guj hc aug 19 order.pdf

C/SCA/10304/2021 ORDER DATED: 19/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10304 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10305 of 2021
==========================================================
JAMIAT ULAMA-E-HIND GUJARAT
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR MIHIR JOSHI, SENIOR ADVOCATE WITH MR MUHAMMAD ISA M
HAKIM(10874) for the Petitioner(s) No. 1,2,3
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MS MANISHA
LAVKUMAR, GOVERNMENT PLEADER WITH MS AISHVARYA GUPTA,
AGP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
VIKRAM NATH
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 19/08/2021
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM
NATH)
1. Both these Petitions, filed under Article 226 of the Constitution Of
India challenge the vires of the Gujarat Freedom Of Religion Act, 2003
as amended by the Gujarat Freedom Of Religion (Amendment) Act, 2021
(hereinafter referred to as the “Freedom Of Religion Act,2021”) have
prayed for the following reliefs :
“(A) THIS HON’BLE COURT MAY BE PLEASED TO hold and
declare Sections 2(a), 2(d), 3, 3A, 4, 4A, 4B, 4C, 5, 6, 6A of the
impugned Gujarat Freedom Of Religion Act,2003 as amended by
the Gujarat Freedom Of Religion (Amendment) Act, 2021 to be
ultravires the Constitution;
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C/SCA/10304/2021 ORDER DATED: 19/08/2021
(B) Pending admission, hearing, and final disposal of hte present
application, this HON’BLE COURT MAY BE PLEASED TO stay
the implementation of hold and declare Sections 2(a), 2(d), 3, 3A,
4, 4A, 4B, 4C, 5, 6, 6A of the impugned Gujarat Freedom Of
Religion Act,2003 as amended by the Gujarat Freedom Of
Religion (Amendment) Act, 2021 to be ultravires the Constitution;
...”
2. On 5.08.2021, this Court had, after hearing Mr Mihir Joshi,learned
Senior Advocate assisted by Mr.Muhammad Isa.M Hakim for the
petitioners and Ms Manisha Lavkumar,learned Government Pleader
assisted by Ms.Aishvarya Gupta, Learned AGP,on a request made by the
Learned Government Pleader granted ten days’ time to obtain
instructions. As there is a challenge to the State enactment, notices were
issued to the learned Advocate General also.
3. Today, when the matter was taken up for hearing, Mr Kamal
Trivedi, learned Advocate General along with Ms. Manisha Lavkumar,
learned Government Pleader assisted by Ms.Aishvarya Gupta, learned
AGP, has appeared and at the outset requested for time to put in a
response by way of an affidavit-in-reply.
4. Admit. Issue Notice. No notice be sent to the respondents as Ms.
Aishvarya Gupta, learned AGP waives service of notice. For the State to
file its reply, we grant 4 weeks’ time and a further 2 weeks’ time to the
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C/SCA/10304/2021 ORDER DATED: 19/08/2021
petitioners to put in their rejoinder. List on 30.09.2021.
5. Mr Mihir Joshi, learned Senior Advocate has pressed for interim
relief inasmuch as the amended Section 3 of the Freedom Of Religion
Act, 2003 (for short ‘the 2003 Act’), per se, prohibits marriage on a
presumption that such a marriage is for the purposes of conversion. The
concept of marriage has no bearing on conversion. He would invite the
attention of the Court to the penal provisions that can be triggered by
lodging a complaint by any aggrieved person under Section 3A, 4A and
4B of the 2003 Act.
6. Mr.Kamal Trivedi learned Advocate General appearing for the
State would submit that Section 3 of the 2003 Act cannot be read in
abstract. According to him, marriage per se is not prohibited but a
conversion actuated by fraud or allurement or a forcible marriage is
prohibited. The focal point is conversion by force or a fraudulent
marriage or a marriage by allurement. He would submit that once the
scheme of the Act is seen the purpose is to prohibit unlawful conversion.
The mechanism of investigation is well equipped by checks and balances
as no prosecution is instituted except with the previous sanction of the
District Magistrate. The offences under the Act shall not be investigated
by an officer below the rank of a Deputy Superintendent Of Police. Mr.
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C/SCA/10304/2021 ORDER DATED: 19/08/2021
Trivedi, learned Advocate General has drawn our attention to the
Statement of Objects and Reasons and also to the various provisions
which provide for the balances and checks in the 2003 Act and has
strongly contended that the statement made by Mr. Joshi, learned Senior
Advocate is not tenable. According to him, without an element of fraud,
allurement or coercion, a marriage inter-faith followed by conversion
would not amount to unlawful conversion and as such would not be hit by
the penal provisions.
7. Having heard Mr Mihir Joshi, learned Senior Advocate for the
petitioners and Mr Kamal Trivedi, learned Advocate General for the
State, at this stage, being conscious of the fact that subject to the detailed
examination of the Vires of the Act under challenge, certain prima facie
observations based on a plain reading of Section 3 of the 2003 Act need
to be made. They are as under:
(a) The Gujarat Freedom Of Religion Act, 2003 was initially an
Act brought into force in April 2003. According to the then
Section 3 of the 2003 Act, there was a prohibition of conversion of
any person from one religion to another religion by use of force or
allurement or by any fraudulent means.
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C/SCA/10304/2021 ORDER DATED: 19/08/2021
(b) By the Amending Act of 2021, which was brought into force by
way of a Notification dated 04.06.2021 a marriage itself is
presumed to be a medium for the purposes of unlawful conversion
if the marriage was by way of allurement, force or by fraudulent
means. A plain reading of Section 3 would indicate that any
conversion on account of marriage is also prohibited. The
submission of Mr. Trivedi, learned Advocate General that the
element of fraud, allurement or coercion which is sought to be
brought in by reading the Statement of Objects and Reasons and
the other provisions of the 2003 Act, may not be understood by a
common man. The interpretation of Section 3 of the 2003 Act as
Mr. Trivedi, learned Advocate General wants us to read would be a
subject matter of adjudication but prima facie on a plain reading of
Section 3 of the 2003 Act, we feel that marriage inter-faith
followed by conversion would amount to an offfence under the
2003 Act. Marriage itself and a consequential conversion is
deemed as an unlawful conversion attracting penal provisions.
(c) In the case of Shafin Jahan vs Ashokan reported in (2018)
16 SCC 368, the Supreme Court observed as under:
“The right to marry a person of one’s choice is integral to
Article 21 of the Constitution. The Constitution guarantees
the right to life. This right cannot be taken away except
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C/SCA/10304/2021 ORDER DATED: 19/08/2021
through a law which is substantively and procedurally fair,
just and reasonable. Intrinsic to the liberty which the
Constitution guarantees as a fundamental right is the ability
of each individual to take decisions on matters central to the
pursuit of happiness. Matters of belief and faith, including
whether to believe are at the core of constitutional liberty.
The Constitution exists for believers as well as for agnostics.
The Constitution protects the ability of each individual to
pursue a way of life or faith to which she or he seeks to
adhere. Matters of dress and of food, of ideas and ideologies,
of love and partnership are within the central aspects of
identity. The law may regulate (subject to constitutional
compliance) the conditions of a valid marriage, as it may
regulate the situations in which a marital tie can be ended or
annulled. These remedies are available to parties to a
marriage for it is they who decide best on whether they
should accept each other into a marital tie or continue in that
relationship. Society has no role to play in determining our
choice of partners.”
(d) From the perception of the common man, it appears 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.
(e) 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. This again puts the parties validly entering into an
inter-faith marriage in great jeopardy.
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C/SCA/10304/2021 ORDER DATED: 19/08/2021
(f) 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.
8. We are therefore of the opinion that, pending further hearing the
rigors of Sections 3, 4, 4A to 4C, 5, 6 and 6A shall not operate merely
because a marriage is solemnised by a person of one religion with a
person of another religion without force or by allurement or by fraudulent
means and such marriages cannot be termed as marriages for the purposes
of unlawful conversion.
9. The above interim order is provided only on the lines of the
arguments advanced by Mr. Trivedi, learned Advocate General and to
protect the parties solemnizing marriage inter-faith from being
unnecessarily harassed.
(VIKRAM NATH, CJ)
(BIREN VAISHNAV, J)
DIVYA
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