INTRODUCTION
Love sees no caste, class, or religion. Every adult individual has the right to choose a lifelong companion. Our constitution guarantees that each person is free to choose the life partner with whom they wish to spend it. India is a country with a very diversified population in terms of religion and culture. Each religion has its own set of laws that apply to certain circumstances, including marriage and divorce. When two people of different religions are married, there is a difficulty since it becomes unclear as to which personal law applies. Every religion is governed by its laws, and it is not in the best interests of people to abide by every rule from every religion since that would lead to a state of chaos.
Nowadays, people are more likely to marry the person of their choice, regardless of their caste or religion, than in the past when people were compelled to marry into their caste. Though inter-faith marriages remain a taboo in our country, we frequently witness inter-faith marriages. Marriages between people of different religious beliefs are now more frequent among families. Additionally, society has made an effort to accept these kinds of interfaith unions.
PROBLEMS OF INTERFAITH MARRIAGES
It is pertinent to note that family plays a vital role in Indian culture when it comes to marriage. In small-town villages, marrying as per your own choice is not an option. It is viewed as a shame to the family and a deviant activity. Being married into another religion is seen as improper behaviour and a cause of social disgrace. In many instances, panchayats and entire villages have shunned these couples, forcing them to flee their hometowns. In other circumstances, religious organizations and even family members have instigated chaos and strife in an attempt to dissolve the marriage. As a result, in addition to the couple experiencing these problems, each person must also cope with their emotional upheaval. Furthermore, it instils dread in people’s thoughts that if they do not follow the family’s marriage advice, they might end up like others who have done the same thing.
The misconception that one must change to a different religion to get married is another issue that emerges in interfaith unions. All inter-faith marriages are solemnized under the Special Marriages Act, 1954[1] which defines these types of marriages as special marriages. Under this act, one can get married without converting to another religion. However, some of the personal laws demand conversion. As a result, there are forced conversions taking place, which gives rise to problems like love jihad and states are forced to make anti-conversion laws. Conversion is a personal decision made from free will and without outside influence. It is not an obligation. Article 25 of our constitution[2] states that “All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” This article respects every person’s right to practice any religion of their choice, including the right to convert. It is, however, subject to reasonable limitations and is not absolute. Therefore, it is not necessary to convert from one religion to another to get married. Also, there is no provision regarding the caste determination of children born out of interfaith marriages.
Furthermore, personal laws differ from religion to religion. When it comes to marriage, the laws are not all the same. This makes it difficult to determine which law will apply when two persons of different religions get married. For example- if a Hindu boy wants to marry a Muslim woman, he must convert to Islam. Personal laws run counter to the Special Marriage Act, which makes matters complicated. It is important to note that the freedom to choose a life partner is ensured by Article 21 of our constitution[3] as a fundamental right. The same has been held in Shafin Jahan v. Ashok KM[4]. The SC held that this right to marry cannot be taken away except by a reasonable law. It is the fundamental liberty of an individual to make decisions in pursuit of his/her happiness and society has no role to play in influencing the choice of partners because this matter of belief and faith is at the core of constitutional liberty. Therefore, inter-faith marriages are valid if solemnized according to the procedure established by law.
ARE PERSONAL LAWS ENOUGH TO GOVERN MARRIAGES IN INDIA?
The rich legacy and culture of India make it a varied nation. It is home to people of various religions and every other person follows a different religion. India is still united despite its religious diversity.
But when it comes to marriage and divorce, it is unfeasible to combine several religions, and it is also impractical to adhere to every religious law in such a circumstance. Personal laws in India have a long history as they date back to the pre-colonial era[5]. These personal laws are unchanging over time because they get their authority from religion. Personal laws are viewed as archaic since they fail to meet the demands of society as it evolves. They are gender biased, discriminatory and outdated.
A Uniform Civil Code becomes necessary to establish uniformity in the system. Our legislators must have anticipated that a unified civil code would eventually be necessary, as evidenced by the fact that they incorporated one in Article 44 of our constitution[6]. One of the attempts at establishing a single civil code in India was the Special Marriage Act. This secular act is unbiased and does not support any one religion. The act’s primary goal is to create a lawful and amicable process for the solemnization of weddings between people of diverse religious backgrounds without disparaging any of them.
ISSUES IN THE IMPLEMENTATION OF A UNIFORM CIVIL CODE
To bring unity and integrity to our country, it is important to enact a uniform civil code. The initiative for a uniform civil code in India was first taken by feminists in the 19th century who demanded equal rights for women. The Lex Loci Report of 1840 recommended that personal laws should be kept outside the realm of codification[7]. The British government also felt the need for a uniform civil code. The SC has also highlighted the desire for a uniform civil code in the case of John Vallamattom v. Union of India[8].
For our legislators, enacting a unified civil code is a gigantic task. The people do not entertain any interference of government in their religious practices. They believe that a uniform civil code will force them to give up their antiquated religious customs and their religion does not allow them to do so. They tend to forget that India is a secular country and can put reasonable restrictions to protect the interests of people.
The foremost challenge that hinders achieving uniformity in personal law is the clash between freedom of religion conferred under Art. 25 and Art. 14[9] which confers equality and equal protection before the law. This is because personal laws are derived from religious texts, they are considered religious beliefs and hence they should remain untouched.[10]
Due to diversity in religion, it is a challenge for our legislators to enact one single legislation for the whole nation. Religion is considered the foundation of traditions and customs and it will be very difficult for any religion to let go of its long-practised customs[11]. People are quite sensitive when it comes to religion, regardless of the homogeneity. They believe that their faith is the best of all. If vigilance is not exercised when drafting legislation to replace personal laws, relations between two distinct religious groups may quickly deteriorate. Given that not every community would embrace the new, unified civil code, it is realistic to assume that there will be a range of responses and even protests.
CONCLUSION
The ongoing debate over a uniform civil code is not a new topic in our country. The growing concerns over crimes like love jihad and forceful conversions have once again sparked the demand for a unified law. Gender inequality has been rooted in personal laws so deeply that it is nearly impossible to remove as personal laws do not adapt to the changing needs of society. In a nation like India, women’s rights have always been a contentious issue. Particularly the Christian and Muslim personal rules, which are rigid and unchangeable, have been shown to discriminate against women from the outset. Offences that are punishable under IPC and CrPC are allowed by the personal laws as their customary practices. This should not be accepted in a civilised society. A crime is a crime irrespective of the religion. A Uniform Civil Code would hence prevent discrimination against women on religious grounds and bring gender equality into the sphere. Some retrograde laws must be altered to adapt to the changing conditions of India. It is high time that we realise the importance of the principle of ‘One Nation One Rule’ and make laws to secure justice.
Author(s) Name: Shivangi Agrawal (Chanakya National Law University)
References:
[1] Special Marriage Act 1954.
[2] The Constitution of India 1950 art 25.
[3] The Constitution of India 1950 art 21.
[4] Shafin Jahan v Ashok KM (2018) 16 SCC 368.
[5] Kumar Aditya, ‘Conflicting Fundamental Rights: Why do we need to codify Personal Laws in India?’ (Academike, 16 February 2015) https://www.lawctopus.com/academike/personal-laws-in-india accessed 23 June 2024.
[6] The Constitution of India 1950 art 44.
[7] India Today, ‘Uniform Civil Code: Journey, Destination and Features’ (India Today, 10 August 2021) https://www.indiatoday.in/news-analysis/story/uniform-civil-code-journey-destination-features 1839110-2021-08-10 accessed 24 June 2024.
[8] John Vallamattom v Union of India (2003) 6 SCC 611.
[9] The Constitution of India 1950 art 14.
[10] ‘Uniform Civil Code — Issues and Challenges and How to circumvent them?’ (2022) 3(1) JCLJ 987.
[11] Is it the right time for the Implementation of the Uniform Civil Code in India?, 2.3 JCLJ (2022) 1493.
