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[BREAKING] Permission Of District Magistrate Not Needed For Conversion By Inter-Faith Marriage : Gujarat High Court Affirms Previous Order

Sparsh Upadhyay
26 Aug 2021 7:30 AM GMT
[BREAKING] Permission Of District Magistrate Not Needed For Conversion By Inter-Faith Marriage : Gujarat High Court Affirms Previous Order
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Rejecting an rectification application filed by Gujarat Government, the Court said that it stayed Section 5 of the Freedom of Religion Act only in the context of marriages.

The Gujarat High Court today refused to rectify its August 19 order staying Section 5 Of Gujarat Freedom Of Religion Act noting that "We don't find any reason to make any changes in the order ".Appearing before the Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav, Advocate General Kamal Trivedi argued that Section 5 of the Act has nothing to do with marriage per see and...

The Gujarat High Court today refused to rectify its August 19 order staying Section 5 Of Gujarat Freedom Of Religion Act noting that "We don't find any reason to make any changes in the order ".

Appearing before the Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav, Advocate General Kamal Trivedi argued that Section 5 of the Act has nothing to do with marriage per see and therefore, the Court's August 19 order staying rigors of Section need rectification to the extent it mentions Section 5.

Appearing for the petitioner, Senior Advocate Mihir Joshi argued that in case Section 5 of the Act is not included in the stay order, then the Court's entire order won't operate and thereby, the Order of the Court becomes unworkable.

He also argued that if somebody wants to get married (inter-religious), the presumption is that it is unlawful unless permission is taken under Section 5. Since the Court has stayed Section 5 only in relation to marriage solemnized between consenting adults, the provision will not be deemed to be stayed for individual conversions, he added.

Arguments put forth before the Court 

Advocate General Kamal Trivedi argued before the Court that Section 5 of the Act is no related to marriages, it is only related to seeking permission of the District Magistrate by a person who wishes to convert his religion. For convenience, Section 5 is reproduced below:

"Today if I want to convert voluntarily without any allurement or force, or any fraudulent means, i can not seek permission as Section 5 is stayed. This section applies to normal conversions too," AG argued.

To this, Chief Justice said thus:

"Prior to the amendment, marriage was not under Section 3, but now, because of marriage coming into section 3, a conversion for marriage would also require section 5 permission. So in that sense, we have only stayed in the context of marriage. We have stayed Section 5 with respect to marriages only. We have not stayed Section 5 as a whole."

Further, AG argued that he had no occasion to argue over Section 5, and because of the Court's order staying Section 5, a voluntary conversion will be out of Section 5 and therefore, no one will go for conversion.

In response to this submission, Justice Biren Vaishnav orally observed thus:

"Now you will haul up a person by saying that no previous permission was taken under Section 5, even if the marriage is lawful and the interfaith marriage is by consent, you will say breach of section 5."

"Suppose there is allurement, no force, there is nothing, the Order of the Court says that rigors of Section 5 won't apply. When the section deals with lawful conversion, why should it be stayed? In the order, it may say that for lawful conversion, permission will continue to be required." said AG Trivedi.

To this, CJ Nath said thus:

"Supposing X is a bachelor, he wants to convert, he would require permission under Section 5 of the Act, we have not stayed that. Only permission for marriage has been stayed. Read what we said, we said the rigors of Section 3, 4, 4A to 4C, 5, 6, and 6A shall not operate merely because marriage is solemnized by a person of one religion with another religion without force or allurement or fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion."

Thereafter, dictating the Order, the Court said thus:

"We don't find any reason to make any changes in the order passed by us on August 19 (putting an interim stay on certain provisions of the Gujarat Freedom Of Religion Act). "

Background 

The operative part of the August 19 order read as follows:

"After recording the preliminary submissions and arguments advanced, we have directed as follows. We are therefore of the opinion that pending further hearing, the rigors of Section 3, 4, 4A to 4C, 5, 6, and 6A shall not operate merely because marriage is solemnized by a person of one religion with another religion without force or allurement or fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion. The above interim order is provided only on the lines of the arguments made by the learned Advocate General Mr.Trivedi and to protect the parties of inter-faith marriage from being unnecessarily harassed".

While protecting inter-faith marriages by consenting adults from the rigours of the Gujarat Freedom of Religion(Amendment) Act 2021, the Gujarat High Court, on August 19, prima facie observed that the law "interferes with the intricacies of marriage including the right to the choice of an individual, thereby infringing Article 21 of the Constitution Of India".

A division bench comprising Chief Justice Vikram Nath and Justice Biren Vaishnav observed that the provisions of the law, commonly known as the 'love jihad' law, put parties who have validly entered into inter-faith marriage "in great jeopardy".

The High Court said that a common man might perceive every conversion due to inter-faith marriage as prohibited by the Act.

"From the perception of the common man, it appears that merely because a conversion occurs because of marriage, it per se cannot be held to be an unlawful conversion or a marriage done for the purpose of unlawful conversion", it said.
"Prima-facie inter-faith marriages between two consenting adults by operation of the provisions of Section 3 of the 2003 Act interferes with the intricacies of marriage including the right to the choice of an individual, thereby infringing Article 21 of the Constitution Of India", the Court added.

The Amendment Act was notified on April 1 this year, in the lines of "anti-love jihad" laws brought by the States of Uttar Pradesh and Madhya Pradesh. The provisions of the Amendment Act are explained here.

The bench passed the order in a writ petition filed by Jamiat Ulama-E-Hind and Muhahid Nafees challenging the provisions of the Gujarat Freedom of Religion (Amendment) Act, 2021.

The act was challenged as an invasion into personal autonomy, free choice, freedom of religion, and unlawful discrimination and hence violative of the fundamental rights under Articles 14, 21 and 25 of the Constitution. On August 5, the Court had heard arguments in the petition (report may be read here).

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