Courting trouble to marry a Muslim

Sometimes, the courts do big damage by pronouncing mindless orders. The Allahabad high court has held that a non-Muslim girl must convert to marry a Muslim. Perhaps we are missing some nuances here that only a full reading of the court’s orders will clarify, but prima facie no court has any business making this kind of observation, assuming we are living in a free society where every individual has a right to follow his or her faith according to his or her conscience.

In a case in which Dilbar Habib Siddiqui is accused of abducting Khushboo Jaiswal by her mother Sunita, justices Vinod Prasad and Rajesh Chandra took the gratuitous line that both man and woman should be Muslim for their marriage to be valid under Islamic law. They have argued that Khushboo had filed an affidavit that she had married according to Muslim customs while retaining her ‘non-Muslim’ name of Khushboo Jaiswal.

Quite apart from the fact that the question before the court was about abduction and not Islamic marriage, their judgment has instead gone off at a tangent. If Khushboo was indeed abducted, it does not matter what Islamic law says. If she wasn’t, and had married Siddiqui according to her wishes, she has every right to do so without changing her religion.

Courts should as a matter of principle steer clear of trying to be compliant with what the scriptures of any religion say. It does not matter whether the Gita says this or the Koran says that. Courts function under the Indian Constitution, and they have to follow the laws as laid down in the statute book. By needlessly referring to holy books, the courts either end up angering reformists in a religion or the conservatives. They should stick to the law.

The Supreme Court had, in 1986, set off a similar controversy when it passed comments on the Koran and marriage laws while awarding alimony to Shah Bano. The remarks had no bearing on the merits of the case but it created a controversy that had huge political and social implications. Nearly a quarter century later, the Allahabad high court seems to have gone the other way and held a marriage as unlawful because it doesn’t meet with Islamic norms.

The judgment said that since she didn’t convert, her marriage to Siddiqui was “void” and the “same is contrary to Islamic dicta and tenets of the Holy Koran.” It is not the court’s job to interpret the Koran.