The Gujarat High Court on Thursday stayed the operation of several sections of the Freedom of Religion (Amendment) Act, 2021, including the provision that termed interfaith marriage as an ingredient of forceful conversion, after hearing two petitions challenging its constitutionality. According to Advocate General Kamal Trivedi, the amended act came into force on June 1 and three cases have been filed so far under it.
In the substantive part of the order, as issued in open court during the conduct of physical proceedings, Chief Justice Vikram Nath stated, ‘We have recorded the preliminary submissions and the arguments advanced and directed the following: We, therefore, hold that section 3, 4, 4A to 4C, 5, 6 and 6A shall not apply to marriages solemnized by one religion with another without force, allurement, or fraud and such marriages cannot be classified under section 3 for purposes of unlawful conversion pending further hearing’.
The above interim order is provided only on the basis of the arguments advanced by Mr (Kamal) Trivedi, learned advocate general, and to protect the parties involved (interfaith) from being harassed unnecessarily. As of August 17, Advocate General Trivedi submitted that interfaith marriages are not ‘per se prohibited’ but the division bench of Chief Justice Nath and Justice Biren Vaishnav posited that this new language leaves a ‘sword hanging’ over interfaith marriages.
A day after the order was issued, the advocate general asked the bench if it might clarify in the order that the operation of the said sections may be allowed if there is a marriage that results in forceful conversion. The bench responded that its order basically says that the practice of religious conversion following marriage can’t be construed as an offense unless there is force, allurement or fraudulent means involved.
Deputy Chief Minister Nitin Patel said the government will take appropriate action as soon as it has ‘full information of the comments and observations made’. Speaking to media, he said, ‘I am unaware of the comments made by the High Court on the love jihad law. Whatever may be the observations or comments, it is natural that our advocate general and other government lawyers will apprise the Chief Minister, Home minister and legal department. Once we have all the information about the comments and observations made, we will decide what steps to take’.
According to sections 3 and 4 of the amended Act, ‘Marriage or marriage help or aid or any other means by which a person is converted from one religion to another with the use of force is prohibited’. 4 lays down punishment for violation of Section 3 a maximum sentence of four years in prison and Section 4A lays down punishment for violation of Section 3 when marriage is by conversion, a limit of seven years in prison.’
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A Marriage which has done for the purpose of unlawful conversion by the person of one religion with the person of another religion, whether before or after marriage, shall be declared void by the Family Court or, where no Family Court exists, by the court having jurisdiction to try such cases. Section 4C establishes offenses committed by institutions or organizations in violation of section 3 and stipulates a punishment of up to 10 years in prison.
Sections 5 and 6 stipulate the need for the prior permission of the district magistrate in the event of conversion and for the district magistrate to prosecute offences under the Act. It is the burden of proof to establish that religious conversion was not obtained by force, deception, coercion, allurement or by any fraudulent means or by marriage that lies with the person who caused the conversion and with any other person who is responsible for facilitating the conversion.
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