Gender Issues | Religion & Law
April 7, 2021

Shashank Pandey

Shanshank is one of the founders of The Law Culture. He is a final year student at RMNLU. He is primarily interested in Intellectual Property Rights, Labour Laws, Arbitration and Constitutional Law.

“Young women want to be free from violence, free to study, to reclaim public spaces, free to marry whom they want, or not marry at all.”

Kavita Krishnan in her book Fearless freedom

Love Jihad is a term coined by the Syro-Malabar Catholic Church in Kerala. Increasing instances of inter-faith marriages (especially, Christian-Muslim unions) had become a matter of ‘worry’ in the Church. This practice was termed “Love Jihad”. The Commission for social harmony of the Kerala Catholic Bishops Council reported that there had been 2,868 female victims of the “Love Jihad” in Kerala from 2006 to 2009. However, in February 2020, the government told the Lok Sabha (lower house of the Parliament) that there is no such term as “love jihad” under the extant law and no cases of Love Jihad have been reported by any central agencies. 

Kerala High Court in Shahan Sha v State of Kerala observed an “alleged” movement called Romeo Jihad” or “Love Jihad” which is conceived by a section of Muslims. According to the court “…the idea appears to be to convert girls belonging to other religions to Islam.” (Para 15)[1]

The term gained traction when the Chief Minister of Uttar Pradesh suggested bringing a law to curb the incidents of “love jihad”. The statement was made in reference to the single judge Bench decision of Allahabad High Court in Priyanshi @ Km Shamren and Others v State of UP. Within a few weeks, this judgment was overruled by the division bench of the Allahabad High Court in Salamat Ansari v State of UP. The court also overruled Noor Jahan Begum @Anjali Mishra & Anr v State of UP & Ors (Priyanshi judgment relied on this judgment) and observed that both Priyanshi and Noor Jahan were termed as bad in law by Allahabad HC in Salamat Ansari judgment. The judgment gave primacy to individual liberty and the right to choose a partner as enshrined under Article 21 of the Constitution over the court’s authority to ascertain the religion of an individual (in conversion instances).

Many Indian states had introduced their own version of the Freedom of Religion legislations. Other states that have enacted such laws are: –

The first five dealt only with the forceful religious conversion and were brought in pursuance of the rampant conversion carried out by Christian missionaries especially in tribal areas (1st generation). Uttarakhand and Himachal Pradesh introduced marriage in the Act (2nd Generation). Uttarakhand legislation authorises even the non-parties to the marriage to file such complaints.

UP Cabinet passed the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 (“UP Ordinance”). The legislation in essence deals with the unwanted religious conversion against the will of the individual. Different tactics may be applied to carry out this objective. Marriage is considered one such tool. Section 6 of the Ordinance deals with the conversion for marriage purpose which provides that:

If any marriage is done for the sole purpose of unlawful conversion or vice versa, by the man of one religion with the woman of another religion either by converting himself before or after marriage or by converting the woman before or after marriage may be declared void by the family Court or where family Court is not established, the Court having jurisdiction to try such case on a petition presented by either party thereto against the other party of the marriage.

The section is crafted in “gender-neutral” terms (calling it gender-neutral is wrong since it recognises only heterosexual marriage) and secular (applicable to all religion) terms. However, the Ordinance suffers from not just constitutional irregularities but also societal prejudices perpetuating a much deeper rot: PATRIARCHY.

The piece shall highlight how the state is yet again perpetuating patriarchy in the garb of welfare legislation. The state’s subjective interference in the institution of marriage that serves patriarchal interest coupled with its misplaced understanding of “protectionist” legislation consciously or subconsciously strips women of their autonomy. This is precisely what is being done by such legislation.

Ascertaining societal interest in the institution of marriage [3]

The rhetoric of protection is employed to control female sexuality. Historically (especially in India) institution of marriage has been an ideal tool to wield such dictates over women.  Caste, religion, and clan barriers are used to govern the choices of women within this patriarchal marriage institution.[2]

Marriage involves the rights of privacy, choice, and marital freedom. As mentioned above the 1st generation “Freedom of religion” legislations were aimed to maintain “public order” i.e. conversion led to disturbance of public order which needed to be monitored and punished. Introduction of marriage by 2nd Generation laws begs a question: How exactly then the marriage between two consenting adults becomes an issue of public order?

The answer can be navigated within the Patriarchal structure embedded in the institution of marriage.  Simone De Beauvoir wrote that “marriage is obscene in principle insofar as it transforms into rights and duties those mutual relations which should be founded on a spontaneous urge”. These rights and duties are dictated by society in the form of gender roles which eventually inculcates into stereotypes. Society employs a methodology termed as separate sphere theory wherein because of natural physiological differences between sexes a demarcation between public (market, government, politics etc) and private (domestic life, home, children etc) arena is made and is assigned to male and female respectively. Patriarchy operationalises itself in the form of this separate theory. Hence marriage can be presumed to institutionalise this form of patriarchy.

Stephanie Coontz writes that “marriage as the main way of consolidating wealth, transferring property, laying claim to political power”. Thereby the purpose and primary focus of marriage shifted to a transaction so much so that women themselves were reduced to the status of property. The traditional religious practices only perpetuate this belief, for instance, the practice of “kanyadaan” in Hindu religious practices or a priest allowing the women “to be kissed”. Sense of purity or virginity attached to women is borne out of the belief that a new property is always in more demand. Property being a marketable entity (public sphere) is considered to be in the purview of males.

There is a persistent effort by the state to maintain this status quo of patriarchal marriage as it serves the objective sought i.e. public/private divide, male domination and depriving women of their agency. It is most glaringly visible in the cases of divorce wherein couples, on their own accord, intend to separate. Cases of Restitution of Conjugal Rights (RCR) [3] under the Hindu Marriage Act 1955 (HMA) corroborates this hypothesis. Indian courts have often underplayed the issue of women subjugation in marriage and have compelled her to live with her husband to “save the marriage”. RCR has become a weapon instead of a shield. Delhi High Court in Harvinder Kaur v Harander Singh Chaudhary declined to entertain the objection of women of irksome family and held it obligatory for her to live in a joint family to preserve the marriage. Non-compliance with RCR decree is a ground for filing a divorce.

This patriarchal marriage structure exonerates any sense of agency & declines recognition of consent as an essential element in the marriage for that will result in the recognition of women as an active entity in the marriage. HMA while prescribing the essential doesn’t provide for express consent as an essential element for a valid Hindu marriage.[4] The explicit mention of the consent may appear to be an exaggerated proposition or something that is implied however the by-products of such presumptions are something that undermines women’s agency and sexuality. One such instance is the absence of any provision on marital rape from the statute book which suggests that marriage is presumed to be the contract to have legal sex irrespective of the quotient of consent. The existence of concepts such as “breach of promise to marriage” is nothing but the validation that marriage dictates sexual agency and sexuality of women and not her consent.

Indian lawmakers’ tryst with benevolent sexism

Benevolent sexism along with hostile sexism is a part of the ambivalent sexism framework as developed by Glick and Fiske. Benevolent sexism is couched in the positive representation of women in the form of being as feeble, pure caring, or warm, maternal or fragile entities that need to be protected or guarded. Such attitudes prima facie are not questionable but when directed towards a particular gender by way of a legislative framework it dampens the objective of gender equality.

Indian laws are embedded with instances where such benevolent sexism is apparently visible. Most of them are highlighted when they are challenged before the Judicial wing of the state In Hardev Singh v Harpreet kaur the Apex court accepted that females do not have much say in the marriage and hence need protection. The protection enumerated here was one provided under the Protection of Child Marriage Act 2006 wherein only adult males could be prosecuted for marrying an underage child and not an adult female. Court’s observation perpetuated ideas of pity, vulnerability, weakness and helplessness nature of women and sought to operationalise this benevolent sexism in Indian laws. The court believed that it was only the minor girls who are victims of the horrors of child marriage and not minor boys.

The law of maintenance under the personal laws gives normative basis to the belief that women depend upon husband and need protection. These laws perpetuate the belief that women are not equal in marriage and depend upon her husband for subsistence (also known as romantic paternalism)[5]. This paternalism stance is apparent by the bare reading of the s. 20 of the Hindu Adoption and Maintenance Act 1956 which gives the rights to children to claim maintenance wherein sons need to be maintained only till they attain the age of 18 yrs but daughters need to be maintained till they are married i.e. till their dependence is transferred from father to husband.

These sexist reflections are not just limited to the personal laws but are also visible on the secular curtains. Section 37 of the Special Marriage Act 1954 entitles only the wife to claim permanent alimony or maintenance perpetuating the idea of their dependence and prescribing a separate sphere of domestic life for them.

US Supreme Court had the opportunity in Frontiero v Richardson to deal with the notion of women being dependent on their husbands for livelihood (romantic paternalism)[6]. The court highlighted how these historically perpetuated ideas have become a tool to devoid women of their choices. It observed:

“…statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.”

In 2016 a constitutional challenge was made against s 56 of the Code of Civil procedure before the Bombay High Court. The section provided that “the court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money”. The court declined the challenge on the ground that s. 56 would come under the ambit of “special provision” enumerated in article 15(3) and thus goes beyond the judicial analysis. The carte blanche protection provided to such provisions/legislation within the 15(3) turned the entire objective of Article 15(3) on its head. From being intended to be used as a tool for protection of women it was now being used to perpetuate the stereotypes and gender roles.  

The Apex court in Joseph Shine v Union of India (Adultery judgment) had an opportunity to comment on such paternalistic attitudes and observed that romantic paternalism cages women, instead of protecting them. The court was pronouncing upon the constitutional validity of section 497 of the Indian Penal Code wherein in an extramarital affair only the men could be found guilty of adultery. Prima facie the provision might ostensibly appear to be enacted for the benefit and welfare of women and may be presumed to be covered under Article 15(3) of the Constitution (approved by SC in Yusuf Abdul Aziz v State of Bombay), however, it perpetuated the stereotype that women can never be a seducer thus devoiding women of her sexual agency and reducing them to a passive entity in a sexual relation.

Recently in Secretary, Ministry of defence v Babita Puniya this sexist idea was visible when women officers were denied on the pretext of them being weak and physiologically different thus requiring protection from the “hardships’ of the armed services. The SC was quick to reject these assertions of the state. The court upheld the right of women to equal opportunity in the Army and observed that:

“…If society holds strong beliefs about gender roles – that men are socially dominant, physically powerful and the breadwinners of the family and that women are weak and physically submissive, and primarily caretakers confined to a domestic atmosphere – it is unlikely that there would be a change in mindsets.”

(Para 55)

The judgment tried to debunk the separate sphere theory. The theory can be presumed to inspire the benevolent sexism of Indian lawmakers and by dismantling these basic blocks of separate sphere Apex Court can be presumed to be trying (reluctantly) to bring about the change in the law.

“Aims and objectives”: State’s misplaced understanding

The driving force behind this 2nd generation of legislations (those covering marriage) is that “innocent”, “gullible” Hindu women are tricked into marriage with Muslim men and forced to convert to Islam. As mentioned the “love jihad bogey is no less a negation of women’s agency. It treats women as gullible, defenseless participants in relationships”

Dr. Surendra Jain of one right-wing organisation advocated for such legislation on the premise that they have recorded instances of such conversion by Hindu women to Islam by a Muslim Man on the pretext of marriage. The Chief Minister of UP also claimed that such legislation was important to “protect” mothers and sisters. This is nothing but a reassertion of restoring patriarchal structure by dictating women’s agency in the name of benevolent sexism using marriage as a tool.

A reluctance to accept women as an active part in marriage and denial to recognise women’s autonomy in her effort of choosing a partner for an institution moulded to serve the ideas of patriarchy is sure to hurt the sentiments of the state. As Charu Gupta points out

women here are perhaps “using” the instruments of conversion and elopement as a mode of coping with, challenging and, within limits, transgressing an oppressive social order

Such legislations fail to see that faith is secondary in matters of passion, and the choice is primary. A state-wide survey by the Population Council in Uttar Pradesh recently as 2015-’16, estimates that as many as 40 percent of young married women did not participate at all in the decision on when and whom to marry, while 51 percent simply acknowledged the wish of their parents. The Ordinance also provides increased punishment in case the victim is a woman re-asserting the fact that they don’t have much voice in the decisions of marriage.

It is ironic that on one hand the Ordinance implicitly accepts such assertion and on the other hand, it is optimistic that the law won’t be misused.  In India threats of legal action under legislation such as the Prevention of Child Marriage Act or Prevention of Children from Sexual Offences Act[7] are occasionally used to even break the consensual marriage of not just the minor but also the adults. The cases are usually filed by the parents of the individuals marrying in different clans, classes, caste or religions. These cases are already well documented.

The legislatures were aware that an explicit mention of one gender will make the law discriminatory on the face value; hence the UP Ordinance (and similar legislation) is wrapped in gender neutrality cover. However, it is pertinent to note the observation of Justice Chaudhary in T Sareetha v T Venkata Subbaiah that:

 “…although theoretically this section applies to both man and women and by that token stratify the equality test …. bare equality of treatment regardless of the inequality of realities was neither justice nor homage to constitutional principles.”

Arguments against the UP Ordinance on the ground of violation of equality code and Article 21 have been made already and a petition challenging the Ordinance is already filed in Supreme Court and Allahabad High Court.

Many instances of such conversion are due to the failure of the secular marriage laws. Accounts of inter-faith couples trying to register their marriage evidence the plight of couples under these laws. It is argued that there is a need to make such laws more stringent instead of resorting to such blatant tools of misuse and oppression. Section 4 of the Ordinance allows any person related to the converted person by blood or marriage or adoption to lodge an FIR against the conversion. Additionally, there is a requirement of pre and post-marriage approval by the district authorities. It was but obvious that the law was going to be used for its “original” purpose and such instances of misuse have started flowing through veins of the states especially Uttar Pradesh.

There are two key observations that suggest two extreme positions on the issue:

  • Charu Gupta points out “Hindu woman’s [read women] body became a marker to sharpen communal boundaries”. (validating existence of love jihad)
  • The Supreme Court in Lata Singh v State of UP observed in reference to inter-caste and inter-religion marriage that “….this is a free and democratic country and once a person becomes a major he or she can marry whoever they like.”

Such legislations further subjugate the women’s autonomy leading to women’s bodies becoming a tool to “sharpen communal boundaries”. These legislations serve only one purpose- maintaining the status quo.

[1] Court ultimately vouched for protection and promotion of inter faith marriages but also acknowledged the existence of such forceful conversion practice.

[2] As a note of caution it is to be mentioned here that Author doesn’t suggest that marriage as an institution is inherently patriarchal but becomes one when it is dictated by the whims of the society and not by the consent & choices of adults involved in the marriage.

[3] Earlier remedy of RCR was available only to males.

[4] Provides for conditions where consent cannot be given because of some disability.

[5] A subset of benevolent sexism theory.

[6] Involved a challenge to an American law that allowed the wives of male servicemen (i.e.,members of the armed forces) to automatically claim benefits as “dependants”, but allowed husbands of female servicemen to claim only if they could show that they were actually reliant upon their wives for half their income.

[7] Interestingly this was one of the grounds raised by the father of a girl in the case of Salamat Ansari which was rejected by the court. 

Preferred Citation: Shashank Pandey, “PATRIARCHY AND THE NEW GENERATION OF FREEDOM OF RELIGION LAWS IN INDIA”, The Law Culture (2021)


Shashank Pandey

Shanshank is one of the founders of The Law Culture. He is a final year student at RMNLU. He is primarily interested in Intellectual Property Rights, Labour Laws, Arbitration and Constitutional Law.

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