Only Willing Consent

Context: Many state governments are considering enacting an appropriate law to stop marriages which they term as “love jihad”. It is not for the law to decide on any other matter concerning the marriage of two adults.

Arguments against the regulation of marriage by the State:

• Violates the Free Choice: 

• The right to marry a person of one’s choice is a guarantee under Article 21.

• Freedom of conscience, the practice and propagation of a religion of one’s choice, including not following any religion, are guaranteed under Article 25.

• Offends the notion of individuality and basic freedom: The right to marry a person of one’s choice flows from the freedom of individuality, naturally available to any individual.

• The obsolete notion of marriage as the foundation of civilised society: as inferred through the recent judgements by larger benches of the Supreme Court.

Some Judicial Proceedings related to marriages:

• Supreme Court in 1965: “ A Marriage is not approved unless the essential ceremonies are proved to have been performed” can only be read if one partner denied the marriage.

• Sarla Mudgal (1995) and Lily Thomas (2000) case: The issue was of Hindu married men committing bigamy to avail a second marriage, by converting to Islam.

• The SC concluded that the second marriage of a Hindu husband, after his conversion to Islam, would not be valid in view of Section 494 of the Indian Penal Code. 
• This diluted the debate of free choice of faith merely because at some of a person decides to change his/her faith leading to polygamy (which is already dealt under the Indian Penal Code).