Updated: Jan 24
New Delhi: Instead of safeguarding the rights of women, rape laws in India are often misused by parents of women to restrict their sexual autonomy by filing abduction and rape charges against male partners, my reasearch has found, offering indications of how Uttar Pradesh’s new love-jihad law may be used.
The UP government on 24 November 2020 approved a so-called love-jihad law: Prohibition of Unlawful Conversion Ordinance, 2020, dealing with forced religious conversions for the purpose of marriage. The Bill proposes a sentence between five to 10 years for persons convicted under this law and requires interfaith couples intending to marry inform district magistrates two months in advance.
The decision to bring a law on love-jihad—a Hindutva narrative that claims Hindu women are being lured into marriage with Muslim men and converted to Islam—was spurred by an October 2020 decision by the Allahabad High Court that said “conversion just for the purpose of marriage is unacceptable”.
However, on 11 November 2020, the Allahabad High Court held that the earlier decision was not “good law”. In this case, the Court quashed a criminal complaint lodged against a Muslim man for kidnapping a Hindu woman and forcefully marrying her. The High Court said that “two adults are free to choose their partner”.
According to Hindutva organisations (here and here), love jihad is the use of ‘love’ as a weapon by Muslim youth to convert 'innocent' Hindu girls and any Hindu woman who converts to Islam is regarded as a victim. The legal competence of a woman to marry is disregarded.
Special Marriage Act: An imperfect option for interfaith couples
The only legal option for interfaith couples in India to solemnise their marriage is the Special Marriage Act of 1954. However, the one-month notice period under the Act and the practice of sending notices to the residential addresses of the couple makes it an imperfect option for couples who marry against the wishes of their families and fear violence from them. In such a scenario, getting married under relevant personal laws is the safest option.
When a Hindu woman converts for this purpose, as we said, it is considered as love jihad by Hindutva groups. The anxiety arises from the fact that a Hindu woman who converts to another religion to get married would give birth to non-Hindu children, and, in doing so, increase the population of the 'other'— Muslims.
The love-jihad ordinance holds dangerous possibilities of harassment and incarceration of consenting interfaith couples. There is already a significant misuse of criminal law against interfaith couples (here, here and here) who elope against the wishes of their families. The proposed law will provide another avenue for patriarchal Hindutva organisations to collude with law-enforcement agencies and the judicial system and wrongfully prosecute such couples.
Criminalising Love
In my ethnographic study of rape trials in Lucknow in 2015, 52 out of the 95 trials I observed involved runaway marriages.
I spent eight weeks in April and May of 2015 observing rape trials at a Lucknow fast-track court, designated to adjudicate all rape trials in the district at the time. Rather than safeguarding the rights of the women, I found that rape laws were being misused by parents of women to restrict their sexual autonomy by filing abduction and rape charges against her male partner. The findings of this study are not an aberration. Research on rape trials in other parts of India has yielded similar empirical evidence.
In these cases, criminal law is activated by the woman’s parents, who file a police complaint of kidnapping against the male partner of their daughter under sections 363 and 366 of the Indian Penal Code, 1860.
For an offence to be made out under section 363, it must be established that the woman was a minor at the time of the incident. It is not the woman’s consent that is of importance here but the consent of her parents. Taking the woman out of parental custody, irrespective of her will constitutes the offence.
Section 366 criminalises kidnapping or abduction to compel a woman into marriage to have intercourse. If the woman is above 18 years at the time of the incident, then she is responsible for accompanying the accused man with the intent to get married. Therefore, every complaint corresponding to an interfaith and inter-caste runaway marriage invariably mentions the woman as a minor.
The Illegal Legal Consensus
In all of the 52 runaway cases that I observed during my fieldwork, the complaint submitted at the police station expressly named the male partner of the woman and accused him of enticing away the applicant’s minor daughter (meri nabaalig beti ko behla fusla ke bhaga le gaya). There was an uncanny resemblance between all complaints.
Once the police act on the complaint and hunt down the couple, the man is taken into custody and the woman’s family is given access to her irrespective of her consent. This allows the family to intimidate and pressurise the woman to indict the man before her police statement is recorded.
Following the recording of the statement, the woman is sent for medical examination. Despite being a case of abduction till this point, the doctors examine and comment on the status of the woman’s hymen which is a common practice in rape cases.
This is done through a two-finger test which involves inserting two fingers into the vagina of the woman to note the presence or absence of the hymen and the size and so-called laxity of the vagina. The test is also used to form an opinion on whether women are habituated to sexual intercourse even though the state of the hymen can hardly answer this question.
In 2013, the Supreme Court held the test to be “inhumane” and “barbarous”. The test is also prohibited as per the guidelines and protocols for medico-legal care of survivors/victims of sexual violence formulated by the Ministry of Health and Family Welfare in 2014. However, my study indicated that the two-finger test was routinely practiced in Lucknow.
The opinion of the doctor in the medico-legal certificate about the woman’s sexual activity based on the condition of her hymen converts a case of kidnapping into one of kidnapping and rape by the time a chargesheet is filed by the police.
At the trial stage, the fate of all these cases hinges on the legal age of the woman. In the absence of legally admissible documentary proof of age, a bone ossification test is conducted on the woman. The test comprises the opinion of a radiologist on the approximate age of the woman based on the fusion of her wrists, elbows, and knees based on the X-ray examination. The test results are not accurate and involve an error margin of nearly two years.
If the woman is legally established to be minor, her consent becomes immaterial making her male partner guilty of kidnapping and rape. However, if the courts find her to be an adult at the time of the incident, the case results in an acquittal.
State of Uttar Pradesh Vs Sachin
The State vs Sachin, 2011, was one of the many runaway cases that I observed during my study. I heard the final arguments in the case.
The alleged facts of the case were that the accused, a Hindu man, Sachin (his full name was not mentioned), had kidnapped and enticed the complainant's daughter, a Muslim woman (whose name was withheld since she was regarded a minor), who was allegedly 16 years old.
The medico-legal certificate of the woman in the case file made mention of the two-finger test and noted the status of her hymen as old, torn, and healed. The case file also contained details of a bone-ossification test, which found the woman to be nearly 17 years old.
In her statement before the Magistrate, the woman explicitly stated that she had eloped with the accused of her own will, after which she converted to Hinduism and married Sachin in the Arya Samaj Temple. She expressed her desire to be sent to the nari niketan (women's shelter home). However, two days later she was sent to her home with her mother against her wishes on the grounds that she was a minor.
When the trial started, the woman reiterated her statement before the Magistrate in court and was therefore declared a hostile witness by the prosecution. Her cross-examination revealed that her mother had filed a police complaint against Sachin because she did not want her daughter to marry a man of a different faith.
The woman also deposed that though she was 18 at the time of the incident, her mother mentioned her age as 16 in the police complaint. Relying on the high-school certificate produced by the women’s mother, the court held her to be a minor.
Her age on the date of the incident was 17 years and a few months. Sachin was convicted for kidnapping under section 363 and 366 of the Indian penal Code. He was acquitted for rape charges only because this was a case from 2011 and the age of consent at that time was 16 years.
Had this case been instituted after the Criminal Law (Amendment) Act of 2013, Sachin would also have been convicted for rape, given the increase in the age of consent from 16 to 18 years.
Love Jihad: A figment Of Right-Wing Imagination
In runaway cases, consenting women are framed as 'victims' under criminal law by contesting them as minors. As Pratiksha Baxi suggests, consent is biologised by giving their bodies precedence over their own voices, convicting the man who ran away with a consenting woman willing to marry her.
In these cases, the criminal-justice system colluded with social institutions to control women’s sexuality, in order to maintain the cultural ideological 'equilibrium’ and in such circumstances, the protectionist nature of the substance of the law, particularly around women’s bodies and sexuality becomes even more evident.
The love-jihad bill will only widen the scope of abuse of criminal law by Hindutva organisations. By portraying Hindu women as passive victims with no agency, the bill poses a significant threat to the right to an interfaith matrimonial alliance.
(Neetika Vishwanath is a lawyer with Project 39A at the National Law University, Delhi. This study was undertaken for her master’s thesis at the Tata Institute of Social Sciences, Mumbai. Views expressed in this article are personal.)