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Friday, September 30, 2022

Arya Samaj certificate does not prove marriage, says Allahabad HC; but what about nikahnamas by mosques?

The Allahabad High Court has questioned the marriage certificates issued by Arya Samaj societies, stating they are “misusing beliefs in organising marriages without considering the genuineness of documents”.

Hearing a habeas corpus petition, the court observed that Arya Samaj societies were issuing marriage certificates “without proper solemnisation of marriages”, and added that marriage could not be proved only on the basis of this certificate.

Justice Saurabh Shyam Shamshery said, “The court is flooded with marriage certificates issued by different Arya Samaj Societies which have been seriously questioned during different proceedings of this court as well as by other high courts. The institution has misused its beliefs in organising marriages without even considering the genuineness of documents.”

The habeas corpus petition was filed by one Bhola Singh who had produced a certificate issued by Arya Samaj Mandir, Ghaziabad, to claim that he was legally married to “petitioner number 2”.

“Since the marriage has not been registered, it cannot be deemed only on the basis of the said certificate that the two parties have married,” the court observed in its decision.

“In the present case, the corpus is a major and an FIR has been lodged against the petitioner number 1 (husband) by the father of petitioner number 2 (wife), and investigation is undergoing. Therefore, there is no case of illegal detention,” the court said.

The religion of the wife has not been disclosed. Justice Shamshery also pointed out that a habeas corpus writ was an “extraordinary remedy” and could not be issued as a right.

The petitioners have other remedies available for the purpose under criminal and civil law, therefore, the present writ petition for habeas corpus at the behest of husband to regain his wife as corpus is not maintainable as a matter of course, ignoring that marriage cannot be deemed to be solemnized.”

In June, the Allahabad HC had ordered an enquiry against an Arya Samaj temple in Prayagraj, to determine whether marriages are actually being solemnized there or it was just issuing ’empty’ certificates of marriage. In the same month, the Supreme Court refused to accept a marriage certificate issued by Arya Samaj as legally valid, saying “Arya Samaj has no business giving marriage certificate. This is the work of authorities. Show the real certificate.”

If Arya Samaj orgs need better regulation, mosques/Jamaats need it much more

Cases of Muslim men entering fraud marriages to Hindu women in Arya Samaj mandirs have also come to light – exhibit A, exhibit B, exhibit C. These men use fake Aadhar/ID documents or manage to buy/obtain religious conversion certificates for such marriages, that legally should be governed by Hindu Marriage Act. However, the man never gives up practising Islam or reverts to his Muslim lifestyle after a few months of such sham marriages. Many also start mounting pressure on their Hindu ‘wife’ to convert to Islam. Sometimes, the Arya Samaj organizations issuing such marriage certificates themselves turn out to be fake.

So it is right for courts to question the validity of certificates issued by any organization which claims to be linked to Arya Samaj. This is another manifestation of the lax law enforcement in our country.

The court is also right in stating that mere marriage in Arya Samaj (or any mandir/mosque/church/hall for that matter) should not be the sole basis to judge legality of marriage – getting the marriage registered with government is very important, especially when the marriage is happening without parental consent. This also becomes important in matters of divorce, maintenance and child custody. This is something which our girls and masses in general need to be educated about.

However, this is where the double standards of our system become stark. Dubious conversion certificates and nikahnamas issued by local maulvis/jamaats are an even bigger problem – see this case where a minor SC girl was lured away by a Muslim man, converted to Islam despite being a minor and married. Four years later, tired of abuse by her ‘husband’, the girl returned to her parents home. Here is another example of a minor Hindu girl being illegally converted in a mosque and nikahnama being issued. Muslim organizations have been found to be actively involved in foreign-funded proselytization rackets where Hindu girls are targeted for conversion and marriage.

When is our judiciary going to tackle this elephant in the room? Or does the burden of abiding by law rest only on Hindu religious bodies? There is a far greater need of vetting & monitoring Muslim religious organizations and getting Muslim marriages registered with the government, given the far-greater potential of abuse due to Muslim stress on dawah (converting others to Islam) and practices like polygamy.

Converting and marrying minor girls is a clear crime, but has any action been taken against any maulvi/mosque/Jamaat indulging in such acts? Has any court taken suo moto notice based on the repeating pattern of such crimes?

Let us not forget that Arya Samaj has been at the forefront of spreading and defending Hindu Dharma, and started the Shuddhi movement over a century ago. Even today, Arya Samaj organizations are doing great service to society by offering a simple path to Ghar Wapsi for those looking to embrace Hindu Dharma both in Bharat and elsewhere. Impostors and shady operators must be weeded out, but Hindus should not allow judiciary to turn this into a witch-hunt against the entire sampraday. Genuine conversions and marriages carried out by Arya Samaj should not be tarred with the same brush.

In a shocking case of judicial overreach from June 2022, the MP High Court delivered a brutal tongue-lashing to a Hindu man who filed a habeas corpus petition seeking release of his adult wife, a Hindu convert from Islam, from a Nari Sudhar Grah (women detention center). The man submitted a conversion certificate for his wife and marriage certificate issued by the Arya Samaj Sammelan Trust Ghaziabad (UP). Justice Rohit Arya, instead of addressing the issue at hand, went on a rant asking the man to convert to Islam instead!

In multiple cases involving Muslim man – Hindu woman marriages, our courts have accepted an adult girl’s affidavit/statement that she wishes to live with her husband, and rejected the girl’s parents plea that she was abducted/coerced. Was a statement taken from the girl in this case from MP? If she has stated that she wishes to stay with her husband, on what grounds is she being held in government detention?

Didn’t SC validate Hadiya’s (nee Akhila) marriage with PFI worker Shafin Jehan saying “No role of state, society in individual’s choice” despite evidence that Akhila was brainwashed to convert by a PFI-linked conversion centre in Malappuram? When a minor Muslim girl gets married against her parent’s consent, there too our courts have upheld the marriage as valid per Muslim personal law. So why is an adult woman who converted from Islam to Hindu Dharma, being denied the agency to choose her life partner?

While the Madhya Pradesh HC was within its right to question the authority of the said trust to issue conversion and marriage certificates, the court went off on a tangent by asking if such an act (conversion of an adult Muslim to Hindu Dharma and marriage with a Hindu) could have “serious impact on public order disturbing social fabric of the society“.

Really? One conversion of an adult person to Hindu Dharma can disturb society’s fabric? The HC also appointed a Muslim advocate to “assist the court with relevant literature and recitals of holy Kuran” reported LawBeat. Is the court now going to check if conversions out of Islam are permitted as per sharia? Because Islamic scholars clearly say that apostates (those who convert out of the faith) should be executed.

When Gujarat introduced a freedom of religion law that required anyone seeking to convert for marriage to seek permission from a district magistrate, the Gujarat HC ruled that it is a ‘violation to the right to life’. That law introduced by Gujarat and similar laws brought by UP & MP were widely dubbed by left-liberal intelligentsia as the ‘love jihad law’ i.e. designed to curb the grooming and forcible conversion of Hindu girls by Muslim youth. So the Gujarat HC stayed sections of the Act after hearing a petition against the new law filed by a Muslim man.

Overlooking the string of cases of grooming, deceit and forcible conversions in the state, The High Court said that “the mere fact that a marriage was between people of different religions did not prove it had been conducted for the purposes of unlawful conversion, since there was no proof of force, allurement or fraud being involved”. Gujarat govt. is now challenging the HC decision in Supreme Court.

From these pronouncement of different courts, should we understand that converting a Hindu girl to Islam is considered “right to life, freedom to choose religion” but an adult Muslim woman converting to Hindu Dharma is considered “disturbing social fabric”?

Conclusion

The contemptuous attitude of sections of our judiciary towards Hindu Dharma again shows that this critical institution is steeped in colonial attitudes of ‘civilizing/transforming natives’. Add to that the unconstitutional Collegium system introduced in 1993 through which senior SC judges appropriated the right to appoint judges solely to themselves – and we have an institution that is neither accountable nor connected to our civilizational roots.

The issue of religious conversion and inter-faith marriage in our secular state has become so twisted and convoluted that it is hard for the ordinary citizen to even understand the legal complexities, leave alone try and get justice through the courts.

We need to urgently mandate that all inter-faith marriages be carried out under the Special Marriage Act, which allows people of any religion to get married without converting to another faith. And for a lasting solution, we need to reform the Indian state itself to end this deep-rooted animus towards Dharma.

(With IANS inputs)

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