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Indian law never defined “marriage”: Here is why govt needs to be involved in inter-faith “marriage”

That’s not meddling, that’s the role of the government.

Are you against inter-faith marriage? These days, we often hear this question.

The question is absurd. It is like asking: do you like food? I am not sure. Which “food”? Perhaps I like samosas but not jalebis. You have to be more specific.

When you ask me a question about marriage, the underlying assumption is that there is a single, precise definition of the word “marriage.” The problem is that the word marriage is not defined anywhere in Indian law. Read, for instance, these words from the Supreme Court of India in Jan 2019:

We conclude that the marriage of a Muslim man with an idolater or fire­worshipper is neither a valid nor a void marriage, but is merely an irregular marriage.”

Can anybody explain that sentence to me?

Indian law has a definition for Hindu marriages, under the Hindu Marriage Act. The law has a completely separate legal institution called Special Marriage, defined under the Special Marriage Act. And Muslim “marriages” are not even defined anywhere. They are treated as civil contracts, like one company agreeing to supply a certain amount of goods to another.

Each of these separate institutions comes with a completely different set of rights and obligations for the two parties involved. Generally speaking, if a woman converts to Islam and marries a Muslim man, she will lose a number of civil rights related to divorce, maintenance and inheritance. These laws will impact how she might inherit property from her husband and even her own parents. These laws will even impact how her children inherit property, whether sons and daughters will have an equal share and so on. It is an absolute mess.

Again, generally speaking, a woman who converts to Islam to marry a Muslim man will find the laws much harsher on her. Should the government not step in here and make some rules?

Many people have tried to frame this as a question of female agency. So what if a woman decides to convert? It’s her choice.

Really? Consider this. Consider a 14 year old girl, approached by an adult Muslim man and they fall in “love.” She decides to convert. Because she is a Muslim girl who has reached the age of puberty, the adult Muslim male can now legally marry this 14 year old girl. Do you realize how disturbing this is?

What female agency are you even talking about in this case? A 14 year old girl has agency? This is not a hypothetical situation. The matter has been tested multiple times in courts of law. A minor girl can absolutely marry an adult Muslim man (see here and here). The law is crystal clear on this.

Again, the reason this is possible is because there is no single definition of “marriage” under Indian law. A number of very different legal institutions are grouped under the loose word “marriage.” Naturally therefore, the government has to step in and make rules about how to move between these very different institutions. That’s not meddling, that’s the role of the government.

Think about transportation. You could walk. You could take a car, a two wheeler or an auto-rickshaw. Or a train or an airplane. Don’t you think you need the government to specify that pedestrians should stick to the sidewalk? Don’t we need the government to put traffic signals on the road, control where pedestrians can cross? Would you allow bicycles on railway tracks? Don’t you need access controls? Who determines these access controls? The government, of course.

You can’t pretend that these are all modes of transportation. And so, there should be no distinction between the road, the sidewalk, the railway track and the airplane runway.

And yet, we have liberals framing the matter of inter-faith marriage with pithy idioms such as “Miya biwi raazi, to kya karega qazi“?

Indeed, why not allow auto-rickshaws to ply on the runway at Bangalore airport? Shame on the government for meddling. Right?

There are only two legitimate options here. One, you could stick with our existing maze of various legal modes of marriage. In that case, be prepared for the government to make strict rules on access control between these various modes. Just like the government sets strict rules on how to access trains, planes and buses.

The other option is to have a Uniform Civil Code, which provides a single definition of the word marriage. It would specify everything on age of consent, inheritance, divorce, alimony, child support, etc with no distinction on the basis of caste, religion, or gender. In that case, the government would no longer meddle. Adult citizens would be free to do as they choose with their lives. That is why this is standard across the free world.

Our “activists” want neither. They want the absurdity to continue. They don’t want to talk concrete policy nor principles. And they just want to throw movie dialogues at their political opponents. And for this, they are perfectly willing to throw women and minor girls under the bus.

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Abhishek Banerjee
Abhishek Banerjee
Abhishek Banerjee is a columnist and author.  

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