Issue of “love jihad”: Right of “free consent” for Marriage
Context: Many state governments have announced that they are considering enacting an appropriate law to stop marriages which they term as “love jihad”.
What are the recent cases?
- A Muslim girl by birth converted to the Hindu religion and just after a month, she married a Hindu man according to Hindu rites and rituals.
- The Allahabad court directed the girl to appear before a magistrate to record her statements.
- The purpose was to check whether the girl converted with her consent or not.
- In another matter, a Hindu girl by birth converted to Islam and married a Muslim. The High Court recorded her statement and after its subjective satisfaction that she, being a major, had acted of her own volition.
What was the basis of observations?
- Lily Thomas (2000) and Sarla Mudgal (1995): In both the cases, the issue was of Hindu married men committing bigamy to avail a second marriage, without dissolving the first just by converting from Hinduism to Islam.
- Section 494 and second marriage: Both judgments concluded that the second marriage of a Hindu husband, after his conversion to Islam, would not be valid in view of Section 494 of the Indian Penal Code. The Court clarified that a marriage solemnised as a Hindu marriage cannot be terminated by one spouse converting to another religion.
What are the arguments against such laws?
- No legal basis: The concept of “love jihad” has no legal or constitutional basis, it has been concocted for the last few years.
- Fundamental right: The right to marry a person of one’s choice is a guarantee under Article 21. At the same time, freedom of conscience, the practice and propagation of a religion of one’s choice, including not following any religion, are guaranteed under Article 25.
- Avoid mixing of issues: Polygamy, polyandry, kidnapping, coercion, etc. are separate issues covered under existing provisions of the IPC.
- Fundamental freedoms: The right to marry a person of one’s choice flows from the freedom of individuality, naturally available to any individual.
- Supreme court views: The view of the Supreme Court (1965) that a marriage is not approved unless the essential ceremonies required for its solemnisation are proved to have been performed can only be read if one partner denies the marriage.
- Marriage is the very foundation of civilised society: the observation that “marriage is the very foundation of civilised society” and without which no civilised society can exist have become obsolete given the recent judgments by larger benches of the Supreme Court.
- Sub-judice: The legality of legislation like the Citizenship Amendment Act, which excludes only one religion from its purview, criminalisation of pronouncements of triple talaq and taking away the special status of Jammu & Kashmir are pending consideration in the Supreme Court.
The Courts needs to examine if the individual concerned has exercised their right of “free consent”.
Guidelines for matrimonial cases
Context – The Supreme Court has laid down the guidelines for payment of maintenance in matrimonial cases.
What are the impacts of early marriage?
- Health issues – Girls are married off early and bear children long before they should. This triggers a state of poor maternal health and is one of the root causes of high levels of child stunting and wasting in India.
- Dependency – Since girl brides are not able to complete their education, they remain dependent and underpowered which acts as a big hurdle towards achieving gender equality.
- There is also the possibility of a marriage not working out for varied reasons, leaving the girl or young woman in extreme distress because often she is not financially independent.
What did the Court say?
As per the Supreme Court guidelines-
- Deserted wives and children are entitled to alimony/maintenance from the husbands from the date they apply for it in a court of law.
- A violation would lead to punishments such as civil detention and even attachment of the property of the latter.
- The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife, if he is able-bodied and has educational qualifications, the court declared.
- Both the applicant wife and the respondent-husband have to disclose their assets and liabilities in a maintenance case.
- Other factors such as “spiraling inflation rates and high costs of living” should be considered, but the wife should receive alimony which fit the standard of life she was used to in the matrimonial home.
- Overlapping jurisdiction under different enactment– Husband doesn’t have to pay maintenance in each of the proceedings under different Maintenance laws.
- The Court also added how an “order or decree of maintenance” may be enforced under various laws and Section 128 of the CrPC.
Why such a judgment?
- Usually, maintenance cases have to be settled in 60 days, but they take years, in reality, owing to legal loopholes.
- The top court said women deserted by husbands are left in dire straits, often reduced to destitution, for lack of means to sustain themselves and their children.
- Despite a plethora of maintenance laws, women were left empty-handed for years, struggling to make ends meet after a bad marriage.
What are the other laws where women can make a claim for alimony in India?
- Maintenance under the Hindu Adoptions and Maintenance Act, 1956.
- Child maintenance under section 125 CrPC.
- Maintenance under Section 26 of Hindu Marriage Act, 1955.
- Protection of Women from the Domestic Violence Act, 2005.
Maintenance laws have been enacted as a measure of social justice to provide recourse to dependent wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy.