Read Judgment: Jamiat Ulama-e-hind Gujarat vs. State of Gujarat 

Pankaj Bajpai

Ahmedabad, August 23, 2021: The Gujarat High Court has ruled that the rigors of Sections 3, 4, 4A to 4C, 5, 6 and 6A of the Gujarat Freedom of Religion Act, 2003 shall not operate merely because a marriage is solemnized by a person of one religion with a person of another religion without force or allurement or fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion. 

While granting interim protection to the parties who solemnized an inter-faith marriage from being unnecessarily harassed, the Division Bench of Chief Justice Vikram Nathan and Justice Biren Vaishnav observed 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.

The observation came in answer to a petition challenging the vires of the Gujarat Freedom of Religion Act, 2003 as amended by the Gujarat Freedom of Religion (Amendment) Act, 2021, contending that the amended Section 3 of the 2003 Act, per se, prohibits marriage after religious conversion on a presumption that such a marriage is for the purposes of conversion. 

Accordingly, an interim relief was sought pleading that the concept of marriage has no bearing on conversion. 

On the other hand, counsel for the State argued that marriage per se is not prohibited but a conversion actuated by fraud or allurement or a forcible marriage is prohibited. 

After considering the arguments, the High Court found that in the case of Shafin Jahan vs. Ashokan [(2018) 16 SCC 368], the Supreme Court has observed that the right to marry a person of one’s choice is integral to Article 21 of the Constitution and such right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable.

The Division Bench noted that Section 6A of the 2003 Act places the burden of proof on the parties entering into an inter-faith marriage to prove that the marriage was not solemnized on account of any fraud, allurement or coercion, which again puts the parties validly entering into an inter-faith marriage in great jeopardy.

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, added the Bench. 

The High Court thus granted interim relief to the petitioners pending further hearing. 

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