New Delhi: On 13 December 2022, the women and child welfare department of the Maharashtra government passed a resolution to set up a 13-member ‘Inter-caste/Inter-faith Marriage—Family Coordination Committee’.
The committee is tasked with obtaining “detailed information” of couples in inter-caste or inter-faith unions, contacting the newly married women and finding out if they were in touch with their families.
The committee will track registered marriages, marriages performed at places of worship and even those where couples eloped. If the committee finds that a woman is estranged by her family after marriage, it would attempt to reconcile her with parents and “settle disputes” between them.
According to Mangal Prabhat Lodha, a Bhartiya Janta Party (BJP) member of legislative assembly (MLA) and Maharashtra’s minister of women and child welfare, this decision was taken in light of the murder of Shraddha Walkar, cut into many pieces, allegedly by her partner Aaftab Poonawala in Delhi.
“We don’t want a case like Shraddha Walkar repeated and thus this committee has been formed, which will help in reconnecting families with women who have married into different faiths or castes against their wishes,” said Lodha.
The move to monitor such unions drew widespread criticism (here and here), and within a day of passing the resolution, the Maharashtra government amended it, dropping inter-caste marriages from the committee’s purview.
“The committee is only for inter-faith marriages, and not inter-caste marriages,” said deputy chief minister Devendra Fadnavis. “The earlier GR (government resolution) was not the correct one.”
Even as the country’s top court hails inter-faith and inter-caste marriages as “the way forward” for society, the resolution creates room for inter-faith marriages to be looked upon with suspicion.
That the resolution lacked any careful consideration by the state government to begin with is evident from the clarifications that followed.
To back his claim, Fadnavis clarified that the state government encouraged inter-caste marriages and planned to financially reward inter-faith couples.
“It is alarming that there has been an increase in cases of cheating in inter-faith marriages in some parts of the state,” said Fadnavis. “Therefore, fraud in the name of ‘love jihad’ has to be stopped”.
He was referring to a persistent—and by the union government’s own clarification, fake, as Article 14 has previously reported—narrative promoted by Hindu right-wing organisations and Fadnavis’ and India’s ruling party.
Lodha later contradicted Fadnavis claiming that the committee to track inter-faith marriages was not about tracing ‘love jihad’.
“It’s only to help those girls who have gone against the wishes of their original family,” said Lodha. “We want to protect them, we want them to communicate with their original family. That’s all.”
Another BJP MLA, Ram Kadam, added to the confusion. “Comprehensive attempts are needed to stop ‘love jihad’,” said Kadam. “And this (government resolution) is just the first step”.
It was clear the government itself was unclear about the resolution or the committee’s task. As per statements made by the state government’s own representatives it is either: (i) to help “estranged” women or (ii) trace cases of ‘love jihad’.
Our analysis shows that whichever of these two objectives the resolution sets out to achieve, it is illegal, unconstitutional, even irrational and likely a political move in the run-up to local body elections in Maharashtra.
The Irrationality Of The Rationale
In acknowledging that the State wishes to encourage inter-caste marriages and by dropping such unions from the purview of the committee, the government has made a discreet admission—that it does indeed intend to track inter-faith marriages, not encourage them, and view them with suspicion.
The resolution singles out inter-faith marriages based on at least four flawed assumptions.
First, it assumes that women are estranged by their families only in inter-faith marriages, and violence and isolation faced by women is an inevitable and distinct characteristic of inter-faith marriages.
“The Committee has been formed especially to focus on inter-faith marriages because the problems in such cases are more acute”, said Lodha, the BJP minister. There is little to no research or data to back such a claim.
In assuming that only women in inter-faith marriages face violence or are estranged from their families, the resolution disregards the fact that women who choose to marry within their communities are also subjected to coercion or violence for exercising agency in matrimony.
The resolution also overlooks the possibility that men involved in inter-faith marriages too are at great risk of being subjected to violence and hostility, as is evident from a series of cases (here, here and here).
In this respect, the resolution is ignorant of ground realities and largely discriminatory; penalising and investigating only women who marry individuals of a different religion.
The “more acute problems” in inter-faith marriages, as Lodha alleged, and the ‘love-jihad’ bogey have no basis either in law or data, as official right-to-information replies, orders of high courts and statements made by members of Parliament.
Yet, the notion of ‘love jihad’ endures and gathers pace.
If the intent is to “protect” women, avenues to seek help, legally or otherwise, already exist, in legislations such as the Protection of Women from Domestic Violence Act, 2005, and the Indian Penal Code, 1860, irrespective of religion or caste. The resolution fails to explain why only those who choose to marry outside their faith will be investigated by the government.
Tracking Interfaith Unions Will Expose Them To Greater Risk
Second, the resolution assumes that tracking inter-faith marriages and encouraging reconciliation between women estranged from their parents will reduce crimes against women.
There is no evidence to show that tracking such marriages will protect women from physical violence. If anything, it exposes couples already facing threats and pressure from families, to greater risk, evident from the glut of pleas before various high courts (here, here, here and here) made by couples for protection from their families and community groups.
The resolution does not explain how the committee will extend help. It envisages help in reconciling estranged women and their parents, but fails to consider circumstances where the parents or the woman may not be interested in “settling” their personal disputes or willing to disclose contact information.
That the state government will now meddle and act as a mediator in private family disputes is a first.
The resolution contemplates distress helplines, a seemingly positive step. But the government appears to have forgotten that such helplines already exist and regardless of their existence, women largely refrain from reporting such matters.
As the National Family Health Survey-5 (2019-21) revealed, of all women who experienced any type of physical or sexual violence surveyed, 77% never sought help or told anyone of the violence against them.
A False Assumption About Shraddha Walkar’s Murder
Third, the resolution wrongfully invokes as an example, the gruesome murder of Shraddha Walkar, and assumes that her death was a result of an inter-faith relationship.
The most evident flaw in passing the resolution as a reaction to the Walkar murder is that the government ignores the reality that women across India, including those who marry within their communities, face violence from partners. To suggest that such instances are peculiar to inter-faith marriages is factually incorrect.
Fourth, Walkar and her killer, Poonawalla, were in a live-in relationship. Even as the state government cites this brutal murder as the basis for its resolution, it failed to clarify whether the “tracking” as envisaged will also include inter-faith live-in relationships. If that is the case, the extent of intrusion into the personal lives of individuals by the State will have no checks and bounds.
Essentially, the Maharashtra government is attempting to send a clear message—you can marry anyone you want, but if you marry outside your faith, the State will be watching.
Denial of Life, Liberty & Equal Status
The Maharashtra government resolution is subversive of the principle of equality, at the heart of Article 14 of the constitution of India. The resolution not only consigns women to second-class status depending on who they marry, but also puts their life, limb, privacy and liberty at peril, contrary to the constitutional mandate of Article 21.
The assumption that adult women who choose and consent to marry someone from another faith need to be ‘saved’ is misplaced and goes against the spirit of the Constitution.
Time and again, the apex court has reaffirmed the right to choose one’s partner (here, here and here). However, in defiance of settled legal precedents, Maharashtra’s resolution is premised on flawed assumptions and ignores the fact that it is patently susceptible to misuse.
In the case of Shafin Jahan vs Asokan K.M., the Supreme Court had declared an adult’s right to marry a person of choice as an indispensable part of personal liberty and privacy. In another case, the court reiterated that the choice of a partner is the “exclusive domain of the individual”.
In Laxmibai Chandragi B and Another vs State of Karnataka and Others, the Supreme Court held that the “consent of the family or the community or the clan is not necessary once two adult individuals agree to enter into a wedlock and that their consent has to be piously given primacy”. While underlining “choice” as an inextricable part of “dignity,” the court said that “dignity cannot be thought of where there is erosion of choice.”
The country’s constitutional right to privacy guaranteed under Article 21 has also been interpreted by courts to protect couples from pressure, harassment and violence from families and religious communities.
In November 2021, Justice Suneet Kumar of the Allahabad High Court while hearing a a batch of petitions filed by interfaith couples, observed that “freedom of religion and belief is a basic human right across civilized states, and the state cannot inquire into or take notice of a person’s religious or moral belief”.
The Supreme Court in the 2006 case of Lata Singh vs State of Uttar Pradesh & Another, while reiterating the right of a major to marry as per his or her choice, clarified, “If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage, the maximum they can do is that they can cut-off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage.”
Yet, the state has taken upon itself the task of policing inter-faith marriages. In its attempt to help “counseling” and “conciliation” between a woman who marries a person from a different faith and her estranged parents, the state will open the doors for further intimidation of such women and their spouses.
The flimsy premise of the resolution shows that the government failed to consult key stakeholders before taking the decision. Not only did the decision not go down well with several NGOs and activists in the state, the government’s own State Commission for Women also raised serious concerns about it.
There is significant evidence to show that such resolutions are likely to further embolden mobs and take law into their own hands. In 2018, Indiaspend reported 39 stories of vigilante violence faced by inter-faith couples.
In July 2021, succumbing to pressure from their community, parents of a 28-year old Hindu woman in Maharashtra's Nashik district were forced to call off her marriage ceremony with a Muslim man. The invitation card for the marriage ceremony had gone viral on social media with protesters describing the marriage as a case of ‘love jihad’. Such incidents continue unabated.
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(Mani Chander is a lawyer based in New Delhi.)