INTER PERSONAL LAW

CONFLICT (EFFECT OF
CONVERSION)
 OVERVIEW OF CONVERSION
OF RELIGION
• It has been stated in the Constitution of India that one of the
fundamental rights of the people of India is the freedom of
religion.
• In 1947 India got independence and the Constitution in 1950
declared India as a secular State.
• According to secularism, every citizen of the country has a
fundamental right to practice his or her religion peacefully.
• However, we have been hearing a number of incidents of
religious intolerance that have led to riots and violence in our
country from a very long time.
• The news like Muslims being converted to Hindus in Agra has
really heaped a great deal of controversy.
• Everyone has a right to follow his religion as per his birth or as
per his wish.
• It’s the constitutional right to choose his or her own religion,
but making people forcibly change their religion or luring people
to change their religion should be considered as crime.
• India has four major
religions – Hindus
(Sikhism, Jainism and
Bhudhism) , Islam, Parsis
and Christians, where
Hindus form 80% of the
population and others are
the minorities.
• There are also States in
India with majority
populations of other
religions like in J&K,
where we have Muslim
majority, Punjab with Sikh
majority, and Mizoram,
Nagaland and Meghalaya
with Christian majority
and so on.
 WHAT IS RELIGIOUS
CONVERSION?
• Religious conversion means adopting a new
religion, a religion that is different from his
previous religion or religion by his birth.
• There are various reasons for which people
convert to different religion:
(I) Conversion by free will or free choice.
(II)Conversion due to change of beliefs.
(III)Conversion for convenience.
(IV)Conversion due to marriage.
(V) Conversion by force.
 RELIGIOUS CONVERSION IN
INDIA
• In ancient history literature, we have come across religious conversions
in India.
• For instance, when Brahmanism was propagated in India, there were
many others, like Ashoka the Great and Mahavira, who promoted
Buddhism and Jainism.
• Emperor Ashoka sent ambassadors to various parts of the country and
foreign kingdoms and he himself undertook religious journeys to inspire
others to take up Buddhism.
• After the advent of the Mughal emperors, Islam was propagated.
• During the 15th century, Sikhism also came into existence.
• Christianity in India traces back to the coming of Saint Thomas, the
Apostle in India, around 48 AD.
• The British Government also promoted Christianity.
• Conversion was common in India since time immemorial, some out of
their own will and some out of threats.
• In this modern age of science and technology, this has continued even
today.
• There were no anti-conversion
laws in British India. However,
many Princely States came up
with on their own anti-
conversion legislation like the
Raigarh State Conversion
Act 1936, the Patna
Freedom of Religion Act of
1942, the Sarguja State
Apostasy Act 1945 and many
more and these were mainly
against conversion to
Christianity.
• After independence, in 1954
the Indian Conversion
(Regulation and Registration)
Bill was passed and in 1960
the Backward Communities
(Religious Protection) Bill was
passed but both these Bills
had to be scrapped off.
 ARTICLE 25 OF THE INDIAN
CONSTITUTION
• In Article 25 of the Indian Constitution, citizens of the country have
the right to freedom to practise, profess and propagate their faith in a
manner so that it does not disturb the public, the law and order and
does not affect any one’s health and morality adversely.
• The Article 25 of the Indian Constitution is a basic human rights
guarantee and as such the anti-conversion laws in India must be given
its due importance.
• According to the anti-conversion laws, no person can be forced or
induced to be converted and this needs to be prevented.
• On the basis of this, we have a number of anti-conversion or so-called
“Freedom of Religion” laws.
• Several Indian States had passed “Freedom of Religion Bills” in the
past to prevent people from converting to Christianity, like as in
Arunachal Pradesh in 1978, Gujarat in 2003 and Madhya Pradesh and
Chhattisgarh in 2006. In 2007, Himachal Pradesh became the first
Congress party-ruled State to adopt a law banning illegal religious
conversions.
• However, these laws
considered forced
conversion of religion as
a cognisable offence
under Sections 295 A
and 298 of the Indian
Penal Code and it is a
punishable offence, by
different durations of
imprisonment and fines.
• For others, the anti-
conversion laws in
various Indian States
were seen as a means to
promote Hindutva or the
Hindu nationalism.
Prohibition of Unlawful Conversion
of Religious Ordinance,2020
• Law prohibits conversion from one religion to another by
“misrepresentation, force, fraud, undue influence, coercion, allurement
or marriage”.
• Marriage will be declared “shunya” (null and void) if the “sole
intention” was to “change a girl’s religion”.
• The persons forced the girl to change religious conversion may face
jail term of up to 10 years if the girl is minor, a woman from the
Scheduled Caste or Scheduled Tribe, if the person involved religious
conversion on mass scale. For the rest of the cases, the jail term
ranges from 1 to 5 years.
• The law also provides for the way to conversion. The person willing to
convert to other religion would have to give it in writing to the
District Magistrate at least two months in advance.
• The burden to proof would be on the person who caused the
conversion or the person who facilitated it. If any violation is found
under this provision, then she/he will face a jail term from 6 months
to 3 year.
• If any person reconverts to his immediate previous religion, then it
shall not be deemed to be a violation of the ordinance.
 Rationale behind the enactment
of anti-conversion laws:
• Firstly, the threats of forceful conversion:
Force not solely embody physical force to
convert a person belongs to one faith to a
different one however additionally it includes
mental force like the “threat of divine
displeasure”.
• For example, assume if a missionary informs a
person that only Christians are allowed entry
into heaven – a core part of the faith – that
could also be construed as “force”.
– The Orissa High Court in Yulitha Hyde v. the
State of Orissa (1972) case upheld this
interpretation of “force” (Physical and mental).
• Secondly, the problem of Inducement or
allurement: Odisha’s anti-conversion law mentions
allurement or inducement as an offering of any gift
or gratification, either in cash or in-kind, and also
includes a grant of any benefit, which is pecuniary
or otherwise. In Rev. Stanislaus vs State of
Madhya Pradesh (1977) case the court upheld this
definition.
• Thirdly, Religious conversion is not
a Fundamental Right: Supreme Court in Rev.
Stanislaus vs State of Madhya
Pradesh (1977) case held that the conversion isn’t
a fundamental Right and so could be regulated by
the state.
• Both Odisha and Madhya Pradesh laws were upheld.
This act as the legal basis
for other such laws created by other States.
• Fourthly, the aim of all anti-
conversion laws enacted by various States are
same, such as to constrain the ability of
communities and individuals to convert from
their own religion to another in the name of
protecting those sectors of society—namely
women, children, backward castes and
untouchables etc.
• Court’s judgement in Rev Stanislaus case:
• The freedom of religion enshrined in Article 25
is not guaranteed in respect of one religion only
but covers all religions alike… What is freedom
for one is freedom for the other in equal
measure and there can, therefore, be no such
thing as a fundamental right to convert any
person to one’s own religion
 Issues with anti-conversion laws
• The Ordinance route taken by the
government for promulgating this law is
controversial as the law is not containing
any specific urgency for this route.
– For promulgating an ordinance, 3 conditions
must be satisfied
• State Legislature should not be in session;
• Circumstances should exist for promulgating an
ordinance;
• Circumstances must warrant immediate action.
– However, disclosing the circumstances and
urgency for the same IS NOT mandatory
• Police do not require a
special law to prevent a
fraudulent or coercive
inter-faith marriage.
• It can do so under normal
circumstances too as in the
case of child marriages.
• Section 7 authorises the
arrest of a person by a
police office on receipt of
the information that a
religious conversion is
taking place.
– Arrest doesn’t require a
magistrate order or warrant.
– Information can be a false
news as seen in some of the
recent cases.
• In case, a person want to convert but not
marry, she/he require to inform a DM 2 month
in advance. Then DM requires the police to
inquire the real purpose of conversion and file
a report.
– It leaves the scope of heavy pressure on the
person from all around i.e. police and right groups.
• Section 12 of the article puts the burden of
proof that it is not through coercion or fraud,
on the person causing conversion through
marriage or by any other way.
• This law through all the above methods is
encroaching upon the right to privacy and
violates the right to life, liberty and dignity of
the consenting adults.
 How to deal with the issues?
• Firstly, the need for uniformity, Article 18 of the
Universal Declaration on Human Rights mentions
everyone has the right to freedom of religion including
changing their faith. That is included in the State laws
but there is a wide variation in the state laws such as
prison terms, burden of proof, the procedure to get
converted, etc.
• Since the conversion falls within the “State list”.
• Central can frame a model law like Model law on
contract farming etc.
• Secondly, State while enacting anti-conversion
laws should also respect their Freedom to get
convert and should not put any vague or ambiguous
provisions for the person who wanted to convert of his
own will.
• Thirdly, awareness to
the people: People
also need to be
educated about the
provisions and ways of
Forceful
conversions, Induceme
nt or allurement, etc.
• Fourthly, disclosing
circumstances leading
to adopting the
ordinance route
should be made
mandatory at both
state level and central
level.
• Fifthly, according to
the USCIRF (United States
Commission on International
Religious Freedom), some
observers note that “anti-
conversion laws create a
hostile, and on occasion
violent, environment for
religious minority
communities since they do not
require any evidences to
support such accusations of
wrongdoing.
– So, the anti-conversion laws
also need to include
a provision to mention the
valid steps for conversion by
minority community
institutions.
 In the end ..
• Conversion in India is legal but not
the conversion made
using force/allurement/inducement to convert
people.
• Various Court judgments have made conversion
laws a legal one but not the laws which
have whimsical/fanciful/arbitrary laws by
State.
• So, there is a clear limit for the State to
intervene in the religious conversion, this can
be further demarcated by small but significant
steps such as model law, enhancing awareness,
etc.
 SPECIAL MARRIAGE ACT,
1954
• The Special Marriage Act is a civil law enacted in 1954
that allows the solemnisation of marriages between any
two individuals without religious customs, rituals, or
ceremonial requirements.
• More importantly, the Special Marriage Act critically
creates provisions for the marriage of interfaith
couples without religious conversions — a requirement
for marriages under personal laws such as the Hindu or
the Muslim marriage acts.
• There exist some critical fundamental differences
between civil marriages under the Special Marriage Act
when compared to marriages under personal laws. These
provisions are most problematic for couples who wish to
marry against the wishes of their families.
 Difference between marriage
under Special Marriage Act and
personal laws
• The first difference and a critical requirement
under the Special Marriage Act is the 30-day
notice period.
• Under this, applications are usually accepted at the
Sub-Divisional Magistrate’s (SDM) office, or with a
marriage officer located in the district where one
of the individuals reside.
• After checking the application, a notice is sent to
the couple’s permanent address (an address most
young people share with their parents and families),
along with being displayed at the SDM’s notice
board.
• Many couples who elope prefer to marry
outside of their local jurisdiction to avoid
familial pressure, and although provisions
allowing this do exist, notices are still sent to
the marriage officer of the local district.
• Such displays have also made couples
(especially interfaith couples) a target of
familial and societal harassment from
vigilante groups.
• Such a clause is absent if one plans to marry
under personal law, thus the existence of it
under the Special Marriage Act is
discriminatory and violates the right to
equality (Article 14).
• Second, marriage under the
Special Marriage Act requires
an extra witness – three,
instead of two in the case of
marriage registration under
personal laws.
• Witnesses play an important
role under the Act, as they can
be called to testify in case any
objections are raised during
the 30-day notice period.
• This extra responsibility might
make one think twice before
agreeing to be a witness,
adding an extra layer of
complexity in the overall
process.
• Despite these issues, couples who
choose to use the Special
Marriage Act find that there is a
complete lack of transparency
around the process.
• In addition, many states such as
Delhi have made the registration
process completely online, which
accentuates issues of access,
since this requires basic
legal/computer literacy and
facilities such as internet
services.
• A lack of this can result in
corruption and potential
harassment by middlemen,
especially in the case of
interfaith couples.
 Surveillance and deterrence
• The 30-day notice period, the requirement
for an extra witness, and the need to
inform families are elements that are
absent under personal laws.
• Marriages under personal laws are possible
with immediate effect without parents’
knowledge or permission.
• Evidently, systematic biases exist for
couples who wish to marry under the
Special Marriage Act.
• By justifying such clauses and installing
checks at every step of the Special Marriage
Act, the monitoring of young people’s lives by
parents is now getting validity in the law
through arguments that prioritise
surveillance over an individual’s privacy.
• The Puttaswamy judgment declared privacy
as a constitutionally protected right,
reiterating that “personal choices governing a
way of life are intrinsic to privacy and that
the pursuit of happiness is founded upon
autonomy and dignity.”
• However, this right is regularly flouted and
put aside when it comes to surveillance of the
state over its citizens.
 Intersection of Special
Marriage Act and ‘Love Jihad’
• The Uttar Pradesh government has already cleared
a law against forceful religious conversions.
• The law, however, is now being used to target consenting
interfaith couples, including those whose parents’ agree to the
marriage.
• Other states, such as Madhya Pradesh and Haryana, are now
contemplating laws on ‘Love Jihad’ or ‘anti-conversion’, which
use the garb of forced conversions to target inter-faith
marriages and require individuals to take special permissions if
they wish to convert their religion in order to marry under
personal laws.
• Contrary to the premise of the Special Marriage Act that
accepts the existence of interfaith relationships, the current
‘Love Jihad’ laws create scenarios that suggest that every case
of inter-faith marriage is actually a case of forced conversion.
• Keeping in mind the
complexities of the Special
Marriage Act highlighted in
previous slides, and the
criminalisation of interfaith
marriages in the name of
forced conversions, couples
are being forced to choose
between the devil and the
deep blue sea.
• This twin monitoring from
the law and the extreme
Right is performing its
intended task of
discouraging interfaith
marriages and maintaining
religious ‘purity’.
 FOR INSTANCE IN A CASE
• The Petitioner before the High Court of Gujarat
claimed a declaration that the Parsi woman was
entitled to enter the Tower of Silence and to
attend the funeral of her parents in the event of
their demise at the Fire Temple.
• However, the Gujarat High Court held that a Parsi
Zoroastrian woman marrying a Hindu man would be
deemed to have become Hindu.
• It came to this conclusion on the basis of the
common law “doctrine of merger” of legal
personality of the wife with the husband upon
marriage (including the religion of the husband) and
held that by virtue of her marriage, she ceased to
be a Zoroastrian and become a “deemed Hindu”.
• The Petitioner, who was born a Parsi
Zoroastrian and remains a devout Zoroastrian
to this date, married a Hindu man under the
Special Marriage Act of 1954 by complying with
all necessary procedure under the Act.
• She changed her name when moving into her
matrimonial home but continued professing
Zoroastrianism throughout the time.
• However in her home in Valsad, Gujarat, since
two Parsi Zoroastrian women who had similarly
married Hindu men but did not convert to
Hinduism, were denied the right to perform the
last rites and ceremonies of their parents by
the Valsad Parsi Trust; on the ground that they
lost their religion (i.e. Zoroastrianism) after
marriage.
• Apprehending that she would not be able to
perform the last rites of her ageing parents in light
of this conduct of the Trustees, she tried
reasoning with the Trustees requesting them to
allow her to perform the funeral ceremonies of her
parents in the event of their death in the
Dungerwadi and Agiary.
• The Trustees, however remained adamant on
barring Parsi Zoroastrian females entering into
inter-religious marriages from entering into Parsi
institutions or participating in funeral rites.
• Consequently she was constrained to move the
Gujarat High Court under Article 226 of the
Constitution of India seeking a Writ, order or
direction to the Trustees to allow her to perform
funeral ceremonies of her parents in Valsad in the
event of their death.
• The matter came to be listed before a 3-
Judge Bench of the Hon’ble Court, which by a
majority of 2:1 turned down her Writ Petition.
• The majority judgment held that there is a
“deemed conversion” in an inter-religious
marriage for the woman and that therefore
she ceased to be a Zoroastrian.
• The condition of the Trust was that only a
Parsi and a Zoroastrian could enter the temple
and according to the Trust, while she was a
Parsi by ethnic origin, she was not a
Zoroastrian and not entitled to the benefits
of the trust which included running the fire
temple and conducing funerals.
• The conclusion of the majority judgment
was based on the flawed interpretation of
Special Marriage Act, implicit adoption of
the “doctrine of coverture” and an
erroneous interpretation on the issue of
how religion is acquired by an individual.
• After examining the provisions of the
Special Marriage Act, the High Court in its
majority judgment observed that in the
Special Marriage Act there is no express
provision in the SMA protecting the
religion of the woman hence there as a
deemed conversion.
• The majority further noted that the
English doctrine of coverture was never apart
of Hindu Law, Muslim Law, Parsi Law or Jewish
Law as in Indian law, women were regarded
as feme sole; and noting so, in the same
breath extinguished the independent legal
identity of a woman in the following terms:
• “…In all religion, be it Christian, be it Parsi, be
it Jews, the religious identity of a woman
unless specifically law is made by the
Parliament or the legislature, as the case may
be, as per the religions, shall merge into as
that of the husband…
• The Court therefore distinguished the position of
family as against “society at large” and reasoned
that if the woman would not be deemed to have
converted to the man’s religion on marriage, it
would be difficult to ascertain the religion of the
child in such marriages:
• “…therefore we find it proper to observe that in
normal circumstances, when the marriage takes
place between a male and a female belonging to a
different religion, it should be presumed and
considered that the woman after marriage has
merged into the religion of her husband and such
will be the identity of their family originating from
their marriage in comparison to the society at
large and such identity would stand extended to
their children too. Same situation would remain in
normal circumstances even for the man and woman
who have married under Special Marriage Act.”
• The Petitioner contended
that she had a right to
continue her religion which
was guaranteed by Article 25
of the constitution.
• In answer the majority
judgment ruled that no
evidence or material had been
brought before Court by the
Petitioner to prove that the
right of a Parsi Zoroastrian
woman entering into an inter-
religious marriage – to entry
and performance of last rites
and ceremonies into an Agiary
or Dungerwadi were part of
essential and integral
practices of the Zoroastrian
religion.
• The minority dissenting judgment however,
appreciated the object of the Special Marriage Act
and held that a Parsi Zoroastrian woman had not
converted to religion of the husband due to the
reason that the parties had married under the
Special Marriage Act which allowed parties to
retain their respective religions.
• The reasoning was based on the interpretation of
Section 4 of the Act and the dissenting judgment
observed therein:
• “Therefore, Section 4 of the Act of 1954 makes a
special provision also enabling such couples to
solemnize the marriage while still retaining their
respective religious identities and sentiments. Such
provision would apply notwithstanding anything
contained in any other law for the time being in
force. This is in tune with the Constitutional ethos
which envisages a secular State with liberal
society…”.
 IN THE END …
• Religion is a matter or active faith and must be acquired by an active
process of following the rituals and norms of a religion.
• A child for example does not acquire a religion either parent and his or
her religion depends on the manner upbringing.
• At the age of majority he/she can change religion when he/she fully
understands the consequences of their decision.
• Change of name does not signify change of religion.
• Surely it must have occurred to the judge that several persons are
given names at birth which do not come from any religious texts and
several others have names of religions to which they do not owe any
allegiance.
• Even in case of conversion to Hinduism, for instance, it was held that a
mere theoretical allegiance or bare declaration does not convert a
person to Hinduism, but there must be a bona fide intention
accompanied by conduct unequivocally expressing the intention is the
sufficient evidence.
• The concept of deemed conversion is therefore unknown to law. To
deny a woman the right to pursue the religion of her choice and to
compel her to follow the religion of her husband would be a denial of
the right guaranteed to her under Article 25.
• The petitioner argues that the identity of a woman
does not merge with that of her husband on
marriage, and that the “doctrine of coverture“ has
long been abandoned in the country of its origin i.e.
the United Kingdom.
• Most importantly, the acceptance of the doctrine
of coverture would be to deny to women the right
to equality and would result in discrimination based
on sex which is prohibited under Article 15 of the
Constitution of India.
• Strangely, it is nowhere suggested by the Judge
that a man loses his religion on marriage and is
deemed to belong to the religion of his wife!
• The outcome of the case will be awaited by many
who are committed to gender justice and have
fought long battles to assert the right of women
not to be discriminated against in all spheres of
human endeavour.
• An appeal is now pending in the Hon’ble Supreme Court.
• There are issues of constitutional importance involved
in this appeal.
• What is the object of the Special Marriage Act?
• Can a woman’s legal identity and in particular her
religion be deemed to have merged with that of the
husband?
• Does the Constitutional protection of Article 25
extend to the Petitioner’s case?
• Whether the remedy under Article 226 of the
Constitution of India be extended in the Petitioner?
• Intervention applications have been filed by others
who have married under the Act and belong to
different religions, a Hindu married to a Muslim and a
Christian married to a Muslim.
• Both couples have brought up their children with
secular values leaving it to them to choose their
religion on attaining majority.
 FOR INSTANCE
• Uttar Pradesh, the eighth Indian state with
an anti-conversion law, passed the Prohibition
of Unlawful Religious Conversion
Ordinance last year i.e. 2020
• Its stated goal is to prevent a change of
religion through force, inducement, and so on.
• On the other hand, India has the Special
Marriage Act, 1954 (SMA), which governs civil
marriage between individuals of different
faiths.
• On the face of it, the SMA
promotes secularism.
• However, even anti-
conversion legislation
ostensibly protects the
religious identity of
individuals.
• In this sense, both
legislations relate to one
another.
• The problem is that the
SMA never lived up to its
purpose, while anti-
conversion laws aggravate
the troubles of couples who
seek to marry outside their
religion.
• As a result, both hamper constitutional rights
under Articles 14, 19, 21, and 25, which are
known to be intrinsic to individual development.
• These rights cannot be abrogated except due
to national security, public order, and related
concerns.
• To elaborate, according to Article 21, nobody
can be deprived of life or liberty except
according to the procedure established by law.
• The right to privacy flows from Article 21 since
it is inseparable from an
individual’s personality.
• The State cannot justifiably intrude into such
rights unless it is just, fair and reasonable.
 ARTICLE 21
• Under the SMA, the sub-district
magistrate must be given a notice of 30
days of an interfaith marriage.
• The SDM investigates the application,
sends a notice to the couple’s house
(meaning family), and affixes the notice at
the offices of the concerned authority as
well.
• This supposedly permits any member of
the public to object to the proposed
marriage on specific grounds.
• However, marriage is also a private affair
while the process of the Special Marriage
Act infringes on a couple’s privacy at every
step. It violates their dignity and liberty
since their choice to start married life is
put up for general scrutiny.
• Similarly, certain anti-conversion laws require
a 30-day (or 60-day) notice of intention to
change one’s religion.
• In Uttar Pradesh for example, the police are
mandated to investigate the purpose of conversion.
• A converted person has to then appear before the
authority to confirm his/her identity.
• His or her relatives can even lodge an FIR against
the conversion.
• Hence, at every step, an individual is supposed to
disclose his intention to convert and other personal
information.
• In some instances, Hindus have converted to
Buddhism to discard the oppression of caste
identity.
• Subjecting a person’s choice to an investigation,
which can often end up denying them the right to
change their religion, is a huge blow to their
dignity and liberty and Article 21 rights.
 ARTICLE 14
• Article 14 says the state ensures equality before the
law.
• However, the state can introduce preferential
treatment for disadvantaged groups to bring them on
par with others.
• Hence, a reasonable classification has been created,
which is to be tested against whether it comprises
“intelligible differentia”, has a “rational nexus” with its
professed goal and is not manifestly arbitrary.
• Under the SMA, apart from prior notice, inter-faith
couples are required to bring three witnesses to testify
their marriage.
• However, those marrying under personal laws do not
have the notice mandate and only require two
witnesses.
• Thus, these provisions violate Article 14, since
there is no basis for differentiating couples in
the anti-conversion laws from those marrying
under personal laws.
• Above all, prior intimation of information does
not help the state achieve any rational goal.
• These provisions are therefore manifestly
arbitrary and create an irrational classification.
• This violates first-time convertees’ Article
14 rights since there is no basis to
differentiate them from others. There is
also no rational nexus to the objective the
state purports to achieve.
 ARTICLE 19
• Article 19 provides for freedom of speech and
expression.
• In some instances, courts have equated it with an
individual’s right to choose under Article 19.
• The SMA takes away this choice the moment it calls for
objection to interfaith marriages by giving families a
say in the matter.
• It also takes away people’s right to express their
choice of partner.
• The Allahabad High Court recently read down Articles
4, 5, and 7 of the SMA for violating individual
autonomy, liberty, and privacy under Article 19 and 21.
• However, the final say on the SMA is still pending
before the Supreme Court.
• Similarly, anti-conversion
laws impinge on a person’s
desire to convert by
permitting the state to
dictate who can and cannot
change their religion.
• In the Uttar Pradesh
ordinance, if two or more
persons are changing their
religion, it is defined as a
“mass” conversion, regarded
as a serious event.
• A family converting
together will be regarded
as a mass conversion event
in which the state can
interfere, thereby
abrogating the entire
family’s Article 19 rights.
 ARTICLE 25
• Article 25 guarantees freedom of conscience
and allows all individuals to freely profess,
practice and propagate their religion, subject
to public order, health, and public morality.
• The state is allowed to introduce laws to
regulate economic, political, or secular
activities associated with religion.
• In certain anti-conversion laws, conversion for
marriage is penalised as an independent ground.
• Curtailing the right to convert for marriage
severely hampers the right to freedom of
religion—and to marry.
• The “right to propagate” religion includes the
right to disseminate and educate others
about religion.
• However, anti-conversion laws consider the
argument of divine displeasure equivalent to
the use of force.
• In other words, a Christian who preaches
that non-believers run the risk of inviting
divine displeasure, and can face persecution
even if it in no way affects public order,
morality, or health.
 SOCIAL IMPACT OF BOTH
LAWS
• The SMA provides a platform for interfaith marriages
that are not within the purview of personal codes.
• However, the procedure for disclosing
information gives ample time for the families to harass
the couple or engage in “honour” killings.
• Such provisions have a greater impact on women
who defy patriarchal norms that deny them agency.
• To bypass the cumbersome processes of the SMA,
couples prefer to convert for marriage as they
find personal law procedures at least less
cumbersome and more accessible and familiar.
• Ironically, they also can give couples more privacy.
• The stringent provisions of
the SMA are out-dated in
today’s context of the right
to privacy .
• The modern vision of a just
society is where individuals
are the focal point of the
Constitution, and laws are
formulated from the prism
of individual dignity.
• The SMA needs to be more
accessible. Its provisions
need amendments to come
in sync with the times.
• The SMA was enacted to provide a safe platform for
interfaith marriages while anti-conversion laws seek
to restrict religious conversions (ostensibly via fraud,
force, etc.).
• However, both sets of legislation produce some
disturbing repercussions for society.
• The anti-conversion laws use lacunae in the SMA, while
the latter violates fundamental rights.
• The SMA must be reformed from the lens of individual
rights rather than a religious viewpoint. This will help
establish a more integrated Indian community.
 OTHER EFFECTS OF
CONVERSION :
(A)CONVERSION TO OTHER RELIGION
EFFECT ON THE RIGHT TO
INHERITANCE IN THE PROPERTY- A
person who converts to another religion could
not inherit. Like a Hindu if converted cannot
inherit from his/her Hindu parents. Likewise,
under Muslim Law a convert from Islam to
some other religion is prohibited from
inheriting the property. The stated rule has
been abrogated by the Caste Disabilities
Removal Act, 1850.
(B) CONVERSION EFFECT ON MARTIAL
RIGHTS- There are certain rules which are
applicable when a party to a marriage converts
to other religion. Suppose a Muslim Husband
converts to Some other religion, the current
marriage is said to be dissolved. Dissolution of
Muslim marriage Act, 1939 has modified the
situation of a wife after conversion to another
religion. The wife can now on her conversion
seek divorce on any of the conditions mentioned
in statute. Under hindu marriage act conversion
of religion is a ground of divorce for both the
parties Under section 13 of the Hindu Marriage
act, 1955.
 #Vilayat v. Sunila (1983)
• In this case the question was whether a Hindu husband
after conversion to islam can seek divorce under Hindu
law. Leila Seth J. answering the question, held that he
could do so provided at the time of the presentation of
the petition one of the parties to the marriage is not
hindu. In short, Justice was of view that personal law
of the parties according to which marriage took place
rules the rights of the parties as to divorce or
dissolution. Now, suppose both the parties converted to
islam. The question that arises now is whether they can
claim divorce under Hindu Law.
• It was held in Khambaatta v. Khambatta that in such
situation divorce by talak under muslim law would be
more appropriate as both the husband and the wife has
converted to Islam.
(C) CONVERSION EFFECT ON RIGHT TO
CLAIM MAITENANCE- Under Section 24 of
the Hindu Adoptions and Maintenance Act, 1956
conversion from Hinduism, restricts the right of
convert to claim maintenance. But if a husband
renounces Hinduism, his Hindu wife becomes
entitled to separate residence and maintenance
from him under Section 18 (a) (f) of the Hindu
Adoption and Maintenance Act, 1956.
In Muslim Law, if a person converts to other
religion, it affects a forfeiture of the pre-
existing maintenance rights. When a husband
renounces Islam, the marriage comes to an end
and the wife can claim maintenance from husband
during Iddat period.
(D) CONVERSION EFFECTS ON
GUARDIANSHIP RIGHTS- In guardianship
court always looks upon the welfare of the
child. As per Section 13 of the Hindu
Minority and Guardianship Act, 1955 welfare
of the child is of paramount consideration.
So whenever the parents converts to
another religion, this factor is taken into
consideration while appointing person as
guardian. If a mother converts to another
religion, it does not effect her right to
guardianship till the time her conversion do
not come in between the welfare of the
child.