Gujarat HC declines govt plea to lift stay on sections of ‘love jihad’ law

Gandhinagar: Rejecting the state government’s plea to rectify its August 19 order, the Gujarat High Court on Thursday refused to vacate its stay on Section 5 of the Gujarat Freedom Of Religion Amendment Act 2021, noting that it couldn’t find any reason to make any changes.

The court also said that the stay on Section 5 remained effective only for inter-faith marriages.

Appearing before a bench of Chief Justice Vikram Nath and Justice Biren Vaishnav, Advocate General Kamal Trivedi, on behalf of the state government, argued that Section 5 has nothing to do with marriage per see and therefore, August 19 order staying it needs rectification to the extent it mentions Section 5.

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“Today if I want to convert voluntarily without any allurement or force, or any fraudulent means, I cannot seek permission as Section 5 is stayed. This section applies to normal conversions too,” he argued.

In response, the Chief Justice said: “Marriage was not under Section 3 prior to the amendment, but now because of marriage coming into Section 3, a conversion for marriage would also require Section 5 permission. So in that sense, we have only stayed in the context of marriage. We have stayed Section 5 with respect to marriages only. We have not stayed Section 5 as a whole.”

As the AG argued that he had no occasion to argue over Section 5, and because of the court’s order staying Section 5, voluntary conversion will be out of Section 5 and therefore, no one will go for it.

At this, Justice Vaishnav orally observed: “Now you will haul up a person by saying that no previous permission was taken under Section 5, even if the marriage is lawful and the interfaith marriage is by consent, you will say breach of Section 5.”

Appearing on behalf of the petitioner, senior advocate Mihir Joshi argued that if Section 5 was not included in the stay order, then the court’s entire order won’t operate and thereby, will become unworkable.

“If somebody wants to get married (inter-religious), the presumption is that it is unlawful unless permission is taken under Section 5. Since the Court has stayed Section 5 only in relation to marriage solemnised between consenting adults, the provision will not be deemed to be stayed for individual conversions,” he submitted.

In its order, the court said: “We don’t find any reason to make any changes in the order passed by us on August 19 (putting an interim stay on certain provisions of the Gujarat Freedom Of Religion Act). We are therefore of the opinion that pending further hearing, the rigors of Section 3, 4, 4A to 4C, 5, 6, and 6A shall not operate merely because marriage is solemnised by a person of one religion with another religion without force or allurement or fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion. The above interim order is provided only on the lines of the arguments made by the learned Advocate General Mr Trivedi and to protect the parties of inter-faith marriage being unnecessarily harassed.”

While protecting inter-faith marriages by consenting adults from the rigours of the law, the court had, prima facie, observed that the law “interferes with the intricacies of marriage including the right to the choice of an individual, thereby infringing Article 21 of the Constitution Of India”.

The division bench comprising Chief Justice Vikram Nath and Justice Vaishnav observed that the provisions of the law, commonly known as the ‘love jihad’ law, put parties who have validly entered into inter-faith marriage “in great jeopardy”.

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