After providing protection to 125 interfaith couples in November alone, Allahabad High Court ended, after 66 years, a legal provision that made public identities of interfaith couples. The ruling will likely strengthen similar petitions in other courts, despite efforts of BJP states to restrict inter-faith marriage
New Delhi: For Raziya*, the decision to slip out of home at 2:30 am was not easy.
That night of 4 February 2019, clutching a bag with a few personal belongings and a fistful of saved cash, the 22-year-old made her way into the thick sugarcane fields surrounding her village in Saharanpur district in northern Uttar Pradesh.
Scared to venture further in the dark, she hid among the tall crops until morning. “I can’t begin to describe how I was feeling," Raziya recalled. "I was very, very scared,”
At around 7 am, she darted towards the bus stand to find a ride that would take her to Karnal in Haryana, and then onwards to New Delhi.
Two buses and a metro ride to the neighbourhood of Hauz Khas later, Raziya was finally in the office of Dhanak for Humanity, a non-profit that supports interfaith and inter-caste couples, understanding the importance of consent, personal liberty, and their right to choose who to marry.
These were the very things she had risked her life for.
It was five days before her arranged marriage with a man from the community whom she had never met, let alone consented to marry. Her family was vehemently opposed to her relationship with Ajay Kumar*, a Hindu man from the neighbourhood who worked in a garment factory in Gujarat.
“They were forcing me by all means (to marry). But I couldn’t do it," she said. "I thought I would die if I didn’t leave."
But the fight was not over.
The provisions of the Special Marriage Act (SMA), 1954, constituted to provide an alternative to religious unions, requires that a notice of intended marriage be given to the marriage officer of a district at which at least one of the couple has lived for at least 30 days.
When this eligibility is met, and the couple files an application, there is a 30-day waiting period during which details of their intending marriage, including identities, addresses and phone numbers are pasted on a public notice board outside the registrar’s office.
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Two months later in April 2019, Raziya became a co-petitioner, along with Dhanak, of an application in the Delhi High Court challenging sections regarding the 30-day residence period and the entire procedure for registration of the SMA on the grounds that it endangered people like her.
“Love won’t cease. Even in the direst of situations, there is love. The question remains, how do those in love find a way to be together?” said Asif Iqbal, co-founder of Dhanak of Humanity, an advocacy that promotes and protects interfaith marriage.
“We are hopeful people,” said Iqbal. “We have hope on the Indian constitution. It’s our only strength, and, so, we continue to rely on it fully.”
A 66-Year-Old Threat To Interfaith Couples Ends
The public posting of a notice often becomes a red flag to vigilante groups and irate parents opposed to the marriage. Petitions challenging this requirement are already pending in the Supreme Court and Delhi High Court.
On 12 January, the Allahabad High Court held that the publication of notice of intended marriage violates the right to privacy and should not be mandatory. Couples now have the option to make a written request stating whether or not they want the notice published.
The court ruling came in response to a petition filed by a woman called Safiya Sultana through her husband Abhishek Kumar Pandey.
In UP’s Sultanpur district, 24-year-old Sultana converted to Hinduism, changed her name to Simran and married Abhishek Kumar Pandey in August 2020 under Hindu rites.
After the marriage, Sultana’s angry father detained her at home and refused to let her see her husband. Pandey filed a habeas corpus (literally, “produce the body”) petition in court. During the hearing, Sultana said she wanted to live with Pandey. The couple also admitted that they could have married under SMA without either of them having to convert but for the 30-day notice.
The public notice would not just invade their privacy but also cause social pressure and interference, they said. This is a challenge faced by many people who want to build a life with a partner of their choice but cannot raise these issues.
“There is always opposition to interfaith marriages here (in UP) so there is a real threat,” said Adarsh Kumar Maurya, lawyer for Sultana and Pandey. “The public notice under SMA is also sent to the couple’s home. So when the girl’s family finds out, there’s a huge uproar.”
The requirements and provisions of the SMA often discourage couples from opting for it, said Dhanak’s Iqbal. “For them it is a life and death situation," he said. "It’s challenging for us as well to help them."
Court Protects Interfaith Couples From New Laws
The Allahabad High Court ruling also took note of the lawyer’s concern that “the situation may become more critical with notification of Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, as the same prohibits conversion of religion by marriage to be unlawful".
Like Uttarakhand, UP, and, as of 9 January, Madhya Pradesh, have anti-conversion laws that have virtually imposed a ban on interfaith unions. Haryana and Karnataka have both stated their intention to have a similar law.
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This is not the first time that the Allahabad High Court has come to the aid of aggrieved couples. In November 2020 alone, the court granted protection to over 125 interfaith and inter-caste couples.
“On one hand, provisions like the one concerning 30 days’ notice, calling for objection, putting up the notice on public domain etc. act like an incentive to the orthodox, fanatic forces of the country,” Kaleeswaram Raj, the advocate representing the Supreme Court petition told Article 14.
“On the other hand, it’s not just a matter of inconvenience that happens on account of the infringement of privacy. It’s more than that,” added Kaleeswaram. "The state is getting into the realm of individual, intimate relationships between citizens where it has no business. The state has to stand outside that domain.”
Utkarsh Singh, lawyer in the Delhi High Court petition filed by Raziya and Dhanak, said the Allahabad High Court judgement and petitions filed by interfaith couples in various courts, challenging provisions of the SMA, will serve as a rallying point for those fighting for the liberty of individuals. They could also set a legal precedent for other high courts in the future.
Raj agreed that the judgement would serve as an important piece of legal literature that, if unchallenged, the Supreme Court will refer to while examining their petition. It can then have an impact on how the law applies to not just one state but the entire country.
A Rallying Point For Liberty
The 30-day residence and 30-day notice requirements are unique to the SMA. There is no notice period for couples marrying under Hindu or Islamic religious rites. For some interfaith couples who do not have the time to wait, conversion by one so that both are of the same faith is often a practical loophole of getting out of the waiting period, observed a 2018 Law Commission report.
According to the Indian Human Development Survey (IHDS) from 2011-12, only 5% of Indian marriages are between people of different castes, and as per the estimates of the 2005-06 survey, only another 2.2% are interfaith. Moreover, women seldom participate in decisions regarding their own marriages—in the 2011-12 IHDS survey, only 5% of women said they had sole control over choosing their husbands.
At the root of the problem lies patriarchy. “The girl is always treated as a subject, as a property, wherein first the father decides for her and then the husband does,” said Utkarsh Singh.
When she left home, Raziya left behind a letter explaining why she was leaving. That didn’t stop her extended family and the local police from harassing Kumar and his family, accusing them of “instigating” her. Kumar said his family had to leave the village for two months.
Raziya and Kumar waited a month to fulfill the requirements of the SMA but at the time of registration, were still turned away. The officer told them that a copy of the court directions, which clearly state that Raziya would be put up in a shelter home, could not be considered in an online application. They were asked to return after another month with local address proof to be eligible.
“When we learnt about the SMA, we were glad that neither of us needed to convert and could have a secular marriage. But then there were all these requirements at a time when we were seeking safety,” said Kumar. “We say that the Constitution treats everyone equally but that’s not really the case in real life.”
The couple took to the courts again which directed the officer to consider the shelter home as proof of address after required verification. Aggrieved by the process, Dhanak and Raziya decided to challenge the provision so that interfaith couples in the future have a smoother and shorter path to marriage.
On 27 May 2019, almost four months after she first left home, Raziya and Kumar’s marriage was finally solemnised, and they moved to Gujarat where they live together. Their petition has not been listed for final arguments yet.
“These are all cases that may appear to be man-woman or husband-wife affairs but the political context of these cases should not be overlooked,” Kaleeswaram said. “The youth of this country is taking a strong position against the state’s intrusion into the personal realm, the realm of liberty, and the realm of choice.”
(Sarita Santoshini is an independent journalist reporting on gender, social justice, and global health and development.)
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