ordinance.

In its reply, the Government claimed that the Ordinance is aimed at preventing any form of unlawful conversion actuated by elements of misrepresentation, force, undue influence, coercion, allurement, etc.

"The Constitution of India abhors any form of forceful conversion particularly in matters of religion. Being a secular State, it becomes the foremost duty of the State to protect its citizens from any kind of unlawful or forceful conversion so that the liberty of thought, faith, belief and worship, as well as, equality of status stands safeguarded thereby assuring the dignity of the individuals," the Government submitted.

In related news, in a protection plea filed by an interfaith couple, the Punjab and Haryana High Court recently observed that the marriage between a Muslim woman and a Hindu man won't be valid as the bride didn't convert to Hindu religion before the solemnization of marriage in accordance with Hindu rites and ceremonies.

The Bench of Justice Arun Kumar Tyagi however ruled that the couple would be entitled to live in live-in-relationship in nature of marriage and also to the protection of their life and liberty.

Notably, the Allahabad High Court had, in October last year, dismissed a writ petition seeking police protection filed by a married couple.

This is after the Court noted that the girl was a Muslim by birth and she has converted her religion to Hinduism, just a month before the marriage was solemnized.

This clearly reveals that the conversion has taken place only for the purpose of marriage, said Justice Mahesh Chandra Tripathi. The judge referred to a 2014 judgment in Noor Jahan Begum @ Anjali Mishra & Anr. v. State of U.P. & Ors., in which it was observed that conversion just for the purpose of marriage is unacceptable.

Taking note of this, the Court had dismissed the writ petition saying that it is not inclined to interfere in the matter under Article 226 of the Constitution of India.

However, a division bench declared this judgment as bad in law on November 11. The division bench judgment may be read here.

Case titles - Palash Sarkar v. The State of West Bengal & Ors. along with Biswajit Ghosh v. The State of West Bengal & Ors. [WPA 9732 of 2020 with WPA 9734 of 2020]

Click Here To Download Order

Read Order