EIGHTH REPORT OF VII STATE LAW COMMISSION

ON FREEDOM OF RELIGION (Along with draft bill of)

THE UTTAR PRADESH FREEDOM OF RELIGION BILL, 2019

Allurement to Convert Religion

SUBMITTED BY:

JUSTICE ADITYA NATH MITTAL

CHAIRMAN
 fnukad% 21 uoEcj] 2019

loZ&/keZ&leHkko dh Hkkouk Hkkjr dh ekVh esa jph&clh gSA ijUrq dfri;

laxBu fgUnqvksa vkSj fo'ks"kdj vuqlwfpr tkfr ,oa vuqlfw pr tutkfr ds yksxksa dks
izyksHku nsdj] vius fufgr LokFkZ gsrq /kekZUrj.k djkdj Hkkjr dh lfn;ksa iqjkuh
lH;rk&/kkjk dks Hkqykus o /kkfeZd ijEijkvksa vkSj iwtk i)fr;ksa dk vieku fl[kkdj
vius /keZ dks loksZPp f'k[kj ij n'kkZus dk dqfRlr iz;kl dj jgs gSaA

Hkkjr dh lH;rk ,oa /keZ dks {kr&fo{kr djus o uo&/kekZUrfjrksa dks vius gh
iwoZtksa ds fo:) fo"k&oeu gsrq izsfjr djus dk "kM;U=] cgqla[;dksa dh /kkfeZd Hkkouk
dks Bsl igqWpkuk gSA

fu%lUnsg :i ls eqxy lkezkT; esa o fczfV'k 'kklu dky esa /kekZUrj.k cMs+ iSekus
ij gqvk D;ksfa d rRdkyhu 'kkld gh bls izksRlkfgr djrs FksA fQj Hkh fczfV'k 'kklu
dky esa jktx<+] iVuk] ljxqtk] mn;iqj] chdkusj] tks/kiqj] dkykgkaMh o dksVk ds
'kkldksa us /keZ&Lokra«; dkuwu cukdj /keZ&ifjorZu dks izfrcfU/kr dj fn;k FkkA

LorU=rk ds mijkUr dsUnz ljdkj esa rRdkyhu yksdlHkk lnL; Jh tsBkyky

gfjd`".k tks'kh us o"kZ 1954] rRi'pkr o"kZ 1960 esa o vfUre ckj o"kZ 1979 esa yksdlHkk
lnL; Jh vks0ih0 R;kxh us /keZ&ifjorZu ij jksd yxkus gsrq izkbosV esEcj fcy ykus
dk iz;kl fd;k ijUrq vU; laLFkkvksa ds vfrfjDr rRdkyhu vYila[;d vk;ksx }kjk
fojks/k djus ds dkj.k lQyrk izkIr u gks ldhA LorU=rk ds mijkUr loZizFke
e/;izns'k o rRi'pkr mM+hlk] v:.kkpy izns'k] rfeyukMq] xqtjkr] jktLFkku]
NRrhlx<+] >kj[k.M] fgekpy izns'k o mRrjk[k.M jkT;ksa }kjk izyks Hku] cy]
Ny&diV] bZ'ojh; vizlUurk o fookg vkfn ds vk/kkj ij /keZ&ifjorZu ij fof'k"V
dkuwu cukdj /keZ&ifjorZu dks izfrcfU/kr djus dk lkFkZd iz;kl fd;k gSA
 vusd lekt lsfo;ksa dks bl izdkj ds /kekZUrj.k dh vkykspuk djus dk
[kkfe;ktk Hkh mBkuk iM+k gSA lar Lokeh y{e.kkuUn dh gR;k dsoy blh dkj.k ls dh
xbZ FkhA Lokeh n;kuUn ljLorh us /kekZUrj.k izfdz;k dks oxZ&fo'ks"k ds fo:) dzwj
fgalk crk;k FkkA Lokeh foosdkuUn us f'kdkxks ¼vesfjdk½ esa vk;ksftr ^/keZ&laln* esa
^/keZ* dh o`gn O;k[;k djds lEiw.kZ fo'o dks u;k lans'k fn;k tks vkt Hkh Lej.kh; ,oa
izsj.kknk;d gSA

ekU;oj] vkius Hkh fnukad 13 fnlEcj] 2014 dks Þ jsfMQ.dke ß ds laoknnkrk

Jh 'kjr~ iz/kku dks vius lk{kkRdkj esa /kekZUrj.k ij viuh ekSfyd izfrfdz;k O;Dr
djrs gq, u dsoy /kekZUrj.k dk fojks/k fd;k oju~ Ny&cy&izyksHku ls /kekZUrfjr
yksxksa dk iqu% /kekZUrj.k djkdj Þ?kj okfilhß dk leZFku dj bl fo"k; ij fofufnZ"V
dkuwu cukus dk izLrko fd;k Fkk ,oa ^fgUnw ;qok okfguh* }kjk Þ?kj okfilh gsrqß if'peh
o iwohZ mRrj izns'k esa fd, tk jgs iz;klksa dks iw.kZr% mfpr crk;k FkkA

ekU;oj] v[k.M Hkkjr vfHk;ku ds iz;klksa ls izsfjr gksdj bl fo"k; ij fofHkUu

fo}kuksa ds er] Hkkjr esa LorU=rk iwoZ o LorU=rk i'pkr ds dkuwuksa o iM+kslh ns'kksa
;Fkk usiky] e;kWaekj] HkwVku] Jhyadk ,oa ikfdLrku ds fof/kd dkuwuksa ds lkFk&lkFk
lekt esa tkucw>dj QSykbZ tk jgh vjktdrk] ekuuh; loksZPp U;k;ky; o vusd
mPp&U;k;ky;ksa ds fu.kZ;ksa dks n`f"Vxr j[krs gq, jkT; fof/k vk;ksx us ;g izfrosnu
izLrkfor dkuwu ds izk:i lfgr izns'k ljdkj ds fopkjkFkZ rS;kj fd;k gS o vk;ksx ds
er esa vU; nl jkT;ksa dh Hkkafr mRrj izns'k jkT; }kjk Hkh bl xEHkhj fo"k; ij u;k
dkuwu cuk;k tkuk pkfg, D;ksfa d Hkkjrh; n.M lafgrk esa fo|eku dkuwuh izko/kku
vuqfpr <ax ls /keZ ifjorZu ij jksd yxkus gsrq i;kZIr ugha gSA

ekuuh; loksZPp U;k;ky; us bl fo"k; ij jkT; ljdkj }kjk dkuwu cukus ds

vf/kdkj dks lafo/kku lEer ik;k gSA

ekU;oj] ;g Hkh voxr djkuk gS fd foxr yxHkx nks o"kZ ds dk;Zdky esa
vk;ksx }kjk fuEufyf[kr izfrosnu izLrqr fd, tk pqds gSa ftudh izxfr fuEu izdkj
gS%&
izfrosnu fo"k; 'kklu }kjk d`r dk;Zokgh
dzekad
izFke izns'k ds 1166 fu"iz;ksT; ,oa mRrj izns'k fujlu vf/kfu;e] 2018 }kjk 95
vuqi;ksxh vf/kfu;eksa ds fujlu vf/kfu;e fujflr fd;s x;sA 'ks"k ij
gsrqA dk;Zokgh izpfyr gSA
 f}rh; izns'k ds 264 fu"iz;ksT; ,oa mRrj izns'k fofu;ksx ¼fujlu½ vf/kfu;e]
vuqi;ksxh fofu;ksx vf/kfu;eksa 2018 }kjk lHkh fu"iz;ksT; fofu;ksx
ds fujlu gsrqA vf/kfu;e fujflr fd;s tk pqds gSaA
r`rh; izns'k esa xkS rFkk xkS&oa'k ds
laj{k.k] lao/kZu rFkk xkS ,oa dk;Zokgh izpfyr gSA
xkS&oa'k o/k izfrcaf/kr djus gsrqA
prqFkZ izns'k esa vkn'kZ fdjk;k fu;a=.k vk;ksx }kjk laLrqr mPp Lrjh; fo'ks"kK
,oa csn[kyh dkuwu cuk, tkus lfefr dk xBu 'kklukns'k
ds lEca/k esaA la[;k&12101@vkB &1&16&17 cSBd 2018
Vh0lh0 fnukad 02 uoEcj 2018 }kjk ek0
U;k;ewfrZ Jh ,l0 ;w0 [kku ¼lsokfuo`Rr½ dh
v/;{krk esa 11 lnL;h; lfefr dk xBu
fd;k tk pqdk gS ftldh vfUre cSBd
fnukad 9-03-2019 dks vk;ksx ds dk;kZy; esa
lEiUu gqbZ o vUrfje fjiksVZ 'kklu dks
izLrqr dh tk pqdh gSA rRi'pkr Hkkjr
ljdkj }kjk Hkh vkn'kZ fdjk;k fu;U=.k
dkuwu dk izk:i m0iz0 lfgr lHkh jkT;
ljdkjksa dks Hkstk x;k gS ftl ij rqyukRed
v/;;u iqu% vk;ksx }kjk fd;k tk jgk gSA
iape vlkekftd rRoksa o laxfBr
lewgksa }kjk 'kkldh; ,oa dk;Zokgh izpfyr gSA
v'kkldh; Hkwfe ij voS/k dCts
jksdus ds lEcU/k esaA
"k"Ve~ jkT; ds fdUuj leqnk; ds
O;fDr;ksa ds lkekftd] vkfFkZd
,oa 'kS{kf.kd mRFkku gsrq d`f"k dk;Zokgh izpfyr gSA
lEifRr esa mRrjkf/kdkj iznku
djus gsrqA
lIre~ mUeknh fgalk jksdus gsrq dkuwu dk;Zokgh izpfyr gSA
cuk, tkus ds lEcU/k esAa

Hkonh;

¼U;k;ewfrZ vkfnR; ukFk feRry½

lsok es]a
Jh ;ksxh vkfnR; ukFk th
ekuuh; eq[;ea=h
mRrj izns'kA
 INDEX
SERIAL PAGE
NUMBER CONTENTS NUMBERS
CHAPTER- I INTRODUCTION 1-9
CHAPTER- WHAT IS RELIGION? CAN RELIGION BE 10-21
II DEFINED ?
CHAPTER- RECENT NEWS PAPER CUTTINGS 22-28
III REGARDING FORCIBLE CONVERSION
CHAPTER- INTERNATIONAL COVENANTS ON RIGHT 29-35
IV TO RELIGION
CHAPTER- ANTI-CONVERSION LAWS IN 36-44
V NEIGHBOURING COUNTRIES
CHAPTER- PRE-INDEPENDENCE AND POST 45-51
VI INDEPENDENCE ANTI CONVERSION
LAWS IN INDIA:
CHAPTER- CONSTITUTIONAL FRAMEWORK OF 52-68
VII RIGHT TO FREEDOM OF RELIGION IN
INDIA
CHAPTER- ANTI- CONVERSION ACTS OF VARIOUS 69-124
VIII STATES OF INDIA ALONGWITH
COMPARATIVE STUDY
CHAPTER- RECOMMENDATIONS OF LAW 125-142
IX COMMISSION OF INDIA WITH REGARD
TO FREEDOM OF RELIGION
CHAPTER- EXTRACTS OF IMPORTANT JUDGMENTS 143-219
X OF HON‟BLE SUPREME COURT AND
VARIOUS HIGH COURTS
CHAPTER- PROCEEDINGS OF U.P. LEGISLATIVE 220-233
XI ASSEMBLY REGARDING
ANTI- CONVERSION
CHAPTER- LEGISLATIVE COMPETENCE OF STATE 234-246
XII LEGISLATURE TO REGULATE FREEDOM
OF RELIGION
CHAPTER- EXISTING PROVISIONS OF LAW 247-252
XIII RELATING TO RELIGION AND NEED FOR
NEW LEGISLATION
CHAPTER- RECOMMENDATIONS OF THE STATE 253-259
XIV LAW COMMISSION U.P.
CHAPTER- DRAFT BILL 260-268
XV
CHAPTER- I

INTRODUCTION
 1

CHAPTER -I

INTRODUCTION
The Constitution of India provides for freedom of conscience and free
profession, practice and propagation of religion. India is a secular country and
it has equal respect for all the religion but at the same time India is not a
religious State. It equally treats all religious groups, provides protection,
freedom to practice, profess and propagate religion and to manage religious
affairs which prove the positive dimensions of secularism.

Although the word ‗religion‘ has not been defined in the Constitution of
India and it is also not so easy to define the religion. A religion undoubtedly
has its basis in a system of beliefs and doctrines which are regarded by those,
who profess that religion to be conducive to their spiritual well being. Swami
Vivekananda, a great Philosopher, explains the ―Religion‖ as the end of all
religion as follows:

―The end of all religions is the realizing of God in the soul. That is the
one universal religion.‖

Essentially, religion is a matter of personal faith and belief of person

with what he regards as Cosmos, his maker or his Creator which he believes,
regulates the existence of insentient beings and the forces of the Universe.
In Chapter II of this report, an attempt has been made to define the
religion by considering thoughts of various Philosophers. Undoubtedly, the
Constitution of India provides the freedom of religion, but at the same time,
there are agencies in the country which are indulged in religious conversion
 2

i.e. conversion from one religion to another religion by way of fraud,

allurement, fear of divine displeasure and even allurement of giving good job
and other facilities but at the same time, it has been experienced that various
agencies make their target to Minors as well as members of Scheduled Castes
and Scheduled Tribes and most of them are illiterate, who do not understand
what the religion actually is?
The religious conversion in India has been since immemorial time but
during the Rule of Mughals and after that during the British Rule in India, it was
done at a large scale. Certainly, prior to independence of India, such incidents
were taking place and the then Rulers of Rajgarh State, Patna State, Surguja
State, Udaipur State, States of Bikaner, Jodhpur, Kalahandi and Kota had
enacted certain laws to prevent conversion. It shall also not be out of place to
mention that British India had no anti-conversion laws probably because
Britishers themselves profess a proselytizing religion. Recently, a trend is rising
to convert Hindu girls to Islam and then to marry them.
In the case of Dr. Abdur Rahim Undre Vs. Smt. Padma Abdur Rahim
Undre AIR 1982 Bombay 341, the Bombay High Court considered the question
of conversion and held as under

―27. It is a well known principle of civil law that a person born into
or following one religion continues to belong to such religion
subject to conversion to another religion. Conversion to another
religion basically requires change of faith. To say the least it is a
matter of conviction. According to Mulla's Principle of
Mohammedan Law any person who professes Mohammedan
religion that is, he acknowledges that there is but one God and that
Mohammad is his prophet is a Mohammedan. Such a person may be
a Mohammedan by birth or he may be a Mohammedan by
conversion. It is not necessary that he should observe any particular
rites or ceremony to be an orthodox
 3

believer in the religion, no Court can test or gauge sincerity of religious

belief. It is sufficient if he professes Mohammedan religion in the sense
that he accepts prophetic grant of Mohammedan (section 19, Chapter 2,
page 19 of Mulla's Principles of Mohammedan Law). Thus the real test is
of professing Mohammedan religion. As to when is the true import of the
term profess fell for consideration of the Supreme Court in Punjabrao V.
D. P. Meshram, of the said decision the Supreme Court has observed as
under:

"13. What cl. (3) of the Constitution (Scheduled Castes) Order, 1950
contemplates is that for a person to be treated as one belonging to a
Scheduled Caste within the meaning of that Order he must be one who
professes either Hindu or Sikh religion. The High Court, following its
earlier decision in Narayan Waktu v. Punjabrao, has said that the
meaning of the phrase "professes a religion" in the aforementioned
provision is "to enter publicly in to a religious state" and that for this
purpose a mere declaration by a person that he has ceased to belong to a
particular religion and embraced another religion would not be sufficient.
The meanings of the word "profess" have been given thus in Webster's
New World Dictionary: " to avow publicly, to make an open declaration
of ....... to declare one's belief in: as to profess Shrist. To accept into a
religious order" The meanings given in the Shorter Oxford Dictionary are
more or less the same. It seems to us that the meaning 'to declare one's
belief in: as to profess Christ' is one which we have to bear in mind while
construing the aforesaid order because it is this which bears upon
religious belief and consequently also upon a change in religious belief. It
would thus follow that a declaration of one's belief must necessarily mean
a declaration in such a way that it would be known to those whom it may
interest. Therefore if a public declaration is made by a person that he has
ceased to belong to his old religion and has accepted another religion he
will be taken as professing the other religion. In the face of such an open
declaration it would be idle to enquire further as to whether the
conversion to another religion was
 4

efficacious. The word 'profess' in the Presidential Order appears to have

been used in the sense an open declaration or practice by a person of the
Hindu for the Sikh religion. Where, therefore, a person says, on the
contrary that he has ceased to be Hindu he cannot derive any benefit from
the order."

Thus it appears that for a conversion there should be a declaration

of one's belief and the said declaration should be in such a way that it
should be known to those whom it may interest. If a public declaration is
made by a person that he has ceased to belong to one religion and is
accepting another religion, he will be taken as professing the other
religion.

As per the Holly Quran translated by Abdullah Yusuf Ali (published by

Nusarat Ali Nasari for Kitab Bhawan, New Delhi in 1994), Sura II Ayat 221 of
the Holy Quran mandates as under:-
“Do not marry

Unbelieving women, Until they believe:

A slave woman who believes

Is better than an unbelieving woman,

Even though she allure you.

Nor marry (your girls)

To unbelievers until

They believe:

A man slave who believes

Is better than an unbeliever,

Even though he allure you.

 4

Unbelievers do but

Beckon you to the Fire.

But God beckons by His Grace

To the Garden (or Bliss).

And forgiveness,

And makes His Signs

Clear to mankind:

That they may Celebrate His Praise.”

Chapter VI of this report has thrown some light on pre-independence

anti-conversion laws in India. The Rajgarh State Conversion Act, 1936 banned
the preaching of Christianity and prohibited the entry of Christian Missionaries
in the former Kingdom of Rajgarh, Jodhpur, Surguja etc. of Chhota Nagpur
area. The basic purpose of all these laws was to insulate Hindus from onslaught
of Christian Missionary activities.
During the process of Constitution making, there was a lot of sound and
fury in the constituent assembly over the issue of religious conversion but no
such prohibition was incorporated in the Constitution of India. Certainly, after
adoption of Constitution, various attempts were made to regulate religious
conversion but no Central Act could be passed on this point. For the first time,
some of the States due to the overwhelming presence of the problem and
persistent demand to ban conversion by force, fraud or allurement, the issue was
given serious thought and the State of Madhya Pradesh was the first State of
Independent India to enact Madhya Pradesh Dharma Swantantrya Adhiniyam,
1968, based on the recommendations of
 6

Niyogi Committee Report. The State of Orissa had also passed a similar
legislation in the year 1967 and subsequently many other States, like Arunachal
Pradesh, Tamil Nadu, Gujarat, Rajasthan, Himachal Pradesh, Chhattisgarh,
Jharkhand and Uttarakhand have passed the similar legislations, which mainly
provide ban on conversion by force, fraud or allurement/ allurement.
The Madhya Pradesh and Orissa Acts were challenged before the
respective High Courts on the ground of legislative competence of the State
Government as well as on the ground of violation of provisions of Article 25 of
the Constitution. The Orissa High Court, however, held that the Act was ultra
vires of the Constitution but the Madhya Pradesh High Court had upheld the
anti-conversion law of Madhya Pradesh. Subsequently, both the judgments
were challenged before the Hon‘ble Supreme Court and the basic question
before the Supreme Court was, (i) whether the two Acts are violative of
fundamental right guaranteed under Article 25 of the Constitution and (ii)
whether the State Legislature is competent to enact them. Considering the
various aspects of the matter, Hon‘ble the Apex Court upholding the validity of
both the Acts, further held that the State Legislatures were competent to enact
such Acts. The extracts of the important judgments have been given in Chapter
X of this report.
As far as the State of U.P. is concerned, this matter has been agitated in
the U.P. Legislative Assembly many times since 1954 and the main grievance
was regarding Christian Missionaries. The Commission has collected some of
the debates from the U.P. Legislative Assembly which have been made part of
this report in Chapter XI.
 7

The report also considers the anti-conversion laws of neighbouring

countries, like Nepal, Myanmar (Burma), Bhutan, Sri Lanka and Pakistan.
Chapter V deals with anti-conversion laws of neighbouring countries. Chapter
IV deals with the International Covenants on Right to Religion and the relevant
provisions of International Covenants have been made part of the report.
Another aspect of this Study is the rising tendency of conversion for
solemnizing marriage with the girl or boy of another religion. Various matters
come before the High Court in which the bride and bridegroom belong to
different religions and they solemnize marriage after conversion to another
religion which their families as well as the society do not know nor they
recognize it and the petitions are filed before the High Court for providing
protection to them. Certainly, if the parties are major and they have solemnized
marriage of their free will, the protection is being granted to them by the High
Court.
In the matter of Shakti Vahini vs. Union of India 2018 (7) SCC 192,
Hon‘ble the Apex Court has given certain directions to the State Government
which is mainly regarding incidents of honour killing and Khap Panchayats.
The incidents of honour killing are also increasing in the State of U.P. and
particularly in Western U.P., the decisions are being taken by the Khap
Panchayats in the matter of inter-religion marriages. Certainly, no one has the
authority to take the law into their own hands and the State is governed by the
Rule of Law. In various matters before the Hon‘ble High Court, it has come
into light that the other side was converted to another religion without knowing
the basics of that religion but certainly such conversions were for the sole
purpose of marriage.
 8

In the matter of Mohammed Salim (D) through LRS. And others vs.
Shamsudeen (D) through LRS and others, (civil appeal No. 5158 of 2013
decided on January 22, 2019), Hon‘ble the Apex Court has considered the
effects of inter-religion marriage. Hon‘ble the Apex Court has referred the
commentaries of renowned writers of Muslim Personal Law, like Mullah, Syed
Amir Ali, Tahir Mahmood, A.A.A.Faizi as well as the contents of Holy Quran
regarding marriage of a Muslim with a Hindu women. Hon‘ble the Apex Court
has also considered the right of succession of the child born to such wedlock
and has held that the marriage of Muslim man with an idolater or fire
worshipper is neither a valid (Sahih) nor void (Batil) marriage but it is merely
an irregular (Fasid) marriage. Hon‘ble Apex Court has further held that any
child born out of such wedlock (Fasid Marriage) is entitled to claim a share in
his father‘s property and has further concluded that marriage of a Hindu female
with a Muslim male is not a regular or valid marriage but merely an irregular
marriage.
In Chapter III of this report, various recent newspaper cuttings regarding
forcible conversion have been given which indicate that the forcible
conversion is still prevalent. Considering all these aspects, the Commission
took this study suo motu and the Commission is of the view that the incidents
of conversion by force, fraud and allurement are still taking place in the State
of U.P. and while other States of India, like Madhya Pradesh, Orissa,
Chhattisgarh, Jharkhand, Himachal Pradesh, Uttarakhand, Arunachal Pradesh
etc. have enacted a specific law on this point, then the State of U.P. should also
consider to enact a specific law on this point to curb and control the fraudulent
conversion.
 9

As per news reports, the recent murder of Hindu activist leader, Late
Kamlesh Tiwari, also smacks towards the plan under which he was asked to
convert a girl by abducting her and thereafter solemnize marriage with a Hindu
boy.
As far as the existing provisions of law are concerned, they have been
enumerated in Chapter XIII of the report and the existing provisions are not
sufficient to curb and control the unlawful conversion. Therefore, there is a
need to enact a new law on this point.
The report also contains a Draft Bill in Chapter XV for consideration of
the Government.
I am thankful to Shri Brajesh Pathak, Hon‘ble Cabinet Minister for Law
and Justice, Additional Energy Resources, Political Pension, U.P.
Dr. Neelkhanth Tiwari, Hon‘ble State Minister (Independent Charge),
Shri Jai Prakash Singh II, HJS, Principal Secretary, Legislative Department,
Government of U.P., Sri Jagdish Prasad Upadhyaya, and
Sri Surendra Nath Srivastava , newly appointed full time and part time members
of the Commission for their valuable guidance and suggestions. The Commission
is also thankful to Smt. Sapna Tripathi, HJS, Full Time Secretary of the
Commission for extending her valuable support and assistance in preparation of
this report.

(Justice Aditya Nath Mittal)

Chairman
Date: 09 NOVEMBER 2019
 CHAPTER- II

WHAT IS RELIGION ?
CAN RELIGION BE DEFINED ?
 10

CHAPTER - II
„What is religion? Can Religion be Defined?
When someone is asked ‗What is religion?, they usually point to a
mosque or church or Hindu temple or Sikh Gurudwara and say that people who
go there have ‗got‘ religion! But this is drawing attention to the places of
worship and members of the various religions, it is not telling us what religion
is. Can it be distilled from a study of these religions?

There is no consensus as to the definition of the word ―Religion‖.

Etymologically, the expression ―religion‖ is the combination of two Latin
words; ―Re‖ meaning back and ―ligare‖ meaning to bind. It conveys that
―religion‖ means ―bind-back‖. It is ordinarily understood to mean some
system of faith and practice resting on the idea of the existence of God, the
creature and ruler to whom his creature owe obedience and love. It is founded
on reverence of God and expectation of future rewards and punishments. It is
system of divine faith and worship. The quest of man for God is the foundation
for religion and its essential function is ―the search for God and the finding of
God‖.

Some scholars have tried to define religion, but an essence of religion

fails to appear so most seek to understand its effect on society. We will begin
with stating some definitions:-

The cosmos is a gigantic flywheel making 10,000 revolutions a

minute. Man is a sick fly taking a dizzy ride on it. Religion is the theory that
the wheel was designed and set spinning to give man the ride.
(H.L.Mencken)

Religion masks the face of God.

(Martin Buber)
 11

A system of beliefs and practices by means of which a group of people

struggle with the ultimate problems of human life.

(J.M. Yinger)

A belief in spiritual beings.

(E.B. Tylor)

Religion is what the individual does with his solitariness ------

Institutions, churches, rituals, bibles, codes of behave-our, are the trappings of
religion, its passing forms.
(Alfred North Whitehead)
Any beliefs which involve the acceptance of a sacred, trans-empirical
realm and any behaviour designed to affect a person‘s relationship with that
realm.

(Peter Connolly)

It is the presence in the world of something spiritually greater than man

himself … man‘s goal is to seek communion with the presence behind the
phenomena.

(Arnold Toynbee)

It is an emotion or morality touched by emotion.

(Matthew Arnold)

Ancestor worship is the root of every religion.

(Herbert Spencer)

Religion is an illusion.

(Sigmund Freud)
 12

Religion is not born out of speculation or reflection, still less out of

illusion or misapprehension, but rather out of the real tragedies of human life,
out of the conflict between human plans and realities.

(Bronislaw Malinowski)

It is the sigh of the oppressed creature, the feeling of a heartless world,

the soul in a place without a soul; it is the opium of the people.
(Karl Marx)
Religion is a virus.
(Richard Dawkins)
A religion is a unified system of beliefs and practices relative to sacred
things, that is to say, things set apart and forbidden, beliefs and practices which
unite into one single community called a church, all those who adhere to them.

(Emile Durkheim)

It is a way of life.
(Most religions)
A religion is a seven-dimensional organism, ritual, doctrinal, mythical or
narrative, experimental or emotional, ethical or legal, organizational or social,
material or artistic.
(Ninian Smart)
Religion is a revolutionary urge, a psycho-social impulse to generate a
new humanity.
(Aloysius Pieris)
Religion is a sense of the numinous, the ‗wholly other‘, the mysterium
tremendum et fascinans.

(Rudolf Otto)
 13

These definitions reflect the perspective of anthropologists,

sociologists, philosophers, psychologists, biologists, theologians, historians,
scriptures, and show that there is no universally accepted definition of religion.
The experts differ even with regard to definition! So much so that a feeling of
despair is created.

John Hick writes:

Religion is one thing to the anthropologist, another to the sociologist,

another to the psychologist (and again another to the next psychologist!),
another to the Marxist, another to the mystic, another to the Zen Buddhist and
yet another to the Jew or Christian. As a result there is a great variety of
religious theories of the nature of religion. There is, consequently, no
universally accepted definition of religion, and quite possibly there never will
be.

Some of the definitions are functional, stating what religion does, but
others are substantive, stating what religion is. If we say that religion unites or
separates people or comforts those who suffer and so on, then we are thinking
of it in a functional way. Functionalism is a theoretical perspective in sociology
but function refers more to the role of an institution in society. A substantial
definition seeks to highlight key features of a religion such as belief in God.
Durkheim appears to supply both a functional and substantive definition but
his beliefs do not include what those who want a substantive definition
consider crucial, the supernatural dimension. Religion concerns only the
human: a creation of society. His view has been followed by many modern
scholars.

Perhaps it might be helpful to consider where the term religion

originated. Religio is a Latin word originally meaning a kind of

 14

superstitious awe. It developed into scruples or conscientiousness implying

religious feeling and worship of the Gods. The awe-inspiring nature of deity
has been captured by Otto who pointed to the experience in all religions of the
phenomena. His view has been very influential but is opposed by those who
see religion as an illusion and man-made. Whatever the source of religion it
soon developed a cult of sacred things and persons forming a religious system.
Thus the definitions that emerge try to embrace these elements or concentrate
on one of them.

Religion can also mean to bind a worshipper to the deity by the

observance of cultic ceremonies and acts of devotion. Perhaps if we consider
the particular expressions of religion as found in six religions it may be
possible to arrive at a definition. In so doing we will be taking Max Weber‘s
advice that trying to define religion at the start is a mistake. Indeed it is rare for
a contemporary sociologist of religion to do so at the beginning of the
investigation.

One of the difficulties is that religion is so mixed up with other things

that it is not a distinctive category and it varies in different places and at
different times. Hence some, like D.F. Pocock, prefer to talk about beliefs
rather than religion. William James remarked that there were so many
definitions of religion and so different from one another that the word cannot
stand for any single principle or essence but is a collective name. However, we
will see that each religion has its own particular distinctiveness; and it is
possible to see signs of it in other belief systems that purport to give some
meaning and purpose to life and supply some answers to the ultimate question
of death. Are they religions or surrogates for religion?
 15

Theological

There are many theologies in the various religions based on the sacred
writings and traditions. Doctrines may be explicit in the scripture or implicit.
Thus, it is contended that the Christian doctrine of the Trinity, while not in the
Bible, can be deduced from various statements of the relation of Father, Son
and Holy Spirit. Unitarians and Muslims believe that such a deduction is not
valid and it becomes a point of issue in inter-faith dialogue. Theology is
derived from theos, meaning God, and it tries to explain and validate His
existence and revelation. Doctrines are established which form the basis of the
ministry, sacraments, authority and organization of a religion. They can cause
divisions within the community and discord with other religions.

Theology produces creeds and confessions of faith. To take Christianity

as an example, there is the Nicene (325 AD), which is concerned with the
status of Jesus Christ, and Chalcedon (451 AD), dealing with his human and
divine natures. Confessions of faith are dealt in the Thirty-Nine Articles
(1574) and the Westminster (1643), which clergy of the Anglican and
Presbyterian Church subscribe to but today are followed with mental
reservations. In each faith there is a theology which is theoretical and practical,
with the latter trying to understand the devotional and mystical writings. Other
faiths such as Judaism and Hinduism pay little attention to creeds and see
religion as a way of life.

The theological approach traditionally rested on a given faith

position, but during the last two centuries has adopted a more liberal stance
with a freer interpretation of scripture and a much greater interest in religions
other than Christianity. But revelation in its various forms – free inquiry, truth
claims-continues to be a subject of debate. An impact on theological
methodology has
 16

been made by the rise of Religious Studies which considers religion in

general and each religion in particular and uses the various
approaches. Religion is seen as part of the history of ideas.

Philosophical

Philosophy can consider the methods employed in the study of religion,

evaluate the evidence and arrive at the truth or otherwise of belief statements.
In the past, philosophy asked ultimate questions about the purpose in the world,
the existence of God, evil, morality, immortality, and so on. These questions
went beyond science and were called metaphysics. In reaction, modern
philosophy emphasized observation, experiment and induction (moving from
particular experiments to formulating a general law), so religious statements
were often treated as meaningless. The logical positivist philosopher said: ‗I do
not understand what you theologians are saying, it is non-sense because we
cannot verify or confirm it by the senses‘. In such a method there were
difficulties too for morality and aesthetics. If I say, ‗You stole that money‘, I
am referring to a fact that can be verified by witnesses, but if I say, ‗You ought
not to have stolen it‘, I am merely expressing an emotion or moral disapproval.
Moral approbation or censure statements were treated as ‗Hurrah‘ or ‗Boo‘
utterances.

But within philosophy itself there has always been a scepticism about the
ability of the senses and Immanuel Kant (1724-1804) was driven to declare that
there was a reality behind things (things-in-themselves) which we could not
grasp. He distinguished between the world of appearance which we could
observe and the world of reality which we could not. The question becomes:
‗Am I really seeing the world as it actually is or is it just an image or
representation in my mind?‘ The problem will surface again when we consider
 17

the Indian religions. But in reply it could be asserted that we could check one
sense against another: it may look like cheese but taste will show that it is
butter. With science, observations are checked by experiments.

But what of mathematics, which is not based on sense observation? The

Greeks who did so much in this area (we all remember the horrors of Euclid at
school!) spoke of an unseen dimension and an invisible world of ideas and
forms. The reply of the school of Logical Positivism was that both
mathematical statement and statements of logic were valid because of the
acceptance of the meaning of numbers and concepts. Thus, ‗All husbands are
married men‘ is true given the definition of the terms. They are analytic
statements, validated by analyzing the words used. But the philosophy failed to
do justice to the fullness of human experience, though it had drawn attention to
the importance of language and meaning.

The enquiry into religious language came to prominence in the work

of Ludwig Wittgenstein (1889-1951). Language is compared to a bag of
carpenter‘s tools, each with its particular function and technique of use or with
a range of games each with its own rules and equipment and criteria of success
or failure. We have to understand these if we are to know the game. Language
is social, it cannot be uprooted from the life of the community in which it
originated. A stranger in a foreign country needs not only to master the rules of
the language but also to study the culture, customs and traditions if he wants to
fully understand the people. The language of religion is intelligible within a
mosque, temple, church or gurudwara, and is subject to internal rules. It is
personal and cannot be reduced to what is connected with objects.

This means that we cannot define religion as a private affair as it takes

place in a community and has rules for the interpretation of sacred texts and for
 18

the regulation of the behaviour of its members. The social dimension of

religion must be recognized. Also, as Wittgenstein pointed out, while games
have their own rules they need to be brought into relation with other games and
similarities in language and rules observed. A religion needs to consider its
relation to other religions and areas of knowledge for there are family
‗resemblances‘ as well as family ‗differences‘.

Empiricism is not ruled out by many of the religions for they make the
empirical claim that the sacred books are based on the evidence of
eyewitnesses who kept company with the founder. It was the experience of the
founder of the religion which led them to believe in God and pass on to others
what they had experienced. The historian needs to sift out the kernel of
experience from the later additions and the theological viewpoint of the writers
of the Gospels or the Adi Granth or the Qur‘an and so forth. While the
development of religions shows change, we cannot imagine Christianity
without Christ or Islam without Muhammad or Sikhism without Guru Nanak.
Otherwise we make the followers greater than the founder himself! But all of
this means that the philosopher has to turn to the historian to see what the
critical interpretation of the texts is and he will find that they vary from the
conservative through to the radical.

The language of religion has a great variety of expression: metaphor,

simile, analogy, symbol, allegory. In speaking of God we are limited, for we
are using human language to describe what is beyond the human. But this does
not mean that such figures of speech do not impart information, for at times
they can be more effective than literal statements, just as a poem can startle and
arouse in a way that a factual statement cannot. We can sum up the problem of
empiricism and verification by a simple example used by John Wilson. If I say,
‗Mary is sweet‘, I am not going to confirm it by trying to taste her! But if I say
 19

‗ Sugar is sweet‘, I can taste to verify. The Two Statements are different
though having points of contact by the use of the same word. How I verify a
religious assertion has some contact with empiricism, but there are other ways
of verification.

In the case of A.S. Narayana Deekshitulu Vs. State of A.P. and

others (1996) 9 SCC 548 Hon'ble Supreme Court considered the meaning of

the word “Religion” and Article 25 and 26 of the Constitution and held as

under:

―85.Articles 25 and 26 deal with and protect religious freedom. Religion

as used in these articles must be construed in its strict and etymological sense.
Religions is that which binds a man with his Cosmos, his Creator or super
force. It is difficult and rather impossible to define or delimit the expressions
'religion' or ―matters of religion‖ used in Articles 25 and 26. Essentially,
religion is a matter of personal faith and belief of personal relations of an
individual with what he regards as Cosmos, his Maker or his Creator which, he
believes, regulates the existence of insentient beings and the forces of the
universe. Religion is not necessarily theistic and in fact there are well-known
religions in India itself like Buddhism and Jainism which do not believe in the
existence of God. In India, Muslims believe in Allah and have faith in Islam;
Christians in Christ and Christianity; Parsis in Zoroastrianism; Sikhs in Guru
Granth Sahib and teachings of Guru Nanak Devji, its founder, which is a facet
of Hinduism like Brahmo Samaj, Arya Samaj etc.

86. A religion undoubtedly has its basis in a system of beliefs and

doctrine which are regarded by those who profess religion to be conducive to
their spiritual well-being. A religion is not merely an opinion, doctrine or
belief. It has outward expression in acts as well.‖
 20

Hon’ble Supreme Court concluded that:

Therefore, whatever binds a man to his own conscience and whatever

moral or ethical principles regulate the lives of men believing in that theistic,
conscience or religious belief that alone can constitute religion as understood in
the Constitution which fosters feeling of brotherhood, amity, fraternity and
equality of all persons which find their foothold in secular aspect of the
Constitution.

SWAMI VIVEKANAND, the great Philosopher, explains

―Religion‖ as follows:-

The end of all religions is the realizing of God in the soul. That is
the one universal religion.

He further says that I want to bring to you is that religion does not
consist in doctrines or dogmas. It is not what you read or what dogmas you
believe that is of importance, but what you realize.

All religions are different forces in the Economy of God, working

for the good of mankind. I believe that they are not contradictory; they are
supplementary.

My idea therefore, is that all these religions are different forces in

the economy of God, working for the good of man-kind. I believe that they are
not contradictory; they are supplementary That Universal religion about which
philosophers have dreamed is already here.

Swami Vivekananda further explains that in every religion,

there are three parts: First there is the philosophy, which presents the whole
scope of that religion, setting forth its basic principles, the goal, and the means
for reaching it. The second part is mythology, which is philosophy made
concrete. It consists of legends relating to the lives of men or of supernatural
beings, and so forth. It is the abstractions of philosophy concretized in the
 21

more or less imaginary lives of men and supernatural beings. The third part is
ritual. This is still more concrete and is made up of forms and ceremonies,
various physical attitudes, flowers and incense, and many other things that
appeal to the senses.

Thus we can summarize that Religion is a system of faith and worship of

supernatural force, which ordains, regulates and controls the destiny of human
kinds. Every individual has a natural entitlement of religious faith and freedom
of conscience, a right to adopt or abandon any faith of his own choice. In this
sense freedom of religion and freedom of conscience is fundamental right both
constitutionally and conventionally.

******************************************
 CHAPTER-III
RECENT INCIDENTS/ NEWS IN
PRINT MEDIA REGARDING
FORCIBLE CONVERSION
 CHAPTER-IV
INTERNATIONAL COVENANTS
ON RIGHT TO RELIGION
 29

CHAPTER - IV
INTERNATIONAL COVENANTS
ON RIGHT TO RELIGION
There are mainly Two International Covenants on this point
which safeguard the freedom of Religion.
In 1966, United Nations adopted the International Covenant on
Civil and Political Rights expounding its prior statement to address
the manifestation of religion and belief. These are as follows:-

1. Universal Declaration of Human Rights (UDHR) 1948:-

Article-18- Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom to change
his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest
his religion or belief in teaching, practicing, worship and
observance.
2. International Covenant on Civil and Political Rights
(ICCPR) 1966 :-
Article 18 (1) Everyone shall have the right to freedom of
thought, conscience and religion. This right shall include
freedom to have or to adopt a religion or belief of his own
choice and freedom, either individually or in community with
others and in public or private, to manifest his religion or
belief in worship, observance, practice and teaching.
 30

(2) No one shall be subject to correction, which would impair

his freedom to have or to adopt a religion or belief of his
choice.
(3) Freedom to manifest one‘s religion or beliefs may subject
only to such limitations as are prescribed by law and are
necessary to protect public safety, order, health, or morals or
the fundamental rights and freedom of others.
(4) The State parties to the present Covenant undertake to
have respect for the liberty of parents and, when applicable,
legal guardians to ensure the religious and moral education of
their children in conformity with their own convictions.
Heiner Bielefeldt, the United Nations Special Reporter on
the Freedom of Religion or belief, in his report has divided the
right to conversion into four subcategories:

(a) the right to conversion (in the sense of

changing one‘s own religion or belief);
(b) the right not to be forced to convert;
(c) the right to try to convert others by
means of non-coercive persuasion; and
(d) the rights of the child and of his or her
parents in this regard.

Such sub categorization is helpful because the

subcategories ―differ with respect to the precise content
and degree of legal protection attached to them under
international human rights law,‖ although there are
nevertheless ―close links among the various
dimensions.‖
 31

International legal support for each of these

subcategories is clear, which Bielefeldt outlines in
detail. International treaties clearly support freedom of
religion. Bans on conversion are rooted neither in
international law nor human rights but rather in
protecting majority religions from the loss of adherents
and, subsequently, political, social, and economic
power.

A. The Right to Convert from One Religion to

Another and the Right Not to Be Forced to Convert
:The Universal Declaration of Human Rights (UDHR)
most explicitly protects the right to convert from one
religion to another in Article 18, which states ―the right
to freedom of thought, conscience and religion [...]
includes freedom to change [one‘s] religion or belief
[...].‖

The International Covenant on Civil and Political

Rights (ICCPR) acknowledges both the right to convert
and the right not to be forced to convert. Article 18(1)
states, ―Everyone shall have the right to freedom of
thought, conscience and religion. This right shall include
freedom to have or to adopt a religion or belief of his
choice [...].‖ Article 18(2) follows, ―No one shall be
subject to coercion which would impair his freedom to
have or to adopt a religion or belief of his choice.‖ This
right is non-derogable, meaning that even in times of
public emergency, the state must still protect it.

The Human Rights Committee, the body charged

with monitoring implementation of the ICCPR,
explained clearly in its General Comment No. 22 that
the freedom to adopt a religion may not be limited in
any way:
 32

―Article 18 [...] does not permit any limitations

whatsoever on the freedom of thought and conscience or
on the freedom to have or adopt a religion or belief of
one‘s choice. These freedoms are protected
unconditionally, as is the right of everyone to hold
opinions without interference in Article 19.1. In
accordance with Articles 18.2 and 17, no one can be
compelled to reveal his thoughts or adherence to a
religion or belief.‖

General Comment No. 22 elaborates on the right to

convert:

―The Committee observes that the

freedom to ―have or to adopt‖ a religion or
belief necessarily entails the freedom to
choose a religion or belief, including the
right to replace one‘s current religion or
belief with another or to adopt atheistic
views, as well as the right to retain one‘s
religion or belief.‖

The 1981 Declaration on the Elimination of All

Forms of Intolerance and of Discrimination Based on
Religion or Belief also states that:-
―this right shall include freedom to have a religion
or whatever belief of his choice‖ in Article 1(1), and,
correspondingly in Article 1(2), that ―[n]o one shall be
subject to coercion which would impair his freedom to
have a religion or belief of his choice.‖ Although not
legally binding, the 1981 Declaration has significant
weight, as it was passed by the General Assembly of
United Nations and is entirely devoted to religious
freedom.

Bielefeldt concludes that to guarantee the right to

change one‘s religion, States must ―abolish
 33

punishments against converts and remove administrative

obstacles‖ as well as ensure that third parties do not
encroach on this right through, for example, violence.
To guarantee freedom from coercion to convert, States
must ―ensure that the specific authority of State agents
and State institutions is not used to coerce people to
convert or reconvert,‖ such as in schools, the police
force, the military, and prisons. Likewise, States must
protect against third-party coercive conversion practices,
which may require legislation.

Because anti-conversion laws are usually introduced to

protect majority religions from the influence of minority
religions, the 1992 UN Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic
Minorities, which is not binding and is not mentioned in the
Bielefeldt report, is relevant. It states in Article 2(1) that people
belonging to religious minorities have the right ―to profess and
practice their own religion [...] in private and in public, freely
and without interference or any form of discrimination.‖ They
also ―have the right to participate effectively in cultural,
religious, social, economic and public life.‖

B. The Right to Try to Convert Others

ICCPR article 18(1) protects not just the internal
components of belief, such as choosing one‘s religion. It also
guarantees ―freedom, either individually or in community with
others and in public or private, to manifest [one‘s] religion or
belief in worship, observance, practice and teaching.‖ One such
manifestation is ―non-coercive attempts to persuade others,
sometimes called ‗missionary work.‘‖ ICCPR article 19(2),
which protects the right to freedom of expression, including
―freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print,
in the form of art, or through any other media of [one‘s] choice,‖
also implicates ―the freedom to communicate within one‘s own
 34

religious or belief group, share one‘s conviction with others,

broaden one‘s horizons by communicating with people of
different convictions, cherish and develop contacts across State
boundaries, receive and disseminate information about religious
or belief issues and try to persuade others in a non-coercive
manner.‖

Likewise, the 1981 Declaration recognizes in article 6 the

freedoms ―(d) to write, issue and disseminate relevant
publications in these areas‖; ―(e) to teach a religion or belief in
places suitable for these purposes‖; and ―(i) to establish and
maintain communications with individuals and communities in
matters of religion or belief at the national and international
levels.‖

The restrictions on Conversion from one religion to

another religion must be in line with ICCPR article 18(3), which
states they must be prescribed by law and necessary to protect
public safety, order, health, or morals or the fundamental rights
and freedoms of others. Bielefeldt concludes, ―Thus, limitations
imposed on the right to try to convert others require a legal
basis; they must pursue one of the legitimate aims exhaustively
listed in article 18 (3); they should be clearly and narrowly
defined; they must be proportionate; and they should not be
implemented in a discriminatory manner.‖

The HRC also outlines in General Comment No. 22

acceptable limitations on the right to try to convert:

―Article 18.2 bars coercion that would impair the right to

have or adopt a religion or belief, including the use of threat of
physical force or penal sanctions to compel believers or non-believers
to adhere to their religious beliefs and congregations, to recant their
religion or belief or to convert. Policies or practices having the same
intention or effect, such as, for example, those restricting access to
education, medical care, employment or the rights guaranteed by
article 25 and other provisions of the Covenant, are similarly
 35

inconsistent with article 18.2. The same protection is enjoyed by

holders of all beliefs of a non-religious nature.‖

C: The rights of the Child and his/her parents

regarding Conversion:
Convention on the Rights of the Child adopted and opened for
signature, ratification and accession by General Assembly resolution 44/25 of 20
November 1989 which came into force on 2 September, 1990 provides in
Article 14 as under:-
1. States Parties shall respect the right of the child to freedom of thought,
conscience and religion.
2. States Parties shall respect the rights and duties of the parents and, when
applicable, legal guardians, to provide direction to the child in the
exercise of his or her right in a manner consistent with the evolving
capacities of the child.
3. Freedom to manifest one‘s religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to protect public
safety, order, health or morals, or the fundamental rights and freedoms of
others.
Article 30 further provides as under:

30. In those States in which ethnic, religious or linguistic

minorities or persons of indigenous origin exist, a child belonging to
such a minority or who is indigenous shall not be denied the right, in
community with other members of his or her group, to enjoy his or
her own culture, to profess and practice his or her own religion, or to
use his or her own language.
******************************
 CHAPTER-V
ANTI CONVERSION LAWS IN
NEIGHBOURING COUNTRIES
 36

CHAPTER- V
ANTI-CONVERSION LAWS IN
NEIGHBOURING COUNTRIES

Anti-conversion laws have taken hold in countries where the dominant religious (and often
ethnic) majority feels threatened by an active and growing religious minority. These laws
are found in India, Nepal, Myanmar, and Bhutan. Sri Lanka has considered anti conversion
bills but has not yet enacted any, and one province in Pakistan passed but ultimately failed to
enact a bill to protect religious minorities—unlike in these other countries—from forced
conversions.

Nepal
1. Background
Nepal is predominantly Hindu: 81.3 percent of Nepal‘s 29 million people are Hindu, 9
percent Buddhist, 4.4 percent Muslim and 1.4 percent Christian. Nepal was officially a
Hindu state until 2008, when the monarchy was abolished. The Constitution, adopted on
September 20, 2015, declares that Nepal is a secular state. However, Christians and other
religious minorities fear the increasing influence of nationalist Hinduism, and there are
efforts within the country to restore Hinduism as the official state religion. Christians are
often unable to bury their dead because the government refuses to grant permits to build
Christian cemeteries.

2. Anti-Conversion Laws
The Constitution enshrines an anti-conversion provision in the section on a so-called ―right‖
to freedom of religion. While the Constitution guarantees each person the right to ―have the
freedom to profess, practice and protect his or her religion according to his or her
conviction,‖ the right is gutted by various exceptions:

No person shall, in the exercise of the right conferred by this Article, do, or cause to be
done, any act which may be contrary to public health, decency and morality or breach public
peace, or convert another person from one religion to another or any act or conduct that may
jeopardize other‘s religion.

Part 4, Chapter 19, Number 1.512 of the General Code, which is Nepal‘s criminal code,
states,

No one shall propagate any religion in such manner as to undermine the religion of other
nor shall cause other to convert his or her religion. If a person attempts to do such act, the
person shall be liable to imprisonment for a term of Three years, and if a person has already
caused the conversion of other‘s religion, the person shall be liable to imprisonment for a
 37

term of Six years, and if such person is a foreign national, he or she shall also be deported
from Nepal after the service of punishment by him or her.

The advocacy group Christian Solidarity Worldwide reported that on August 8, 2017, the
Parliament passed a bill criminalizing religious conversions. The president signed the bill
into law on 20 th October 2017. The translation of Criminal Code 2074, Section 9, Clause
158 reads:

(1) No one should involve or encourage in conversion of religion.

(2) No one should convert a person from one religion to another religion or profess them
own religion and belief with similar intention by using or not using any means of attraction
and by disturbing religion or belief of any ethnic groups or community that being practiced
since ancient times.
(3) If found guilty; there will be punishment of five years of imprisonment and penalty of
fifty thousand rupees.
(4) If foreigners are found guilty; they will have to be deported within seven days after
completing the imprisonment in third clause.

A June 2016 directive from the Ministry of Federal Affairs and Local Development told
District Development Committees to refuse to register NGOs that preached or promoted
conversion, resulting in difficulties for Christian groups seeking registration.

3. Analysis
The anti-conversion provision in the Constitution is broad. On its face, it seems to ban any
conversion, at least to the extent that someone ―converts‖ another person, which could mean
simply the encouragement of pastors or missionaries to consider the truth claims of a
religion. Further, jeopardizing another person‘s religion could be understood as ―causing‖
that religion to lose adherents through conversion away from that religion, effectively
banning all conversions. The provision also fails to recognize that religions themselves do
not have rights; rather, individuals are rights-holders, and a fundamental right is the freedom
to change one‘s religion.

The prohibition in the penal code on using ―any means of attraction‖ to ―convert‖ someone
is also broad. ―Attraction‖ could include humanitarian relief and other charitable activities of
religious people and organizations, as well as offers of prayer. Further, the provision‘s
specific focus on not ―disturbing religion or belief of any ethnic groups or community that
has been practiced since ancient times,‖ clearly intended to protect Hinduism, discriminates
against anyone who is a member of one of these ethnic groups or communities and wants to
convert away from his ―ancient‖ religion. CSW ―urge[d] the Nepali government to repeal
this unjust law and amend Article 26 (3) of the constitution as they both curtail the right to
freedom of religion or belief and undermine Nepal‘s commitments under international law, a
contradiction made even more striking as Nepal assumes its seat on the Human Rights
Council.‖ Nepal is serving on the Human Rights Council, which is supposed to protect and
promote freedom of religion and other human rights, from 2018 to 2020, and the Permanent
Mission of Nepal to the United Nations released its press release the same day the president
approved the anti-conversion provision in the penal code.
 38

4. Enforcement Nepal has already enforced anti-conversion provisions. In June

2016, authorities arrested a Christian woman who ran an orphanage on charges of
converting the orphans and human trafficking. A Christian pastor was also arrested on
conversion charges but was released after spending 25 days in jail. Nepal‘s first trial
involving conversion charges took place in July 2016. Eight Christian counselors, who were
helping children in a Christian school after a major 2015 earthquake, were arrested for
sharing a pamphlet about Jesus with those children. A judge dismissed the case in December
2016. Nevertheless, a Christian missionary shared that the government told Christian
orphanages and boarding schools that they would face serious consequences if they shared
any Christian pamphlets with children.

Myanmar
1. Background
Myanmar is a secular country, but the 2008 Constitution ―recognizes [the] special position
of Buddhism as the faith professed by the great majority of the citizens of the Union.‖ It also
recognizes Christianity, Islam, Hinduism, and Animism as religions present in the country.
Religious strife has plagued Myanmar recently, led by strong Buddhist nationalist
sentiments.

The 2014 census found that Myanmar has 51.4 million people, 87.9 percent of whom are
Buddhist, 6.2 percent Christian, and 4.3 percent Muslim. The Myanmar government has
instituted policies and carried out practices that impede the free exercise of faith. The
Rohingya, a Muslim people who live primarily in Rakhine State, are severely persecuted and
are denied citizenship. Policies and practices also impact Christians, especially ethnic
minorities. Myanmar is number twenty-four on the World Watch List. USCIRF considers
Myanmar a Tier 1 Country of Particular Concern (CPC) ―due to systematic, egregious, and
ongoing violations of freedom of religion or belief.‖

2. Anti-Conversion Law
Under the powerful influence of the nationalist group of Buddhist monks, Ma Ba Tha, the
Association for the Protection of Race and Religion, the Parliament passed four ―race and
religion‖ laws in 2015, which then-President Thein Sein signed into law. The laws target
Muslims but impact other religious minorities as well. The four laws allow officials to
impose thirty-six-month birth spacing for the Rohingya and other targeted groups; outlaw
polygamy; require any Buddhist woman who marries a non-Buddhist man to register the
marriage with the government in advance; and regulate religious conversions.
Although the National League of Democracy displaced the military-backed Union Solidarity
and Development Party with the historic free popular election of Aung San Suu Kyi in
November 2015, the government under her leadership has not repealed the laws.

The preamble of the Law Concerning Religious Conversion highlights Article 34 of the
Constitution of Myanmar, which recognizes religious freedom: ―Every citizen is equally
entitled to freedom of conscience and the right to freely profess and practice religion subject
to public order, morality or health and to the other provisions of this Constitution.‖ At the
 39

same time, the preamble claims that transparency is needed to ensure the freedom to choose
religion and convert. As such, the law lists several requirements for conversions, ostensibly
to ensure the freedom to convert.

The law requires every township to create a registration board on religious conversions,
comprised of certain individuals from the township religious affairs office, immigration
department, administration department, and women‘s affairs federation, an education
officer, and elders. Anyone wanting to exercise the so-called right to convert must be
eighteen years of age or older and must report personal information to the township
registration board, including current religion and the religion to which he or she wants to
convert, as well as the reason for wanting to convert. The registration board will then
interview the applicant to determine whether he or she has made the decision to convert
freely. At the time of the interview, the board must schedule a ninety-day period for the
applicant to study the religion to which he or she wants to convert, including the religion‘s
marriage and family laws and customs. The board determines whether the applicant has
been induced or under undue pressure to convert and has the authority to deny a conversion
certificate.

The law also prohibits application ―for conversion to a new religion with the intent of
insulting, degrading, destroying or misusing any religion.‖ The associated penalty for this is
up to two years‘ imprisonment and/or a fine of up to 200,000 Kyats (approximately $160).
Likewise, compelling another person to convert ―through bonded debt, inducement,
intimidation, undue influence or pressure‖ is prohibited and will result in one year‘s
imprisonment and/or a fine of up to 100,000 Kyats. The law also forbids hindering or
interfering with a person‘s desire to change his or her religion, with a punishment of six
months‘ imprisonment and/or a fine of up to 50,000 Kyats. Anyone who violates the law
more than once ―is liable to be punished again with the harshest sentences as stipulated
under this law.‖

The law states, ―Religious conversion is not concerned with citizenship under this law,‖ an
unclear provision that may mean the law does not apply to non-citizens. The Constitution
does not grant religious freedom to non-citizens, including the Rohingya who have been in
Myanmar for generations. After introducing, strongly advocating for, and celebrating the
passage of this law, nationalist Buddhist monks have held mass conversion ceremonies,
indicating the law does not police all religions but is only targeted at religious minorities.

3. Analysis
The four race and religion laws have been widely condemned by human rights advocates.
Given the current religious and ethnic tensions in Myanmar, the clear purpose of the
conversion law and the other three in the package is to bolster Buddhism and harm minority
religions, especially Islam. The law grants incredible power to the state to regulate personal
religious affairs, which violates the right to privacy in article 17 of the ICCPR in addition to
the right to freedom of religion. Township registration boards will likely be composed
primarily of Buddhists with an interest in preserving Buddhism, and ethnic and religious
minorities have no guarantee their rights will be respected. There is also no provision in the
law allowing appeals.

The prohibition on converting with an intent to insult or degrade a religion fails to account
for the fact that it is individuals, not religions, who have rights. Further, prohibitions on
 40

unduly influencing someone to convert and preventing someone from converting lack
definitions and thus are overbroad. There are no criteria for how these determinations will be
made and putting such discretion in the hands of likely biased registration boards poses
serious threats to minorities. It is also clear the government has no intention of enforcing
these prohibitions equally in all religious contexts.

Article 364 of the Constitution prohibits ―the abuse of religion for political purposes‖ and
―any act which is intended or is likely to promote feelings of hatred, enmity or discord
between racial or religious communities or sects.‖ Given that the goal of Ma Ba Tha in
introducing the religious conversion law was to promote Buddhism and stoke religious
tensions, the law clearly violates the Constitution. However, the Constitution notes a
significant exception to the granting of free exercise of religion, as it allows the government
to ―enact[] law for the purpose of public welfare and reform‖ and to ―assist and protect the
religions its recognizes to its utmost.‖

United Nations human rights experts spoke out strongly against the Myanmar anti-
conversion bill in June 2014. Heiner Bielefeldt, Special Rapporteur on freedom of religion
or belief from 2010 to 2016, argued that ―State interferences into the right to change one‘s
religion or belief are per se illegitimate and incompatible with international human rights
standards.‖ He highlighted the ludicrousness of the burden of meeting administrative
requirements to convert. Rita Izsák, Special Rapporteur on minority issues, called on
Myanmar ―not to create obstacles to the enjoyment of religious identity, minority rights, and
the right of every individual to freely choose or to change their faith.‖ Special Rapporteur on
the situation of human rights in Myanmar Yanghee Lee, who had been called a slur by one
of the extremist Buddhist monks leading the charge to pass the race and religion laws,
identified the draft bill as a ―signal [of] the risk of Myanmar going off-track on its path to
being a responsible member of the international community that respects and protects
human rights.‖

Bhutan
1. Background
Bhutan is a landlocked country surrounded by China and India. The population, at 750,000
people, is 75 percent Buddhist and 22 percent Hindu. Estimates of Christians range from
2,000 to 15,000. It is a Buddhist kingdom and the king must be Buddhist. The Constitution
states that ―Buddhism is the spiritual heritage of Bhutan, which promotes the principles and
values of peace, nonviolence, compassion and tolerance.‖ It also says it is ―the responsibility
of religious institutions and personalities to promote the spiritual heritage of the country
while also ensuring that religion remains separate from politics in Bhutan. Religious
institutions and personalities shall remain above politics.‖

Government policies and practices generally favor Buddhism and discriminate against
Christian groups. Registration of religious organizations is required, but out of 96 registered
organizations, one is Hindu and the rest are Buddhist. No Christian groups are registered,
despite their requests. Christians must worship in private and face pressure to participate in
Buddhist traditions. Bhutan is number thirty-three on the World Watch List.
 41

2. Anti-Conversion Law
Article 7.4 of Bhutan‘s Constitution, enacted in 2008, states, ―A Bhutanese citizen shall
have the right to freedom of thought, conscience and religion. No person shall be compelled
to belong to another faith by means of coercion or inducement.‖ Bhutan then amended its
Penal Code in 2011, adding Section 463A, which states,

―A defendant shall be guilty of the offence of compelling others to belong to another faith if
the defendant uses coercion or other forms of inducement to cause the conversion of a
person from one religion or faith to another.‖ Section 463B makes compelling others to
convert a misdemeanor. Article 5(g) of the Religious Organizations Act of 2007 states that
no religious organizations shall ―compel any person to belong to another faith, by providing
reward or inducement for a person to belong to another faith.‖ None of the laws provide any
definitions of coercion or inducement.

3. Analysis
Bhutan‘s anti-conversion laws have the same problems as those laws in India, Nepal, and
Myanmar. Due to the absence of definitions, minority religious groups risk punishment for
religious teaching, charitable activities, and education, with major potential for arbitrary
discrimination by the government.

Sri Lanka

1. Background
Although Sri Lanka‘s thirty-year civil war ended in 2009, religious and ethnic violence still
persists, and the promotion of Buddhist supremacy has increased in recent years at the
expense of religious minorities. The population of Sri Lanka, at 22.2 million people, is
approximately 69 percent Buddhist, 15 percent Hindu, 8 percent Muslim, and 8 percent
Christian. The Constitution affords special protection to Buddhism, giving it the ―foremost
place,‖ and government policies and practices increasingly favor Buddhism and discriminate
against minority religions. Christian groups have reported numerous attacks against
Christians every year. The National Christian Evangelical Alliance of Sri Lanka recorded
eighty five incidents of violence against Christians or Christian churches and obstruction of
religious services in 2016 and eighty-seven in 2015. The Buddhist Power Force, known
locally as the Bodu Bala Sena, emphasizes Sinhalese Buddhist supremacy and speaks out
against religious and ethnic minorities, calling for an anti-conversion law to stem alleged
―forced conversions‖ by Christians and a prohibition on missionary groups. Sri Lanka is
number forty-four on the World Watch List.

The Constitution guarantees every person ―freedom of thought, conscience and religion,
including the freedom to have or to adopt a religion or belief of his choice‖ and to every
citizen ―the freedom, either by himself or in association with others, and either in public or
in private, to manifest his religion or belief in worship, observance, practice and teaching.‖
However, the constitutionally guaranteed rights to freedom of speech and freedom of
 42

association are each subject to restrictions in law ―in the interests of racial and religious
harmony,‖ providing leeway for the government to curtail these rights to protect its own
ideas of ―religious harmony.‖

2. Anti-Conversion Bills
Anti-conversion bills aimed at decreasing the influence of minority religions and at
bolstering Sinhalese Buddhism have threatened religious freedom in Sri Lanka. The
introduction of these bills was motivated by the evangelism of Christian groups providing
medical and other assistance after the 2004 Indian Ocean tsunami; there were claims of
alleged inducement to convert by gift-giving, such as food and medicine, although such
claims were difficult to substantiate.

Two pieces of legislation introduced in 2004 would have banned conversions, but neither
became law. The first, proposed by Buddhist monks from the nationalist JHU party, would
have banned conversions ―by use of force or allurement or by fraudulent means,‖ defined
broadly. All converts would have had to report their conversions to the government. Those
convicted of wrongly converting others would have been subject to five years‘
imprisonment, or seven if the converted person were a woman, child, student, inmate, or law
enforcement officer. The President‘s cabinet introduced the second bill, which would have
banned all religious conversations and forced the extradition of any foreigner involved in
conversions in Sri Lanka.

3. Analysis
In August 2004, the Supreme Court of Sri Lanka ruled unconstitutional two of the bill‘s
clauses: the requirement that those who have converted report their conversions to the
government, and the punishment for those who fail to report. The Court said that Parliament
nevertheless could pass the law as-is with at least a two- thirds majority, with a subsequent
referendum by the people of Sri Lanka. However, the Supreme Court did not rule on the
criminalization of fraudulent conversions.

Special Rapporteur Jahangir visited Sri Lanka in 2005 and her report addresses draft
conversion laws. During her visit, Jahangir did not meet anyone who claimed to have been
induced to convert even though alleged inducement was the basis for the introduction of the
bills. Jahangir asserts in her report that someone who ―has converted after having received
presents and inducements‖ may ―be impaired if he or she does not have the possibility to
freely decide to convert to another religion, even after having received a gift.‖ She also
expresses concern that the wording of the laws ―allows for too broad an interpretation,‖ that
―it is very difficult to assess the genuineness of a conversion,‖ and that ― mechanism
designed to monitor conversions and thus the reasons and purposes behind them could
constitute a limitation on freedom of conscience.‖ She laments that the vague wording of the
draft laws could become ―a tool of persecution by those who are genuinely opposed to
religious tolerance.‖ Finally, because the draft laws allowed complaints by anyone, not just a
victim, ―overzealous people [would] create further polarization and generate an atmosphere
of fear among religious minorities.‖ Sri Lanka ultimately decided not to pursue an anti
conversion law at the time.
 43

4. Another Round of Anti-Conversion Legislation

Sri Lanka again in 2009 introduced draft legislation ostensibly to ban forced conversions.
However, the bill yet again was too broad. USCIRF attacked the bill, highlighting three
major concerns. First, its terms were so broadly defined that it would ―ban the distribution of
religious literature,‖ ―prohibit many charitable activities,‖ and ban the condemnation of any
other religion during a discussion of one‘s own religion. USCIRF concluded, ―Should the
bill become law, Sri Lankans rightly would be in fear of long prison terms and crippling
financial penalties when they merely speak to others about their differing religious beliefs,
exercising basic rights to freedom of expression.‖ Second, the bill would have allowed a
more severe punishment if a woman had been the subject of a case, raising the imprisonment
sentence from five years to seven. Third, it would have made ―hiring converts as clergy or
employees of faith based schools or hospitals a legally suspect act,‖ which ―could have [had]
a chilling effect on freedom of religion.‖ The bill lapsed in 2010. Given the current trend
toward increasing Buddhist extremism, it is possible that an anti-conversion bill will be
introduced again.

Pakistan
1. Background
Pakistan, where 95 percent of the 201.2 million people are Muslim, 75 percent of whom are
Sunni, does not have a national anti-conversion law, but one expert asserts that blasphemy
laws there, which forbid insulting the Quran or the Prophet Mohammed, similarly affect
people wanting to convert. The definition of ―insult‖ is not clear, and just one unverified
accusation of blasphemy can result in an arrest. The laws also serve as justification for
vigilante justice against Shiite Muslims, Hindus, Christians, and other minorities. Pakistan is
number five on the World Watch List. USCIRF considers Pakistan a Tier 1 Country of
Particular Concern due to its blasphemy law, official policies of religious discrimination,
and failure to protect religious minorities from terrorist organizations and individuals.

2. Anti-Conversion Law
In November 2016, the Sindh province passed a law criminalizing forced conversions to,
according to the law, ―provide protection for those who are victims of this abhorrent
practice,‖ which allegedly is common in this predominantly Muslim country. Forced
conversions in Pakistan often entail abducting girls and women and forcing them to convert
to Islam to be married; one estimate is that hundreds of Christian and Hindu girls are
forcibly converted each year. The Sindh province has a large Hindu minority, and a Hindu
legislator claimed the law ―will end the plight of minority Hindus, who will feel more
protected now.‖ Muslims called for the repeal of the law, alleging that no forced conversions
had occurred in Sindh. Under the law, those convicted of forcibly converting others receive
a punishment from five years‘ imprisonment to a life sentence. Minors under the age of
 44

eighteen years are not allowed to change religions, and anyone who wants to convert has to
wait for twenty-one days.

3. Analysis
Unlike in other countries with anti-conversion laws, the law was passed to protect minorities
from forced conversion to the dominant religion rather than protecting the dominant religion
from encroachment by minority religions. There is substantial evidence that forced
conversion to Islam is a problem in Pakistan, where as in the other countries the evidence
suggests that anti-conversion laws are used to prevent all conversions away from the
majority religion.

The Sindh bill was met with serious resistance from Islamic hardliners, forcing the Sindh
governor to send it back to the Assembly for revision. If a revised act passes, there will
likely be no clause prohibiting conversion of minors, effectively ―crippling‖ the law since
the conversion of minor girls in forced marriages prompted the original law.
Courtesy:
Penn State Journal of Law & International Affairs Volume 6 | Issue 1 June 2018
Anti-Conversion Laws and the International Response By: Meghan G. Fischer

***********************************************
 CHAPTER-VI
PRE- INDEPENDENCE AND POST
INDEPENDENCE ANTI
CONVERSION LAWS IN INDIA:
 45

CHAPTER-VI
PRE-INDEPENDENCE AND POST
INDEPENDENCE ANTI CONVERSION
LAWS IN INDIA:

AN ANALYSIS IN THE LIGHT OF CONSTITUTIONAL

GUARANTEE OF FREEDOM OF RELIGION

Anti-conversion laws were in operation in several princely states

before independence. After independence many states enacted such laws
with a view to prevent conversion by use of ‗force‘, ‗fraud‘ or
allurement/inducement. The former do not call for a detailed analysis
whereas the latter need deeper examination.

Anti-conversion Laws of Pre-Independence era:

British India has had no anti-conversion laws probably because the

British themselves professed a proselytizing religion. However, many
princely states had enacted such laws. Prominent among them were
The Rajgrah State Act, 1936,
The Patna freedom of Religion Act, 1942,
The Surguja State Apostasy Act, 1945 and
The Udaipur State Anti Conversion Act 1946.
Similar legislations were promulgated in Bikaner, Jodhpur, Klahanadi and
Kota etc,. Specifically against conversion to Christianity.

The first anti conversion law was the Rajgrah State conversion Act,
 46

which was enacted in 1936. This enactment banned the preaching of

Christianity and prohibited the entry of Christian missionaries in the
former Kingdom of Rajgrah, Jodhpur, Surguja etc. of Chhotanagpur
areas. The Patna Freedom of Religion Act, 1942 was enacted thereafter.
The Surguja State Apostasy Act, 1945 was the third enactment to prohibit
conversion from Hinduism to Islam and Christianity by vesting the power
to allow or disallow conversion in the Darbar of the Rajas under the guise
of maintaining law and order and establishing public peace. Similarly the
Udaipur State Anti-Conversion Act, 1946 required all conversions from
Hindu religion to other faiths to be registered officially. The basic purposes
of all these laws were to insulate Hindus from the onslaught of Christian
missionary activities. Most of these laws required individual converts to
register their conversion with specified government agencies. Those who
secured conversion of a person by fraud, misrepresentation, coercion,
intimidation, undue influence or the like, were made liable to punishment.
Minors could not have been converted and children of convert would not
automatically get their parents new faith. Conversion to another religion
was thus legally sought to be regulated by the Hindu rulers of princely
states.
Anti-Conversion Laws in Post Independent India:

During the process of Constitution making, there was a lot of sound

and fury in the Constituent Assembly over the issue of religious
conversion. Though, there was no difference of opinion on the merits of
the case that forcible conversion should not be or cannot be recognized by
law, it was strongly felt not to make an express provisions in the
Constitution for all such conceivable things, which could well be regulated
by an ordinary legislation.
 47

Since the adoption of the Constitution of India, many attempts were

made to enact a central legislation to regulate religious conversions in
India.
In 1954, Mr. Jethalal Harikrishna Joshi, Member of the then
ruling party moved in Parliament the ‗Indian Converts (Regulation and
Registration) Bill, 1954‘ providing for compulsory licensing of the
missionaries and for registration of conversion with government
functionaries. It was opposed mainly by Christians; the Bill was eventually
dropped at the behest of the then Prime Minister of India.
In 1960 another Private Bill by Sri Prakash Veer Shastri, MP was
introduced in Parliament having the following provisions:-

2. Definitions. – In this Act, unless the context otherwise require:-

1. ―convert‖ means a person who has voluntarily relinquished his relation
by birth and adopted another religion and includes a re-convert; and
cognate expressions shall be construed accordingly;
2. “licensing authority” means the District Magistrate for the area
comprised in his District;
3. “licensee‖ means a person to whom a license has been granted under
section8;
4. “prescribed‖ means prescribed by rules made under this Act;
5. “religion by birth‖ means-the religion which, at the time of birth of
any person,-
(i) the parents of such person were profession, or
(ii) the father of such person was profession if the parents were professing
different religions, or the mother of such person was professing if such
person is illegitimate, or
(iii) the religion in which a person is brought up by the person who or
institution which looked after the welfare of such person of such person,
neither of whose parents is known.
3. Method of becoming convert. - No person shall become a convert,
without making a declaration to that effect in such manner as may be
prescribed or without performing religious rites or ceremonies with the aid
 48

of persons possessing license granted by the licensing authority for this

purpose.
4. Notice by convert. - (1) Any person intending to become a convert
as provided in section 3 shall give notice thereof to the licensing authority
in such form as may be prescribed.
(2) The licensing authority shall keep all notices given under sub-section
(1) with the records of his office and shall also forth-with enter a true copy
of every such notice in a book prescribed for that purpose to be called the
Convert Notice Book and such book shall be open for inspection at all
reasonable times without fee by every person desirous of inspecting the
same.
(3) The licensing authority shall cause every such notice to be published
immediately by affixing a copy thereof to some conspicuous place of his
office and in such other manner as may be prescribed.
(4) After the expiration of thirty days from the date on which such notice
has been furnished under sub-section (3), the intended conversion may
take place.
5. Registration of converts. - Every convert and licensee shall, within
three months of the date on which conversion takes place, furnish to the
licensing authority of the area in which the convert was residing at the time
of his conversion, such particulars as may be prescribed, so as to enable
that authority to enter the name of the convert in the register to be
maintained for the purpose.
6. Register of records concerning converts.- Every licensing authority
shall maintain a register in the prescribed form setting forth the following
particulars concerning a convert and publish annually a list of converts in
such manner as may be prescribed:-

1. Name of the person before conversion.

2. Name of the person after conversion, if the name is changed.
3. Age, sex and occupation.
4. Religion by birth.
5. Place of domicile.
6. Place and date of conversion.
7. Religion adopted.
8. Name of the licensee.
9. Such other particulars as may be prescribed.
 49

7. License for effecting conversion. - No person shall perform any

religious rite or ceremony, or do any other act, for the purpose of
converting any minor, or any other person who is not a minor without
obtaining a written license from the licensing authority.
8. Application for license. - (1) An application for obtaining a license
under section 7 shall be made in writing to the licensing authority in such
form, and containing such particulars, as may be prescribed.
(2) On receipt of an application made under sub-section (1), the licensing
authority may, after making such inquiry as may be considered necessary,
grant a license in the prescribed form, subject to such terms and conditions
as may be prescribed and as it may think fit to impose. The licensing
authority may, for reasons to be recorded in writing, refuse to grant the
license to any person.
(3) A license granted under sub-section (2) shall remain in force for two
years only, unless it is renewed by the licensing authority on an application
made to it in the prescribed form at least sixty days before the date of
expiration of such license:
Provided that if an application for renewal of license is made within the
time fixed, the license shall continue to be in force until orders are passed
on such application.
(4) The licensing authority may, after giving notice to the licensee and
making such inquiry as may be considered necessary, revoke, suspend or
cancel any license granted under sub-section (2) or renewed under sub-
section (3) if it is satisfied that the terms and conditions of the license are
not property complied with.
(5) Any person who is aggrieved by the order of the licensing authority,
refusing to grant or renew or revoking, suspending or cancelling the
license may, within sixty days from the date of communication of such
order, appeal to Government whose decision shall be final.
9. Penalty. - (1) Any person who contravenes, or abets the contravention
of the provisions of section 3, sub-sections (1) and (4) of section 4 or
section 7, shall be punishable with fine which may extend to three hundred
rupees.
(2) Any person who contravenes the provision of section 5 or rules made
there under shall be punishable with fine which may extend to two hundred
rupees and to a further fine of ten rupees for each day on which such
contravention continues.
(3) Any person who contravenes any of the terms and conditions of license
granted or renewed under the provision of this Act or of any of the rules
made there under shall be punishable with fine which may extend to one
hundred rupees, in addition to the cancellation of his license.
 50

1. Offences cognizable and bailable. - Notwithstanding anything

contained in the Code of Criminal Procedure, 1898, offences under this
Act shall be cognizable and bailable.
2. Rules. - (1) The Government may make rules for the purpose of
carrying into effect the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing
provision such rules may provide for all or any of the following matters,
namely:-
(i) manner of declaration to be made by a person desiring
to become a convert;
(ii) form and manner of publication of notice;
(iii) particulars to be furnished to the licensing authority by
a convert or a licensee;
(iv) form of register to be maintained, and the manner of
annual publication of a list of converts by the licensing
authority; and
(v) form of, and particulars to be entered in, an application
for license.

‗Backward Communities (Religion) Protection Bill‘, which aimed at

checking conversion of Hindus to ―non-Indian religions‖ which, as per the
definition in the Bill, included Islam, Christianity, Judaism and
Zoroastrianism. It was soon rejected by Parliament for its apparent affront
on specific religious faiths.
Again in 1979, the house had witnessed introduction of ‗Freedom
of Religion Bill‘, by O.P. Tyagi, seeking official curbs on inter- religious
conversion, which was opposed among others by the Minorities
Commission. Thereafter no such attempts were made in this direction to
enact central law to regulate religious conversion.

However, in some of the States due to the overwhelming presence of

the problem and persistent demand to ban conversion by force, fraud or
allurement, the issue had been given serious thought. The State of Madhya
Pradesh was first in order, which appointed a committee called ‗Christian
Missionary Activities Committee‘ on April 16, 1954 headed by Dr.
 51

Bhavani Shankar Niyogi, former Chief Justice of the Nagpur High Court to
have a thorough inquiry made into the whole issue through an impartial
committee. Mr. K.C. George, a Professor in the Commerce College at
Wardha, represented the Christian Community. The Report of the
Committee (called as Niyogi Committee Report) was published by the
Government of Madhya Pradesh in 1956.
Relying on the recommendations of the Niyogi Committee, the State
of Madhya Pradesh had enacted Madhya Pradesh Dharma Swantantraya
Adhiniyum, 1968. By then the State of Orissa had passed a similar
legislation called Orissa Freedom of Religion Act, 1967. Subsequently
many other States have followed the suit. Similar legislations of other
states are Chattisgarh Freedom of Religion Act,1968 (The Madhya Pradesh
Act was adopted by the State of Chattisgarh after its formation in the year
2006); Arunachal Pradesh Freedom of Religion Act, 1978; Tamil Nadu
Prohibition of Forcible Conversion of Religion Act, 2002; Gujarat
Freedom of Religion Act, 2003; Rajasthan Dharma Swatantraya (Freedom
of Religion) Act, 2006; Jharkhand Freedom of Religion Act, 2017 and
recently, the State of Himachal Pradesh too had passed Himachal Pradesh
Freedom of Religion Act, 2019 after repealing its earlier Act of 2006.
Thus, nine out of twenty-eight States in India have enacted laws
regulating Conversions in their respective jurisdictions. However, the
Tamil Nadu legislation has been repealed in 2006. The State of Madhya
Pradesh had introduced few changes to the 1968 Act through Madhya
Pradesh Dharma Swantantraya (Sanshodhan) Adhiniyam, 2006. The State
of Chattisgarh had recently passed amendment Act to amend Chattisgarh
Freedom of Religion Act, 1968. Important provisions of all these
legislations have been analyzed in the light of relevant constitutional
provisions in Chapter VIII.
 CHAPTER-VII
CONSTITUTIONAL FRAMEWORK
OF RIGHT TO FREEDOM OF
RELIGION IN INDIA
 52

CHAPTER VII
CONSTITUTIONAL
FRAMEWORK OF RIGHT TO
FREEDOM OF RELIGION IN
INDIA
The founding fathers of the Constitution gave unto themselves, ‗we
the people of India‘, the fundamental rights and directive principles of state
policy to establish an egalitarian social order for all sections of the society in
the supreme law of the land itself. The principle of ‗equality of religion‘,
being an essential facet of egalitarianism, has, thus, found a place in the
Constitution of India. Religious tolerance and equal treatment of all religious
groups are essential parts of secularism. Indian Constitution has been built,
inter alia, on such secular edifice. Though the term ‗secularism‘ has not
found expression in the original Constitution as adopted in 1950, the
principles of secularism were embedded in various parts of our Constitution,
in particular, the preamble, fundamental rights and directive principles of
state policy. More particularly Articles 25, 26, 27 and 28 provide guarantee
to various facets of right to freedom of religion with inbuilt restrictions and
limitations thereof.
1. Scope and Ambit of Right to Freedom of Religion:

The Constitution of India is an embodiment of both passive as well as

positive contents of secularism. It is passive in the sense that state neutrality
in matters of religion is envisaged in the Constitution. India being a secular
state, there is no state or preferred religion as such. An element of religious
tolerance is implicit in it. At the same time, India is not an irreligious state. It
equally treats all religious groups, provides protection, freedom to practice,
 53

profess and propagate religion and to manage religious affairs, etc., which
are positive dimensions of secularism, so that every religion can flourish
freely without impediments. These secular credentials of the Indian
Constitution are explicit, mainly, in Articles 25, 26, 27 and 28 of the
Constitution. For the purpose of convenience, the scope and ambit of these
provisions can be discussed under different headings.

Freedom of Conscience and free profession, practice and

propagation of religion:

Article 25 of the Constitution of India deals with these core concepts

of freedom of religion. It is the most basic of various other concomitant
rights of religious freedom. It reads:
25. (1) Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to freedom
of conscience and the right freely to profess, practice and
propagate religion.

(2)Nothing in this article shall affect the operation of any existing

law or prevent the state from making any law–

(a) Regulating or restricting any economic, financial, political or

other secular activity which may be associated with religious
practices;
(b) Providing for social welfare and reform or the throwing
open of Hindu religious institutions of a public character to all
classes and sections of Hindus.

Explanation: I. The wearing and carrying of kirpans shall be

deemed to be included in the profession of the Sikh religion.
Explanation: II. In sub-clause (b) of Clause (2), the reference to
Hindus shall be construed as including a reference to persons
professing the Sikh, Jaina or Buddhist religion, and the reference to
Hindu religious institutions shall be construed accordingly.
Article 25 of the Constitution guarantees the right to every person,
whether citizen or non-citizen, freedom of conscience and right to freely
 54
profess, practice and propagate religion. However, the Constitution has not
granted these freedoms in absolute terms. They are made subject to: (i)
Public order, morality and health; (ii) Other provisions of Part III i.e., other
fundamental rights (iii) any law, whether existing or future, providing for
regulation or restrictions of an economic, financial, political or other secular
activity which may be associated with religious practice, and (iv) any law,
whether existing or future, providing for social welfare and reform.
It was after deep thought and great deliberations, in the Constituent
Assembly, that freedom of conscience and right freely to profess, practice
and propagate religion has been guaranteed in India subject, of course, to the
limitations defined in the Constitution itself. It is pertinent to note, as it is
evident from the debate in the Constituent Assembly, that the phrase
‗freedom of conscience‘ and ‗right freely to profess and practice religion‘
got incorporated into the Constitution without much controversy. The
incorporation of the word ‗propagate‘ was the subject matter of great
controversy over which, more or less, the entire debate on the article was
centered on. Mr. Tajamul Hussain, for instance, opposed the very idea of
guaranteeing the ‗right to propagate religion‘. While agreeing that the people
should have the right to freely profess and practice religion, he vehemently
argued that religion is a private affair between oneself and his Creator. It has
nothing to do with others. One should honestly profess and practice religion
at home without demonstrating it for the sake of propagation. Propagation of
religion, according to him, would become a nuisance to others. Thus, he
moved an amendment for the deletion of the word ‗propagate‘ from the draft
constitution. The same view was endorsed by Mr. Lokanath Mishra, albeit,
for different reasons. He too had drastically opposed the idea of according
the status of fundamental right to propagate religion and thereby
encouraging the same. However, many other members, per contra, have
opposed the amendment suggesting deletion of the word ‗propagate‘ from
 55
the draft constitution. A common point made by some of them was that the
right to propagate religion, as formulated in the article, was not absolute; it
was circumscribed by certain conditions that the state would be free to
impose in the interests of public order, morality and health. It had also been
laid down that the exercise of the right should not conflict with the other
provisions relating to fundamental rights. In particular, the article did not
give an unlimited right of conversion, for if any attempts were made to
secure mass conversion through undue influence either by money or
through pressure, the State had the right to regulate such activity. In view of
the safeguards, the inclusion of the word ―propagate‖ could not possibly
have any ―dangerous implications‖, especially since under the secular set-
up envisaged in the Constitution there would be no particular advantage to a
member of one community over another, nor would there be ―any political
advantage by increasing one‘s fold‖. T.T. Krishnamachari stressed the point
that the right was not given to any particular community and could be
exercised by everyone so long as the conditions laid down were respected.
K. Santhanam and K.M. Munshi asserted that even if the word ―propagate‖
was not included in draft Article 19, under the right to freedom of speech
and expression guaranteed by draft Article 13, it would still be open to a
religious community to persuade other people to join its faith. Further, K.M.
Munshi finally submitted that the compromise achieved by the Minority
Committee, which led to the insertion of the expression ‗propagate‘ should
not be disturbed and the harmony and confidence should always be
maintained. Thus, the expression ‗propagate‘ was retained in the draft
Article 19, which was approved by the Constituent Assembly on 6 th
December 1948. The said article was later renumbered as Article 25 in the
Constitution. For the better understanding of the scope and ambit of Article
25, the religious freedom guaranteed therein may conveniently be divided
into two: (i) Right to freedom of conscience; (ii) Right freely to profess,
 56
practice and propagate religion. However, limitations on the said freedoms
are discussed under a different heading altogether.

(i) Right to Freedom of Conscience: Freedom of Conscience envisages

a freedom of an individual to hold or consider a fact, viewpoint, or
thought regardless of anyone else‘s view. To deny a person‘s
freedom of thought is to deny what can be considered one‘s most
basic freedom – to think for one‘s self. Since the whole concept of
‗freedom of conscience or thought‘ rests on the freedom of the
individual to believe whatever one thinks is best (freedom of belief),
the notion of freedom of religion is closely related and inextricably
bound up with these. The freedom of conscience guaranteed under
Article 25 intended to prevent any degree of compulsion in matter of
belief. Everyone is entitled to believe or not to believe a particular
tenet or to follow or not to follow a particular practice in matters of
religion. No one can, therefore, be compelled, against his own
judgement and belief to hold any particular creed or follow a set of
religious practices. The Constitution has left every person free in the
matter of his relation to his Creator, if he believes in one. It is, thus,
clear that a person is left completely free to worship God according
to the dictates of his conscience, and that his right to worship as he
pleased is unfettered so long as it does not come into conflict with
any restraints, imposed by the State in the interest of Public order,
etc., A person is not liable to answer for the verity of his religious
views, and he cannot be questioned as to his religious beliefs, by the
State or by any other person. It is, however, not implied that liberty
of conscience is reckless freedom from moral obligation, but it is
rather that responsibility of a free spirit, which alone can recognize
and meet a moral obligation. Our Constitution therefore guarantees
that all persons are equally entitled to freedom of conscience, but this
right is subject to public order, morality and to the other provisions
contained in Part III.
(ii) Right freely to profess, practice and propagate religion: Religion
is a matter of faith with individuals or communities and it is not
necessarily theistic. There are well known religions in India like
Buddhism and Jainism, which do not believe in God or in any
Intelligent First Cause. A religion undoubtedly has its basis in a
system of beliefs or doctrines which are regarded by those who
profess that religion as conducive to their spiritual well being, but it
will not be correct to say that religion is nothing else but a doctrine
or belief. A religion may not only lay down a code of ethical rules
for its followers to accept, it might prescribe rituals and observances,
 57

ceremonies and modes of worship which are regarded as integral

parts of religion, and these forms and observances might extend even
to matters of food and dress. Thus, the guarantee under the
Constitution of India not only protects the freedom of religious
opinion but it protects also acts done in pursuance of a religious
belief. The apex court, while dealing with the scope of Article 25, in
Ratilal Panachand Gandhi v. State of Bombay, 1954 AIR 388 has
reiterated the wide amplitude of the provision and observed:

―…Subject to the restrictions which this Article imposes, every

person has a fundamental right under our Constitution not merely to
entertain such religious belief as may be approved of by his
judgment or conscience but to exhibit his belief and ideas in such
overt acts as are enjoined or sanctioned by his religion and further to
propagate his religious views for the edification of others‖.

Thus, the Constitutional guarantee of freedom of religion in India is

very wide, though not absolute. It includes freedom to profess – i.e., to
acknowledge publicly and to follow a particular faith; to practice – i.e., to act
according to the belief and customs of religion including performances of
ceremonies, rituals and observances which are regarded as integral parts of
religion; and to propagate – i.e., to transmit or spread one‘s religion by
exposition of its tenets. What is guaranteed by Article 25 is right to entertain,
exhibit and propagate and disseminate a religious belief based on the
person‘s judgment and conscience. But whether a person propagates his
personal views or the tenets of the religious institution or whether
propagation takes place in a temple or in any other meeting is immaterial for
the purpose of Article 25. The term ‗propagate‘ has, however, been the
subject matter of controversy as to whether it includes right to convert a
person to one‘s own religion. The apex court, in Digyadarsan Rajemdra
Ramdass jee v. State of A.P. 1970 AIR 181., answered the issue negatively
by holding that the right to propagate one‘s religion means the right to
communicate a person‘s beliefs to another person or to expose the tenets of
that faith, but would not include the right to ‗convert‘ another person to the
 58

former‘s faith. In Re v. Stainislaus vs. State of Madhya Pradesh, relying on

dictionaries, the court has reiterated that: ―what the Article grants is not the
right to convert another person to one‘s own religion, but to transmit or
spread one‘s religion by an exposition of its tenets‖.
Thus, the religious freedom is confined to religious belief, which
binds spiritual nature of men to super-natural being. It includes worship,
belief, faith, devotion, etc. and extends to rituals. Religious right is the right
of a person believing in a particular faith to practice it, preach it and profess
it.

Other Facets of Freedom of Religion:

As mentioned above, the Constitutional guarantee of freedom of

religion is not just confined to freedom of conscience and to freely profess,
practice and propagate religion, it is very wide. Every religious
denominations or any section thereof have been given the right (a) to
establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion; (c) to own and acquire
movable and immovable property; and (d) to administer such property in
accordance with law. These rights are subject to public order, morality and
health. Further, Article 27 provides immunity from payment of taxes, the
proceeds of which are specifically appropriated in payment of expenses for
the promotion or maintenance of any particular religion or religious
denomination. These provisions, however, do not require elucidation in the
context.
The restriction on providing religious instructions and freedom as to
attendance at religious instruction or religious worship in certain educational
institutions, envisaged under Article 28, appears to be pertinent to the
context in view of the fact that it imposes constructive restriction on
 59
‗propagation of religious belief or tenets‘ in educational institutions. It is the
constitutional imperative that no religious instructions shall be provided in
any educational institution wholly maintained out of State funds. Further,
Clause (3) of Article 28 confers freedom as to attendance at religious
instruction or religious worship in certain educational institutions. It clearly
mandates that no person attending any educational institution recognized by
the State or receiving aid out of the State funds shall be required to take part
in any religious instruction that may be imparted in such institution or to
attend any religious worship that may be conducted in such institution or in
any premises attached thereto unless such person or, if such person is a
minor, his guardian has given his consent thereto.
The rationale for imposing such a blanket ban on providing
religious instructions in educational institutions wholly maintained out of the
state fund is probably that India being a secular country, utilization of public
revenue for the purpose of imparting religious instructions, which may result
in conversion from one religion to another would not be in consonance with
its secular credentials. This is to ensure the religious neutrality of public
institutions wholly maintained out of the public revenue. Similarly, the
rationale for Clause (3), which confers freedom as to attendance at religious
instruction or religious worship in educational institutions recognized by the
State or receiving aid out of State funds, is that in such institutions, there is
every likelihood of exercising undue influence to convert pupils from one
religious faith to another. Further, any exercise of compulsion or undue
influence would result in infringement of ‗freedom of conscience‘ – the very
essence of religious freedom. Unlike Clause (1), Clause (3) does not impose
a blanket ban on providing religious instructions; it confers only freedom as
to attendance at religious instruction or religious worship. In other words,
there is no prohibition on imparting religious beliefs or tenets or conducting
rituals or ceremonies in institutions recognized by the State or receiving aid
 60
out of the State funds, but such institutions shall not compel pupils to be part
of it. Students can attend such instructions or rituals or ceremonies out of
their own will or, at the instance of their guardians in case of minors.
2. Limitations on the Freedom:

No right in an organized society can be absolute. So the freedom of

religion guaranteed, under the Indian Constitution, is. ‗Freedom of
conscience and right freely to profess, practice and propagate religion‘ has
been expressly made subject to: (i) Public order, morality and health; (ii)
Other fundamental rights (iii) any law, whether existing or future, providing
for regulation or restrictions of an economic, financial, political or other
secular activity which may be associated with religious practice, and (iv) any
law, whether existing or future, providing for social welfare and reform.
Some of these limitations require more elaboration in the context.
Public Order, Morality and Health:

Both individual freedom, under Article 25, and the freedom of

religious denominations, under Article 26, has been expressly made subject
to public order, morality and health in the Indian Constitution. The
expression ―public order‖ is of wide connotation signifying a state of
tranquility prevailing among the members of a political society as a result of
the internal regulations enforced by the government instituted by them. It
can be postulated that ‗public order‘ is synonymous with public peace, safety
and tranquility. It is the first and the most fundamental duty of every
Government to preserve order, since order is the condition precedent to all
civilization and advance human happiness. Having realized that it is in the
interest of liberty itself, that it should be restricted, the framers of the
Constitution have subordinated religious freedom to public order. Thus, the
freedom of conscience and right freely to profess, practice and propagate
religion, and freedom to manage religious affairs can be curtailed either in
 61

the interest or for the maintenance of public order. Therefore, it cannot be

predicted that freedom of religion can have no bearing whatever on the
maintenance of public order or that a law creating an offence relating to
religion cannot, under any circumstances, be said to have been enacted in the
interest of public order. The expression ‗Public order‘, here, refers to the
disorder of more gravity than those affecting mere ‗law and order‘.
However, the difference between ‗law and order‘ and ‗public order‘ is one of
degree and nothing else. At times, a mere problem of ‗law and order‘ may
become grave and cause ‗public disorder‘. This has been clearly pointed out
by the apex court in Golam Hussain Vs. Commissioner of Police (1974) 4
SCC 530 as follows:-
―A criminal act hitting a private target such as indecent assault of a
woman or slapping a neighbor or knocking down a pedestrian while
driving, may not shake up public order. But a drunk with a drawn
knife chasing a woman in a public street and all women running in
panic, a Hindu or Muslim in a crowded place at a time of communal
tension throwing a bomb at a personal enemy of the other religion and
the people, all scared, fleeing the area, a striking worker armed with a
dagger stabbing a blackleg during a bitter strike spreading terror –
these are invasions of public order although the motivation may be
against a particular private individual. The nature of the Act, the
circumstances of its commission, the impact on the people around and
such like factors constitutes the pathology of public disorder. One
cannot isolate the fact from its public setting or analyze its molecules
as in a laboratory but take its total effect on the flow of orderly life. It
may be a question of the degree and the quality of the activity, of the
sensitivity of the situation and the psychic response of the involved
people‖.

The apex court, in several cases, has upheld the curtailment of

freedom of religion guaranteed under Articles 25 and 26 on the ground of
‗public order‘. In addition, public morality and health are the two other
grounds to which freedom of religion is subjected under our Constitution.
The expression ‗public morality‘ is an abstract one that can only be
 62
described, not exhaustively, on the basis of societal standards but difficult to
define. However, it is the core moral order capable of transforming into
public morality, which has a nexus with the state affairs, which is the
concern of the law and, therefore, to which religious freedom is subjected.
The Commissioner of Police v. Acharya Jagadishwarananda Avadhuta
(2004) 12 SCC 770 is the classical example where the apex court upheld the
restriction on the ground of ‗public order and morality‘. In Church of God
(Full Gospel) in India v. K.K.R. Majestic Colony Welfare Association
(
2000) 7 SCC 282, the apex court upheld the restrictions on use of
loudspeaker for conducting religious prayers by holding that: ―activities that
disturb the peace in the name of religion cannot be permitted in a civilized
society as rights are closely related to duties. The rights of babies, children,
students, the aged and the mentally and physically infirm to be protected
from noise pollution, in the form of amplified broadcasts of prayers, music
or religious recitation, are required to be honored. More so as regular
exposure to noise leads to many kind of medical problems, including high
blood pressure, deafness and mental stress‖.
Other Fundamental Rights:

The religious freedom guaranteed under Article 25 of the Constitution

of India has been made subject to all other fundamental rights envisaged in
Part – III. By virtue of its subordination to all other fundamental rights, in
case of conflict between freedom of religion and any other fundamental
right/s, the former should always give way to the latter.
Thus, a person can exercise his religious freedom so long as it does
not come into conflict with the exercise of Fundamental Rights of others.
Insertion of the expression ―the other provisions of this part‖ in Article 25 is
understandable when we find the particular rights, which are taken care of in
this article, namely, the right to freedom of conscience and the right freely to
 63
profess, practice and propagate religion. Bearing in mind the overlapping
nature of the sensitive rights in Article 19 (1) (a) with reference to citizens
and in Article 25 (1) with reference to all persons the founders of the
Constitution left no room for doubt in expressly subjecting Article 25 (1) to
the other provisions of Part –III.
Further, Article 25 (1) guarantees freedom of religion to every person
and not to the followers of any one particular religion. A person can
properly enjoy it if he exercises his right in a manner commensurate with the
like freedom of persons following other religions. What is freedom for one is
freedom for others, in equal measure. Thus, in Rev. Stainislaus v. State of
Madhya Pradesh, the apex court ruled that the fundamental right to
propagate does not include right to convert another person to one‘s own
religion because if a person purposely undertakes to convert another person
to his religion, as distinguished from his effort to transmit or spread the
tenets of his religion, that would impinge on the ―freedom of conscience‖
guaranteed to all the citizens in the country alike.
Secular Activities:

The term ‗religion‘ has not been defined in the Constitution, and it is
a term, which is not susceptible of any precise definition. No doubt, religion
is a matter of faith. A religion, undoubtedly, has its basis in a system of
beliefs and doctrines, which are regarded by those who profess that religion
as conducive to their spiritual well being, but it is also something more than
merely doctrine or belief. A religion, as aforesaid, may not only lay down a
code of ethical rules for its followers to accept, but may also prescribe rituals
and observances, ceremonies and modes of worship which are regarded as
an integral part of that religion. Thus, the religious freedom guaranteed
under Article 25, as its language amplifies, assures to every person subject to
public order, health and morality, freedom not only to entertain his religious
 64

beliefs, as may be approved of by his judgment and conscience, but also to

exhibit his belief in such outwardly act as he thinks proper and to propagate
or disseminate his ideas for the edification of others. The protection under
Article 25 extends for rituals and observances, ceremonies and modes of
worship which are integral parts of religion and so to what really constitutes
an essential part of religion or religious practice has to be decided by the
courts with reference to the doctrine of a particular religion or practices
regarded as parts of religion. However, economic, financial, political or
other secular activities associated with religious practices of any particular
religion clearly falls outside the purview of the protective umbrella of
Article 25 of the Constitution. That means purely secular activities, which
may not be an essential and integral part of a religion, are not protected and
can be abrogated by legislation subject to other Fundamental Rights. The
management or administration of a temple; appointment of Priests or
Poojaris to Hindu temples; rendering of religious service by archaks, which
is separate from performance of the religious service which is an integral
part of the religion; management, administration and maintenance of Math,
safeguarding interest and fulfillment of the objects of Math ; management
of international cultural township of Auroville by Sri Aurobindo Society;
etc., have been considered to be secular activities associated with religious
practices.

Social Welfare and Reform:

Article 25 involves a separation between ‗religious‘ activities, on the

one hand, and ‗secular‘ and ‗social‘ activities, on the other. While the former
are protected the latter are not. Sub-clause (a) of Clause (2) of Article 25
reserves the right of the State to regulate or restrict any economic, financial,
political or other secular activities, which may be associated with religious
 65
practices and there is a further right given to the State by Sub- clause (b)
under which the State can legislate for social welfare and reform even
though by so doing it might interfere with religious practices. Social reform
measures are always permissible under our constitutional scheme and would
not be void on the ground of interfering with freedom of religion. Thus, the
Hindu Marriage Act, for instance, which introduces the principle of
monogamy for the Hindus, is undoubtedly a law providing for social welfare
and social reform.
However, by the phrase ―laws providing for social welfare and
reform‖ it was not intended to enable the legislature to ―reform‖ a religion
out of existence or identity. Article 25 (2) (a) having provided for legislation
dealing with ―economic, financial, political or secular activity, which may be
associated with religious practices‖, the succeeding clause proceeds to deal
with other activities of religious groups and these also must be those which
are associated with religion. Just as the activities referred to in Article 25 (2)
(a) are obviously not of the essence of the religion. Similarly, the saving in
Article 25 (2) (b) is not intended to cover the basic essentials of the creed of
a religion which is protected by Article 25 (1).
Further, by virtue of Article 25 (2) (b), the State can throw open
Hindu religious institutions of a public character to all sections of the
Hindus.
Thus, as a whole, the protective umbrella of Article 25 of the
Constitution does not cover economic, financial, political or other secular
activities associated with religion nor it prevents the State from bringing
about social welfare and reform. And even the essential religious beliefs,
convictions and practices, which may form an integral part of religion, are
also subject to public order, morality and health.
3. Whether „right to conversion‟ is envisaged under Article 25?
 66

One of the most controversial substantial questions associated with

freedom of religion for the last several decades in India is, whether ‗right to
freedom of conversion‘ is concomitant of ‗right to freedom of religion‘
envisaged in Article 25 of the Constitution.
Unlike some of the International Instruments, which expressly
recognize freedom of conversion, there is no express provision referring to
the ‗conversion‘ in the Constitution of India. Yet, the plain reading of Article
25 implies that the ‗freedom of conversion‘ emerges from ‗freedom of
conscience‘.

Article 25 of the Constitution guarantees, subject to limitations,

right to freedom of conscience and right freely to profess, practice and
propagate religion. In our constitutional scheme ‗freedom of conscience‘ is
an edifice on which the consequential right to profess, practice and
propagate religion has been built. ‗Freedom of conversion‘ emerges directly
from ‗freedom of conscience‘ and consequential ‗right to profess‘, but not
from ‗freedom to propagate‘.
By ‗freedom to propagate‘ one has a liberty, within limits, to
transmit or spread one‘s religion by exposition of its tenets or his own ideas
and convictions. Such, an exposition of religious tenets and ideas may
sometimes lead to conversion. But conversion as a matter of right does not
emerge from freedom to propagate. The reason is obvious because no one is
duty bound to convert oneself at the instance of other person. Not even to
attend religious instructions or propagations. Any compulsion to attend
religious instructions or to convert any person, against his own wishes,
violates, apart from other rights, freedom of conscience itself, which is the
basis of freedom of religion. Thus, no one can claims to have ‗right to
convert other‘ as a necessary corollary of ‗freedom to propagate‘ religion.
Freedom of propagation should always be exercised in a manner
 67
commensurate with the freedom of conscience of persons following other
religion. What is to be remembered and honoured is that the Article 25
guarantees freedom of religion to every person and not to the followers of
any one particular religion.
On the other hand, if a person by exercise of his ‗free conscience‘
chooses to convert himself to some other religious faith and starts professing
it by openly acknowledging it, the State cannot prevent him. To do so would
also amount to infringement of ‗freedom of conscience‘ and ‗right freely to
profess‘ religion.
Thus, though, Article 25 (1) of the Constitution of India implies
freedom of conversion from one religious faith to another by exercise of free
conscience or free will, the very idea that the right to conversion emerges
from freedom to propagate religion is a misconceived one. Any attempt to
endorse such an idea would amount to giving primacy to the rights of one
religious group over the other, which indeed is unsecular and undemocratic.
The apex court, when confronted with such a question, in Rev. Stainislaus v.
State of Madhya Pradesh, has observed:

―What Article 25 (1) grants is not the right to convert another person
to one‘s own religion by an exposition of its tenets. It has to be
remembered that Article 25 (1) guarantees ‗freedom of conscience‘
to every citizen, and not merely to the followers of one particular
religion, and that, in turn, postulates that there is no fundamental
right to convert another person to one‘s own religion because if a
person purposely undertakes the conversion of another person to his
religion, as distinguished from his effort to transmit or spread the
tenets of his religion, that would impinge on the ‗freedom of
conscience‘ guaranteed to all the citizens of the country alike‖.

The above said proposition of the apex court is in consonance with

UDHR and ICCPR, which recognize ‗freedom of conversion‘, to which
India is a party. Thus, the Constitution of India, too, recognizes ‗freedom of
conversion‘ as an individual right of a person to quit one religion and
 68

embrace another voluntarily. But, under our constitutional scheme, by no

stretch of imagination, the right to convert another can be derived.
Courtesy
A STUDY OF COMPATIBILITY OF ANTI-CONVERSION LAWS WITH RIGHT TO FREEDOM OF RELIGION IN INDIA
Conducted by:
THE INDIAN LAW INSTITUTE
(Deemed University) New Delhi.
 CHAPTER-VIII

ANTI- CONVERSION ACTS OF OTHER

STATES OF INDIA : ALONGWITH
COMPARATIVE STUDY
 69

CHAPTER - VIII
ANTI- CONVERSION ACTS OF VARIOUS
STATES OF INDIA ALONGWITH
COMPARATIVE STUDY

A: ANTI- CONVERSION ACTS OF VARIOUS STATES

OF INDIA
THE ARUNACHAL PRADESH FREEDOM
OF RELIGION ACT, 1978
(Act No. 4 of 1978)
(Received the assent of the President of India on 25th Oct, 1978)
AN
ACT

to provide for prohibition of conversion from one religious faith to

any other religious faith by use of force or inducement or by fraudulent means
and for matters connected therewith.

Be it enacted by the Legislative Assembly of Arunachal Pradesh in

the Twenty-ninth Year of the Republic of India as follows:-

1. Short title, extent and commencement.

(1) This act may be called the Arunachal Pradesh Freedom of Religion
Act, 1978.
(2) It extends to the whole of the Union Territory of Arunachal Pradesh.
(3) It shall come into force at once.

2. Definitions-. In this Act, unless the context otherwise requires,-

(a) ―Government‖ means the Government of the Union Territory of
Arunachal Pradesh;
 70

(b) ―Conversion‖ means renouncing one religious faith and adopting

another religious faith, and ―convert‖ shall be constructed accordingly;
(c) ―Indigenous faith‖ means such religions, beliefs and practices including
rites, rituals, festivals. Observances, performances, abstinence, customs
as have been found sanctioned, approved, performed by the indigenous
communities of Arunachal Pradesh from the time these communities
have been known and includes Buddhism as prevalent among the
Monpas, Membas, Sherdukpens, Khambas, Khamptis and Singphos,
Vaishnavism as practiced by Noctes, Akas and Nature worships,
including worships of Donyi-Polo, as prevalent among other indigenous
communities of Arunachal Pradesh;
(d) ―force‖ shall include show of force or a threat of injury any kind
including threat of divine displeasure or social ex-communication;
(e) ―fraud‖ shall include the misrepresentation or any other fraudulent
contrivance;
(f) ―inducement‖ shall include the offer of any gift or gratification,
either in cash or in kind and shall also include the grant of any
benefit, either pecuniary or otherwise;
(g) ―prescribed‖ means prescribed under the rules;
(h) ―religious faith‖ includes any indigenous faith.

3. Prohibition of forcible conversion.- No person shall convert or attempt

to convert, either directly or otherwise, any person from one religious faith
by the use of force or by inducement or by any fraudulent means nor shall
any persons abet any such conversion.

4. Punishment for contravention of the provisions section 3. - Any person

contravening the provisions contained in section 3, shall without prejudice to
any civil liability, be punishable with imprisonment to the extent of two years
and fine up to ten thousand rupees.

5. Intimation of conversion to the Deputy Commissioner and

punishment.- (1) Whoever converts any person from one religious faith to
any other religious faith either by performing himself the ceremony necessary
for such conversion as a religious priest or by taking part directly or indirectly
in such ceremony shall, within such period after the ceremony as may be
prescribed, send an intimation to the Deputy Commissioner of the District to
which the person converted belongs, of the fact of such conversion in such
form as may be prescribed.
 71

(2) If any person fails without sufficient cause to comply with the provisions
contained in sub-section (1) he shall be punished with imprisonment which
may extend to one year or with fine which may extend to one thousand rupees
or with both.

6. Offences cognizable.- An office under this Act shall be cognizable and

shall not be investigated by an officer below the rank of an Inspector of
Police.

7. Sanction for prosecution .- No prosecution for an offence under this Act

shall be instituted except by or with the previous sanction of the Deputy
Commissioner or such other authority, not below the rank of an Extra
Assistant Commissioner as may be authorized by him in this behalf.

8. Power to make rules. - The Government may make rules for the purpose
of carrying out the provisions of this Act.

CHHATTISGARH
Chhattisgarh Freedom of Religion (Amendment) Act, 2006 Act 18 of 2006

A bill to further amend the Chhattisgarh Dharma Swantantraya

Adhiniyam [ Freedom of Religion]Act, 1968 (No. 27 of 1968).

Be it enacted by the Chhattisgarh Legislature in the Fifty-Seventh year of

the Republic of India as follows:

1. Short title and Commencement

(1) This Act may be called the Chattisgarh Dharma Swantantraya (Amendment)
Adhiniyam, 2006.

(2) It shall come into force from the date of its publication in the Official
Gazette.

2. Amendment of section 2.

After sub-section (b) of Section-2 of the Chhattisgarh Dharma

 72

Swantantraya Adhiniyam, 1968 (No. 27 of 1968) (hereinafter referred to as the

Principal Act), the following proviso shall be added, namely:

―Provided that the return in ancestor‘s original religion or his own

original religion by any person shall not be construed as ‗conversion‘.‖

3. Amendment of Section 4.

In Section 4 of the Principal Act,-

(1) For the words ‗one year‘ the words ‗three years‘ and for the words ‗five
thousand‘ the words ‗twenty thousand‘ shall be substituted.
(2) In proviso for the words ‗two years‘ the words ‗four years‘ and for the
words ‗ten thousand‘ the words ‗twenty thousand‘ shall be substituted.
4. Amendment of Section 5.

For Section 5 of the Principal Act, the following section shall be

substituted, namely:-

5. Prior permission, contravention and punishment

(1) Whoever intends to convert any person from one religious faith to
another either by performing himself the ceremony necessary for such
conversion as a religious priest or by taking part directly or indirectly in
such ceremony, shall apply for permission at least thirty days before the
intended date of such conversion, to the District Magistrate in whose
jurisdiction the ceremony is intended to be performed, in such form, as
may be prescribed.

(2) The District Magistrate may after inquiry, by an order, permit or

refuse to permit any person to convert, any person, from one religious
faith to another and such permission shall be valid for two months from
the date of its order.

(3) Any person aggrieved by the order passed under Sub-section (2) may
appeal, within thirty days from the date of the order to the District Judge
whose decision shall be final.

(4) The person so permitted by the District Magistrate under the provision
of subsection (2) shall intimate within one month from date of the
ceremony to such District Magistrate, of the fact of such conversion, in
such form, as may be prescribed.
 73

(5) Whoever converts any person in contravention of the provisions of

sub-section (2) shall be punished with imprisonment for term which may
extend to three years and shall also be liable to fine which may extend to
twenty thousand rupees.

(6) Whoever, does anything in contravention of the provisions of sub-

section (4) shall be punished with imprisonment of either description for
a term which may extend to one year and also with fine which may
extend to ten thousand rupees.

5. Addition of New Sections 5-A, 5-B, 5-C

After Section 5 of the Principal Act, the following shall be added,

namely:
―5-A Punishment for attempt to commit offences Whoever attempts to
commit any offence punishable under this Act or to cause such offence to
be committed and in such attempt does any act towards the commission
of the offence shall be punished with the punishment provided for the
offence.

5-B Bar of Jurisdiction

No Civil Court shall entertain any suit or proceeding against any decision
made or order passed by any officer or authority under the Act or any rule
made thereunder.

5-C Protection of action taken in good faith No suit, prosecution or other

legal proceeding shall lie against the State Government or any officer of
the State Government or any other person exercising any powers or
discharging any functions or performing any duties under this Act, for
anything done in good faith or intended to be done under the Act or any
rule made thereunder.‖

6. Amendment of Section 6.

For Section 6 of the Principal Act, the following Section shall be

substituted, namely:

6. Offences to be cognizable

(1) Every offence punishable under this Act shall be cognizable;

 74

(2) No person accused of an offence punishable under this Act shall be

released on bail or on his own bond unless, the Public Prosecutor has
been given an opportunity to oppose the application for such release.

After incorporating the aforesaid amendment, the

CHHATTISGARH Act reads as under:--

Chhattisgarh Dharma Swantantraya Adhiniyam (Freedom of Religion

Act), 1968

(Act No. 27 of 1968)

(as amended by Act No. 18 of 2006)

An Act to provide for prohibition of conversion from one religion to

another by the use of force or allurement or by fraudulent means and for matters
incidental thereto.

Be it enacted by the Madhya Pradesh Legislature in the Nineteenth year

of the Republic of India as follows:

1. Short title, extent and commencement

(1) This Act may be called the Madhya Pradesh Dharma Swatantrya
Adhiniyam [Madhya Pradesh Freedom of Religion Act], 1968.

(2) It shall extend to the whole of the State of Madhya Pradesh.

(3) It shall come into force at once.

2. Definitions.- In this Act unless the context otherwise requires:

(a) ―allurement‖ means offer of any temptation in the form of

(i) any gift or gratification either in cash or kind;

(ii) grant of any material benefit, either momentary or otherwise;

 75

(b) ‗Conversion‘ means renouncing one religion and adopting another;

Provided that the return in ancestor‘s original religion or his

own original religion by any person shall not be construed as
‗Conversion‘.‖

(c) ‗Force‘ shall include a show of force or threat of injury of any kind
including threat of divine displeasure or social ex-communication;

(d) ‗fraud‘ shall include misrepresentation or any other fraudulent

contrivance;

(e) ‗minor‘ means a person under eighteen years of age.

3. Prohibition of forcible conversion.- No person shall convert or attempt to

convert, either directly or otherwise, any person from one religious faith to
another by the use force or by allurement or by any fraudulent means nor shall
any person abet any such conversion.

4. Punishment for contravention of the provisions of section 3.- Any person

contravening the provision contained in section 3 shall, without prejudice to any
civil liability be punishable with imprisonment which may extend to three years
or with fine which may extend to twenty thousand rupees or with both;

Provided that in case the offence is committed in respect of a minor, a

woman or a person belonging to the Schedules Castes or Scheduled Tribes the
punishment shall be imprisonment to the extent of four years and fine up to
twenty thousand rupees.

5. Prior permission, contravention and punishment.-

(1) Whoever intends to convert any person from one religious faith to
another either by performing himself the ceremony necessary for such
conversion as a religious priest or by taking part directly or indirectly in
such ceremony, shall apply for permission at least thirty days before the
intended date of such conversion, to the District
 76

Magistrate in whose jurisdiction the ceremony is intended to be

performed, in such form, as may be prescribed.

(2) The District Magistrate may after inquiry, by an order, permit or

refuse to permit any person to convert, any person, from one religious
faith to another and such permission shall be valid for two months from
the date of its order.

(3) Any person aggrieved by the order passed under Sub-section (2) may
appeal, within thirty days from the date of the order to the District Judge
whose decision shall be final.

(4) The person so permitted by the District Magistrate under the provision
of subsection (2) shall intimate within one month from date of the
ceremony to such District Magistrate, of the fact of such conversion, in
such form, as may be prescribed.

(5) Whoever converts any person in contravention of the provisions of

sub-section (2) shall be punished with imprisonment for term which may
extend to three years and shall also be liable to fine which may extend to
twenty thousand rupees.

(6) Whoever, does anything in contravention of the provisions of sub-

section (4) shall be punished with imprisonment of either description for
a term which may extend to one year and also with fine which may
extend to ten thousand rupees.

―5-A Punishment for attempt to commit offences: Whoever attempts to

commit any offence punishable under this Act or to cause such offence to
be committed and in such attempt does any act towards the commission
of the offence shall be punished with the punishment provided for the
offence.

5-B Bar of Jurisdiction:

No Civil Court shall entertain any suit or proceeding against any decision
made or order passed by any officer or authority under the Act or any rule
made thereunder.

5-C Protection of action taken in good faith: No suit, prosecution or

other legal proceeding shall lie against the State Government or any
officer of the State Government or any other person exercising
 77

any powers or discharging any functions or performing any duties under

this Act, for anything done in good faith or intended to be done under the
Act or any rule made thereunder.‖

6. Offences to be cognizable:

(1) Every offence punishable under this Act shall be cognizable;

(2) No person accused of an offence punishable under this Act shall be released
on bail or on his own bond unless, the Public Prosecutor has been given an
opportunity to oppose the application for such release.

7. Prosecution to be made with the sanction of District Magistrate.- No

prosecution for an offence under this Act shall be instituted except by, or with
the previous sanction of, the District Magistrate or such other authority, not
below the rank of a Sub-Divisional Officer, as may be authorized by him in that
behalf.

8. Power to make rules.- The State Government may make rules for the
purpose of carrying out the provision of this Act.

------------------------------
 78

GUJARAT ACT NO. 22 OF 2003

(First published after having received the assent of the Governor in the
“Gujarat Government Gazette” on the 8th April, 2003)

It is hereby enacted in the Fifty-fourth Year of the Republic of India as

follows:-

1. Short title and commencement. (1) This Act may be called the Gujarat
Freedom of Religion Act, 2003.
(2) It shall come into force on such date as the State Government may, by
notification in the Official Gazette, appoint.

2. Definitions. In this Act, unless the context otherwise requires,-

(a) “allurement” means offer of any temptation in the form of-
(i) any gift or gratification, either in cash or kind;
(ii) grant of any material benefit, either monetary or otherwise;

(b) “convert” means to make one person to renounce one religion and
adopt another religion;
(c) “force” includes a show of force or a threat of injury of any kind
including threat of divine displeasure or social ex-communication;
(d)“fraudulent means” includes misrepresentation or any other
fraudulent contrivance;
(e) “minor” means a person under eighteen years of age.

3. Prohibition of forcible conversion. No person shall convert or attempt to

convert, either directly or otherwise, any person from one religion to another by
use of force or by allurement or by any fraudulent means nor shall any person
abet such conversion.
4. Punishment for contravention of provisions of section 3. Whoever
contravenes the provision of section 3 shall, without prejudice to any civil
liability, be punished with imprisonment for a term, which may extend to three
years and also be liable to fine, which may extend to rupees fifty thousand:

Provided that whoever contravenes the provisions of section 3 in respect

of a minor, a women or a person belonging to Scheduled Caste or Schedule
Tribe shall be punished with imprisonment for a term which may
 79

extend to four years and also be liable to fine which may extend to rupees one
lakh.

5. Prior permission to be taken from District Magistrate with respect to

conversion. (1) Whoever converts any person from one religion to another
either by performing any ceremony by himself for such conversion as a religious
priest or takes part directly or indirectly in such ceremony shall take prior
permission for such proposed conversion from the District Magistrate concerned
by applying in such form as may be prescribed by rules.

(2) The person who is converted shall send an intimation to the District
Magistrate of the District concerned in which the ceremony has taken place of
the fact of such conversion within such period and in such form as may be
prescribed by rules.

(3) Whoever fails, without sufficient cause, to comply with the provisions of
sub-sections (1) and (2) shall be punished with imprisonment for a term, which
may extend to one year or with fine which may extend to rupees one thousand or
with both.

6. Prosecution to be made with the sanction of District Magistrate. No

prosecution for an offence under this Act shall be instituted except by or with the
previous sanction of the District Magistrate or such other authority not below the
rank of a Sub-Divisional Magistrate as may be authorised by him in that behalf.

7. Offence to be cognizable. An offence under this Act will be cognizable

and shall not be investigated by an officer below the rank of a Police Inspector.

8. Power to make rules. (1) The State Government may, by notification in the
Official Gazette, make rules for carrying out the provisions of this Act.

(2) All rules made under this section shall be laid for not less than thirty days
before the State Legislature as soon as may be after they are made, and shall be
subject to rescission by the State Legislature or to such modifications as the
State Legislature may make during the session in which they are so laid or the
session immediately following.
 80

(3) Any rescission or modification so made by the State Legislature shall be

published in the Official Gazette, and shall thereupon take effect.

…………
THE HIMACHAL PRADESH FREEDOM OF
RELIGION ACT, 2006
(ACT NO. 5 OF 2007)
(Now stands repealed and New Act of 2019 has been enacted)

An Act to provide for prohibition of conversion from one religion to

another by the use of force or inducement or by fraudulent means and for
matters connected therewith or incidental thereto.

BE it enacted by the Legislative Assembly of the State of Himachal Pradesh in

the Fifty-seventh Year of the republic of India, as follows:-

1. Short title.- This Act may be called the Himachal Pradesh Freedom of
Religion Act, 2006.

2. Definitions.- In this Act, unless the context otherwise requires-

(a) “conversion‖ means renouncing one religion and adopting
another;
(b) “force‖ shall include show of force or threat of injury or threat of
divine displeasure or social ex-communication;
(c)―fraud‖ shall include misrepresentation or any other fraudulent
contrivance;

(d) ―inducement‖ shall include the offer of any gift or gratification, either
in cash or in any kind or grant of any kind of benefit either pecuniary or
otherwise; and
(e) ―minor‖ means a person under eighteen years of age.

1. Prohibition of forcible conversion.- No person shall convert or attempt to

convert, either directly or otherwise, any person from one religion to another
by the use of force or by inducement or by any other fraudulent means nor
shall any person abet any such conversion:
Provided that any person who has been converted from one religion to
another, in contravention of the provisions of this section, shall be deemed not
to have been converted.
 81

4. Notice of intention.- (1) A person intending to covert from one religion to

another shall give prior notice of at least thirty days to the District Magistrate of
the district concerned of his intention to do so and the District Magistrate shall
get the matter enquired into by such agency as he may deem fit:

Provided that no notice shall be required if a person reverts back to his

original religion.

(2) Any person who fails.

to give prior notice, as required under sub-section (1), shall be punishable

with fine which may extend to one thousand rupees.

5. Punishment for contravention of the provision of section 3.- Any person

contravening the provisions contained in section 3 shall, without the prejudice
to any civil liability, be punishable with imprisonment of either description
which may extend to two years or fine which may extend to twenty five
thousand rupees or with both:

Provided that in case the offence is committed in respect of a minor, a

woman or a person belonging to Schedule Castes or Schedule Tribes, the
punishment of imprisonment may extend to three years and fine may extend to
fifty thousand rupees.

6. Offence to be Cognizable.- An offence under this Act shall be cognizable

and shall not be investigated by an officer below the Rank of Inspector of
Police.

7. Prosecution to be made with the sanction of District Magistrate.-No

Prosecution for an offence under this Act shall be made without the sanction of
the District Magistrate or such other authority, not below the rank of a Sub-
Divisional Officer, as may be authorized by him in that behalf.

8. Power to make rules.- (1) The State Government may, by notification in the
Official Gazette, make rules to carry out the provisions of this Act.

(2) Every rule made under this Act shall be laid, as soon as may be after it
is made, before the Legislative Assembly, while it is in session for a total period
of ten days, which may be comprised in one session or in two
 82

or more successive sessions, and if, before expiry of the session in which it is so
laid or the successive sessions aforesaid, the Legislative Assembly agrees in
making any modification in the rule or agrees that the rules should not be made,
the rule shall, thereafter have effect only in such modified form or be of no
effect, as the case may be, so, however, that any such modification or
annulment shall be without prejudice to the validity of anything previously done
under that rule.

………..
 83

THE HIMACHAL PRADESH FREEDOM OF

RELIGION ACT, 2019
An

ACT

To re-enact the law to provide freedom of religion by prohibition of

conversion from one religion to another by misrepresentation, force, undue
influence, inducement or by any fraudulent means or by marriage and for
matters connected therewith and incidental thereto.

Be it enacted by the Legislative Assembly of Himachal Pradesh in the

Seventieth Year of the Republic of India as follows:-

1. Short title and commencement.- (1) This Act may be called the
Himachal Pradesh Freedom of Religion Act, 2019
(2) It shall come into force on such date as the State Government may, by
notification in the Rajpatra (e-Gazette), Himachal Pradesh, appoint.
2. Definitions.- In this Act, unless the context otherwise requires,-
(a) ―coercion‖ means compelling an individual to act against his will by
use of psychological pressure or physical force causing bodily injury
or threat thereof;
(b) ―conversion‖ means renouncing one religion and adopting another,
(c) ―fraudulent‖ means to do a thing with intent to defraud;
(d) ―force‖ includes a show of force or a threat of injury of any kind to
the person converted or sought to be converted or to any other person
or property including a threat of divine displeasure or social ex-
communication;
(e) ―Government or State Government‖ means the Government of
Himachal Pradesh;
(f) ―inducement‖ means and includes offer of any temptation in the form
of any gift or gratification or material benefit, either in cash or kind or
employment, free education in reputed school run by any religious
body, easy money, better lifestyle, divine pleasure or otherwise;
(g) ―minor‖ means a person under eighteen years of age;
 84

(h) ―prescribed‖ means prescribed by rules made under this act;

(i) ―religion‖ means any organized system of faith, belief, worship or
lifestyle, as prevailing in India or any part of it, and defined under any
law or custom for the time being in force;
(j) ―religious priest‖ means priest of any religion who performs
purification Sanskar or conversion ceremony of any religion and by
whatever name he is called such as pujari, pandit, mulla, maulvi,
father etc; and
(k) ―undue influence‖ means the unconscientious use by one person of his
power or influence over another in order to persuade the other to act in
accordance with the will of the person exercising such influence.
3. Prohibition of conversion from one religion to another by
misrepresentation, force, fraud, undue influence, coercion, inducement or
marriage.- No person shall convert or attempt to convert, either directly or
otherwise, any other person from one religion to another by use of
misrepresentation, force, undue influence, coercion, inducement or by any
fraudulent means or by marriage, nor shall any person abet or conspire such
conversion;
Provided that, if any person re-converts to his parent religion, it shall not
be deemed to be a conversion under this Act.

4. Punishment for contravention of provisions of section 3.- Whoever

contravenes the provisions of section 3 shall, without prejudice to any civil
liability, be punished with imprisonment for a term, which shall not be less than
one year but which may extend to five years and shall also be liable to pay fine.

Provided that whoever contravenes the provisions of section 3 in respect

of a minor, a woman or a person belonging to the Scheduled Caste or Scheduled
Tribe shall be punished with imprisonment for a tem which shall also be liable
to pay fine.

5. Marriages done for sole purpose of conversion to be declared null and

void.- Any marriage which was done for the sole purpose of conversion by a
person of one religion with a person of another religion either by converting
himself before or after marriage or by converting the other person before or
after marriage may be declared null and void by the Family Court on a petition
presented by either party thereto.

6. Court to which petition shall be presented.- Every petition under section 5

shall be presented to the Family Court or where Family Court is
 85

not established, the Court within the local limits of whose ordinary original civil
jurisdiction,-

(i) The marriage was solemnized; or

(ii) The respondent, at the time of the presentation of the petition,
resides; or
(iii) The parties to the marriage last resided together ; or
(iv) In case the wife is the petitioner, where she is residing on the date
of presentation of the petition.

7. Declaration before conversion of religion and pre report about

purification Sanskar.- (1) One who desires to be converted to other religion,
shall give a declaration at least one month in advance, on the proforma as may
be prescribed, to the District Magistrate or the Executive Magistrate specially
authorized by the District Magistrate, of his intention, to convert his religion on
his own volition or free consent and without any force, coercion, undue
influence, inducement or fraudulent means;

Provided that no notice shall be required if a person re-converts to his

parent religion.

(2) The religious priest, who performs purification Sanskar or

conversion ceremony for converting any person of one religion to another
religion, shall give one month's advance notice of such Sanskar or conversion
ceremony, on the proforma as may be prescribed, to the District Magistrate or
any other officer appointed for that purpose by the District Magistrate of the
district where such ceremony is proposed to be performed.

(3) The District Magistrate, after receiving the information under sub-
section(1) and (2), shall conduct an inquiry through police or such agency as the
deems fit, with regard to intention, purpose and cause of proposed conversion.

4) Contravention of the sub-section (1) or sub-section(2) shall have

the effect of rendering the said conversion, illegal and void.

(5) Whoever contravenes the provisions of sub-section (1) shall be

punished with imprisonment for a term which shall not be less than three
months, but may extend to one year and shall also be liable to pay fine.
 86

(6) Whoever contravenes the provisions of sub-section (2) shall be

punished with imprisonment for a term which shall not be less than six months,
but may extend to two years and shall also be liable to pay fine.

8. Prosecution to be launched with the prior sanction. No prosecution for an

offence under section 7 shall be instituted by any person except by or with the
previous sanction of the District Magistrate or such other authority not below
the rank of a Sub-Divisional Magistrate, as may be authorized by the District
Magistrate in this behalf.

9. Punishment for violation of provisions of the Act by an institution or

organization.- If any institution or organization violates the provisions of this
Act, the person or persons in charge of the affairs of the organization or
institution, as the case may be, shall be subject to the punishment as provided
under section 4 and the registration of such organization or institution under any
law for the time being in force may be cancelled after giving a reasonable
opportunity of being heard.

10. Prohibition on accepting donation of contribution-Notwithstanding

anything contained in any other law for the time being in force, no person or
organization violating the provisions of this Act shall be allowed to accept any
donation or contribution of any kind from within or outside the country.

11. Parties to offence- When an offence is committed under this Act, -

(i) every person who actually does the act which constituted the offence;

(ii) every person who does or omits to do any act enabling or aiding
another person to commit the offence;

(iii) every person who aids or abets another person in commission of the
offence; and

(iv) every person who counsels or causes any other person to commit the
offence

shall be deemed to have taken part in the commission of such offence and be
guilty thereof and shall be charged as if he had himself committed the offence.
 87

12. Burden of Proof- The burden of proof as to whether a religious conversion

was not effected through misrepresentation, force, undue influence, coercion,
inducement or by any fraudulent means or by marriage lies on the person so
converted and, where such conversion has been facilitated by any person, on such
other person.

13. Offences to be cognizable and non bailable. Notwithstanding anything

contained in the Code of Criminal Procedure, 1973, every offence committed
under this Act shall be cognizable and non-bailable.

14. Power to remove difficulties- (1) If any difficulty arises in giving effect to
the provisions of this Act, the Government may, by order published in the
Rajpatra (e-Gazette), Himachal Pradesh, make provisions, not inconsistent with
the provisions of this Act, as appear to it to be necessary or expedient the purpose
of for removing such difficulty;

Provided that no such order shall be made after the expiry of a period of
two years from the date of commencement of this Act.

(2) Every order made under this section shall, as soon as may be after it is
made, be laid before the State Legislative Assembly.

15. Power to make rule. (1) The Government may, by notification in the
Rajpatra (e-Gazette), Himachal Pradesh, make rules for carrying out the purposes
of this Act.

(2) Every rule made under this Act, shall be laid, as soon as may be after it is
made, before the Legislative Assembly white it is in session for a total period of
not less than tem days which may be comprised in one session or in two or more
successive sessions, and if, before the expiry of the session in which it is so laid
or the session immediately following, the Assembly makes any modification in
the rule or decides that the rule should not be made, the rule shall, thereafter, have
effect only in such modified form or be of no effect, as the case may be, so
however, that any such modification or annulment shall be without prejudice to
the validity of anything previously done under that rule.

16. Repeal and savings (1) The Himachal Pradesh Freedom of Religion Act,
2006 is hereby repealed.
 88

(2) Notwithstanding such repeal, any action taken or anything done under the Act
so repealed shall be deemed to have been done or taken under the corresponding
provisions of this Act.

**********************************************************

Jharkhand Freedom of Religion Act, 2017

(Jharkhand Act No. 17, 2017)
An Act to provide for prohibition of conversion from one religion to another by
the use of force or allurement or by fraudulent means and for matters incidental
thereto.

Be it enacted by the Jharkhand Legislature in the Sixty Eight year of the

Republic of India as follows:

1. Short title, extent and commencement.

(1) This Act may be called the Jharkhand Freedom of Religion Act,
2017
(2) It shall extent to the whole of the State of Jharkhand.
(3) It shall come into force from the date of its issuance.
2. Definitions.
In this Act unless the context otherwise requires;
(a) ―allurement‖ means offer of any temptation in the form of
(i) any gift or gratification either in cash or kind;
(ii) grant of any material benefit, either monetary or otherwise;
(b) ―Conversion‖ means renouncing one religion and adopting another;
(c) ―Convert‖ means to make one person to renounce one religion and adopt
another religion;
(d) ―Force‖ shall include a show of force or threat of injury of any kind
including threat of divine displeasure or social ex-communication.
(e) ―Fraud‖ shall include misrepresentation or any other fraudulent
contrivance‖
(f) ―Indigenous faith‖ means such religions, belief and practices including
rites, rituals, festivals, observance, performances, abstinence, customs as
have been found sanctioned, approved, performed by the Scheduled Tribe
communities of Jharkhand from the time these communities have been
known.
(g) ―minor‖ means a person under eighteen years of age.
 89

(h) ―religious faith‖ means faith related to religion, which also includes
indigenous faith.

3. Prohibition of forcible conversion.

No person shall convert or attempt to convert, either directly or
otherwise, any person from one religion/religious faith to another by the use of
force or by allurement or by any fraudulent means, nor shall any person abet
any such conversion.

4. Punishment for contravention of the provision of section 3.

Any person contravening the provision contained in section 3 shall,
without prejudice to any civil liability be punishable with imprisonment which
may extend to three years or with fine which may extent to fifty thousand
rupees or with both;
Provided that in case the offence is committed in respect of a minor, a
woman or a person belonging to the Schedules Castes or Scheduled Tribes, the
punishment shall be imprisonment to the extent of four Years and fine up to one
hundred thousand rupees (one lakh rupees);

5. Prior permission for conversion.

(1) Whoever converts any person from one religion/religious faith to
another, either by performing any ceremony by himself for such
conversion as a religious priest or takes part directly in such ceremony
shall take prior permission for such proposed conversion from the District
Magistrate concerned by applying in such form as may be prescribed by
rules.
(2) The person who is converted shall send intimation to the District
Magistrate of the District concerned in which the ceremony has taken
place of the fact of such conversion within such period and in such form
as may be prescribed by rules.
(3) Whoever fails without sufficient cause, to comply with the provisions of
sub-section (1) and (2) shall be punished with imprisonment for a term
which may extend to one year or with fine which may extend to rupees
five thousand or with both.

6. Offence to be cognizable.
An offence under this Act shall be cognizable and non bailable. Such
cases shall not be investigated by an officer below the rank of an Inspector of
Police.
 90

7. Prosecution Sanction:-
No prosecution for an offence under this Act shall be instituted except by,
or with the previous sanction of the District Magistrate or such other Authority,
not below the rank of a Sub-Divisional Officer, as may be authorized by him in
that behalf.

1. Power to make rules:-

2. The State Government may make rules for the purpose of carrying out the
provisions of this Act.

**************

Madhya Pradesh Freedom of Religion Act,

1968
Act 27 of 1968

An Act to provide for prohibition of conversion from one religion to another by

the use of force or allurement or by fraudulent means and for matters incidental
thereto.

Be it enacted by the Madhya Pradesh Legislature in the Nineteenth year of the

Republic of India as follows:

1. Short title, extent and commencement

(1) This Act may be called the Madhya Pradesh Dharma Swatantrya
Adhiniyam [Madhya Pradesh Freedom of Religion Act], 1968.
(2) It shall extend to the whole of the State of Madhya Pradesh.
(3) It shall come into force at once.

2. Definitions.- In this Act unless the context otherwise requires:

(a) ―allurement‖ means offer of any temptation in the form of
(i) any gift or gratification either in cash or kind;
(ii) grant of any material benefit, either momentary or otherwise;
(c) ‗Conversion‘ means renouncing one religion and adopting another;
 91

(c) ‗Force‘ shall include a show of force or threat of injury of any kind
including threat of divine displeasure or social ex-communication;
(d) ‗fraud‘ shall include misrepresentation or any other fraudulent
contrivance;
(e) ‗minor‘ means a person under eighteen years of age.

3. Prohibition of forcible conversion.- No person shall convert or attempt to

convert, either directly or otherwise, any person from one religious faith to
another by the use force or by allurement or by any fraudulent means nor shall
any person abet any such conversion.

4. Punishment for contravention of the provisions of section 3.- Any person

contravening the provision contained in section 3 shall, without prejudice to any
civil liability be punishable with imprisonment which may extend to one year or
with fine which may extend to five thousand rupees or with both;

Provided that in case the offence is committed in respect of a minor, a woman

or a person belonging to the Schedules Castes or Scheduled Tribes the
punishment shall be imprisonment to the extent of two years and fine up to ten
thousand rupees.

5. Intimation to be given to District Magistrate with respect to conversion.-

(1) Whoever converts any person from one religious faith to another
either by performing himself the ceremony necessary for such
conversion as a religious priest or by taking part directly or
indirectly in such ceremony shall, within such period after the
ceremony as may be prescribed, send an intimation to the District
Magistrate of the district in which the ceremony has taken place of
the fact of such conversion in such form as may be prescribed.
(2) If any person fails with sufficient cause to comply with the
provisions contained in sub-section (1), he shall be punishable with
imprisonment which may extend to one year or with fine which
may extend to one thousand rupees or with both.

6. Offence to be cognizable.- An offence under this Act shall be cognizable

and shall not be investigated by an officer below the rank of an Inspector of
Police.
 92

7. Prosecution to be made with the sanction of District Magistrate.- No

prosecution for an offence under this Act shall be instituted except by, or with
the previous sanction of, the District Magistrate or such other authority, not
below the rank of a Sub-Divisional Officer, as may be authorized by him in that
behalf.

8. Power to make rules.- The State Government may make rules for the
purpose of carrying out the provision of this Act.

………..

ORISSA ACT 2 OF 1968

THE ORISSA FREEDOM OF RELIGION ACT, 1967

[Received the assent of the Governor on the 9th January 1969, first published in
an extraordinary issue of the Orissa Gazette dated the 11th January 1968]

AN ACT TO PROVIDE FOR PROHIBITION OF CONVERSION FROM

ONE RELIGION TO ANOTHER BY THE USE OF FORCE OR
INDUCEMENT OR BY FRAUDULENT MEANS AND FOR MATTERS
INCIDENTAL THERETO

Be it enacted by the Legislature of the State of Orissa in the Eighteenth Year of

the Republic of India, as follows:-

3. Short title extent and, commencement.- (1) The Act may be called the
Orissa Freedom of Religion Act, 1967.
(2) It shall extend to the whole of the State of Orissa.
(3) It shall come into force at once.
4. Definitions.- In this Act unless the context otherwise requires-
(a) ―conversion‖ means renouncing one religion and adopting another;
(b) ―force‖ shall include a show of force or a threat of injury of any
kind including threat of divine displeasure or social ex-
communication;
 93

(c) ―fraud‖ shall include misrepresentation or any other fraudulent

contrivance;
(d) ―inducement‖ shall include the offer of any gift or gratification,
either in cash or in kind and shall also include the grant of any
benefit, either Pecuniary or otherwise;
(e) ―minor‖ means a person under eighteen years of age.

5. Prohibition of forcible conversion.- No person shall convert or attempt to

convert, either directly or otherwise, any person from one religious faith to
another by the use of force or by inducement or by any fraudulent means nor
shall any person abet any such conversion.

6. Punishment for contravention of the provisions of section 3.- Any person

contravening the provisions contained in section 3 shall, without prejudice to
any civil liability, be punishable with imprisonment or either description
which may extend to one year or with fine which may extend to five
thousand rupees or with both:

Provided that in case the offence is committed in respect of a minor, a

woman or a person belonging to the Scheduled Castes or Scheduled Tribes the
punishment shall be imprisonment to the extent of two Years and fine up to ten
thousand rupees.

7. Offence to be cognizable. - An offence under this Act shall be cognizable

and shall not be investigated by an officer below the rank of an Inspector of
Police.

8. Prosecution to be made with the sanction of District Magistrate. No

prosecution for an offence under this Act shall be made without the sanction
of the Magistrate of the District or such other authority, not below the rank of
a Sub divisional Officer, as may be authorised by him in that behalf.

9. Power to make rules.- The State Government may make rules for the
purpose of carrying out the provisions of this Act.

*************************
 94

Rajasthan Freedom of Religion Act, 2006

Act 12 of 2006

An Act to provide for the prohibition of conversion from one religion to

another by the use of force or allurement or by fraudulent means and for matters
incidental thereto.

Be it enacted by the Rajasthan State Legislature in the Fifty-seventh year of the

Republic of India, as follows:

1. Short title, extent and commencement.- (1) This Act may be called the
Rajasthan Dharma Swatatraya Act, 2006.
(2) It extends to the whole of the State of Rajasthan.
(3) It shall come into force at once.

2. Definitions.- In this Act, unless the context otherwise requires,

(a) ―Unlawful‖ means which is in contravention of the provision of

this Act;
(b) ―Allurement‖ means offer of any temptation in the form of:
(1) any gift or gratification, either in cash or kind;
(2) grant of any material benefit, either monetary or otherwise;
(c) ‖Conversion‖ means renouncing one's own religion and adopting
another; (Explanation: Own religion means [the] religion of one's
forefathers);
(d) ―Force‖ includes a show of force or a threat of injury of any kind
including threat of divine displeasure or social excommunication;
(e) ―Fraudulent‖ means and includes misrepresentation or any other
fraudulent contrivance.

3. Prohibition of conversion.- No person shall convert or attempt to convert,

either directly or otherwise, any person from one religion to another by use of
force or by allurement or by fraudulent means, nor shall any person abet any
such conversion.

4. Punishment for contravention of provisions of Section 3.- Whoever

contravenes the provisions of Section 3 shall, without prejudice to any other
civil or criminal liability, be punished with simple imprisonment for
 95

a term which shall not be less than two years but which may extend to five
years and shall also be liable to fine which may extend to fifty thousand rupees.

5. Offence to be cognizable and non-bailable.- Any offence under this Act

shall be cognizable and non-bailable and shall not be investigated by an officer
below the rank of Deputy Superintendent of Police.

6. Power to make rules.- (1) The State Government may make rules for the
purpose of carrying out the provisions of this Act.

(2) All rules made under this Act shall be laid, as soon as may be, after they
are so made, before the House of the State Legislature, while it is in
session, for a period of not less than fourteen days which may be
comprised in one session or in two successive session and if, before the
expiry of the session in which they are so laid or of the session
immediately following, the House of the State Legislature makes any
modification in any of such rules or resolves that any such rule should
not be made, such rule shall, thereafter, have effect only in such
modified form or be of no effect, as the case may be so however, that
any such modification or annulment shall be without prejudice to the
validity of anything previously done thereunder.

**************************************************

The Tamil Nadu Prohibition of Forcible

Conversion of Religion Act, 2002

Act 56 of 2002
An Act to provide-for prohibition of conversion from one religion to another
by the use of force or allurement or by fraudulent means and for matters
incidental thereto.

BE it enacted by the 1egislative Assembly of the State of Tamil

Nadu in the Fifty-third Year of the Republic of India as follows:-
 96

1. Short title and commencement.- ( 1 ) This Act may be called the

Tamil Nadu Prohibition of Forcible Conversion of Religion Act, 2002.

(2) It shall be deemed to have come into force on the 5th day of October
2002.

2. Definitions.- In this Act, unless the context otherwise requires, -

(a) "allurement" means offer of any temptation in the form of-

( i ) any gift or gratification either in cash or kind;
(ii) grant of any material benefit, either monetary or otherwise;

(b) "convert" means to make one person to renounce one religion

and adopt another religion;

(c),"force" includes a show of force or a threat of injury of any kind

including threat of divine displeasure or social excommunication;

(d)"fraudulent means" includes misrepresentation or any other fraudulent

contrivance;

(e) "minor" means a person under eighteen years of age.

3. Prohibition of forcible conversion. - No person shall convert or

attempt to convert, either directly or otherwise, any person from one
religion to another by use of force or by allurement or by any fraudulent
means nor shall any person abet any such conversion.

4. Punishment for contravention of provisions of section 3. - Whoever

contravenes the provisions of section 3 shall, without prejudice to any civil
liability, be punished with imprisonment for a term which may extend to
three years and also be liable to fine which may extend to fifty thousand
rupees:

Provided that whoever contravenes the provisions of section 3 in

respect of a minor, a woman or a person belonging to Scheduled Caste or
Scheduled Tribe shall be punished with imprisonment for a term which
may extend to four years and also be liable to fine which may extend to one
lakh rupees.
 97

5. Intimation to be given to District Magistrate with respect to

conversion.- (1) Whoever converts any person from one religion to another
either by performing any ceremony by himself for such conversion as a
religious priest or by taking part directly or indirectly in such ceremony
shall, within such period as may be prescribed, send an intimation to the
District Magistrate of the district in which the ceremony has taken place of
the fact of such conversion in such form as may be prescribed.

(2) Whoever fails, without sufficient cause, to comply with the

provisions of sub-section (1), shall be punished with imprisonment for a
term, which may extend to one year or with fine which may extend to one
thousand rupees or with both.

6. Prosecution to be made with the sanction of District Magistrate.- No

prosecution for an offence under this Act shall be instituted except by or
with the previous sanction of the District Magistrate or such other
authority, not below the rank of a District Revenue Officer, as may be
authorised by him in that behalf.

7. Power to make rules.- (1) The State Government may make rules for
the purpose of carrying out the provisions of this Act.

(2) Every rule made under this Act shall as soon as possible after it
is made be placed on the table of the Legislative Assemble, and if before
the expiry of the session in which it is so placed or the next session, the
Assembly makes any modification in any such rule or the Assembly
decides that the rule should no be made, the rule shall thereafter have effect
only in such modified form, or be of no effect, as the case may be, so,
however, that any such modification or annulment shall be without
prejudice to the validity of anything previously done under that rule.

8. Repeal and Saving.- (1) The Tamil Nadu Prohibition of Forcible

Conversion of Religion Ordinance, 2002 is hereby repealed.

(2) Notwithstanding such repeal anything done or any action taken

under the said Ordinance shall be deemed to have been done or taken under
this Act.

************************************************************
 98
Act No. 10 of 2006

An Act to repeal the Tamil Nadu Prohibition of

Forcible Conversion of Religion Act, 2002.

Be it enacted by the Legislative Assembly of the State of Tamil Nadu in

the Fifty-seventh Year of the Republic of India as follows:-

2. Short title and commencement. - (1) This Act may be called the Tamil
Nadu Prohibition of Forcible Conversion of Religion (Repeal) Act, 2006.
(2) It shall be deemed to have come into force on the 18th day of May 2004.

3. Repeal.- The Tamil Nadu Prohibition of Forcible Conversion of Religion

Act, 2002 is hereby repealed.

………..
 99

The Uttarakhand Freedom of Religion Act,

2018
(Uttarakhand Act No. 28 of 2018)

AN

ACT

to provide freedom of religion by prohibition of conversion from one

religion to another by misrepresentation, force, undue influence, coercion,
allurement or by any fraudulent means or by marriage and for the matters
incidental thereto.

Be it enacted by the Uttarakhand Legislative Assembly in the Sixty-ninth

Year of the Republic of India as follows:

1. Short title, extent and commencement. - (1) This Act may be called the
Uttarakhand Freedom of Religion Act, 2018.
(2) It shall extend to the whole of the State of Uttarakhand.
(3) It shall come into force on such date as the State Government may, by
notification in the Official Gazette, appoint.

2. Definitions. - In this Act, unless the context otherwise requires:

(a) "Allurement" means and includes offer of any temptation in the form of
any gift or gratification or material benefit, either in cash or kind or
employment, free education in reputed school run by any religious body,
easy money, better lifestyle, divine pleasure or otherwise;
(b) "Convincing for conversion" means to make one person agree to
renounce one's religion and adopt another religion;
(c) "Force" includes a show of force or a threat of injury of any kind to the
person converted or sought to be converted or to any other person or
property including a threat of divine displeasure or social
excommunication;
(d) "Fraudulent" includes misrepresentation of any kind or any other
fraudulent contrivance;
 100

(e) "Coercion" means compelling an individual to act against his will by the
use of psychological pressure or physical force causing bodily injury or
threat thereof;
(f) "Undue influence" means the unconscientious use by one person of his
power or influence over another in order to persuade the other to act in
accordance with the will of the person exercising such influence;
(g) "Conversion" means renouncing one religion and adopting another;
(h) "Minor" means a person under eighteen years of age;
(i) "Religion" means any organized system of faith, belief, worship or
lifestyle, as prevailing in India or any part of it, and defined under any law
or custom for the time being in force;
(j) "Religious priest" means priest of any religion who performs purification
Sanskar or conversion ceremony of any religion and by whatever name he
is called such as pujari, pandit, mulla, maulvi, father etc.;
(k)The words and expressions used in this Act and not defined in it but
defined in any other law for the time being in force in India or in State of
Uttarakhand shall have the same meaning assigned to them respectively.

3. Prohibition of conversion from one religion to another religion by

misrepresentation, force, fraud, undue influence, coercion, allurement or
marriage. - No person shall convert or attempt to convert, either directly or
otherwise, any other person from one religion to another by use of
misrepresentation, force, undue influence, coercion, allurement or by any
fraudulent means or by marriage nor shall any person abet or conspire such
conversion:
Provided that, if any person comes back to his ancestral religion, shall not
be deemed conversion under this Act.

4. Complaint to conversion of religion. - Any aggrieved person under Section

3 or his parents or brother-sister complaint to the Court of such conversion of
religion on the ground that it would contravene of the conditions specified in
Section 3:

Provided that, where aggrieved person or his brother or sister are under
the age of eighteen years, or are idiot or lunatic, or are from sickness or
infirmity unable to make a complaint some other person or by any other
 101

person who is related to him by blood, marriage or adoption, a complaint may

be made on his behalf with the leave of the Court.

5. Punishment for contravention of provisions of Section 3. - Whoever

contravenes the provisions of Section 3 shall, without prejudice to any civil
liability, be punished with imprisonment for a term, which shall not be less than
one year but which may extend to five years and shall also be liable to fine;

Provided that whoever contravenes the provisions of Section 3 in respect

of a minor, a woman or a person belonging to the Scheduled Caste or Scheduled
Tribe shall be punished with imprisonment for a term which shall not be less
than two years but which may extend to seven years and shall also be liable to
fine.

6. Marriages done for sole purpose of conversion to be declared null and

void. - Any marriage which was done for the sole purpose of conversion 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 null and 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.

7. Court to which petition shall be presented. - Every petition under Section 6

shall be presented to the Family Court or where Family Court is not established,
the Court having jurisdiction to try such case within the local limits-
(i) the marriage was solemnized; or
(ii) the respondent, at the time of the presentation of the petition,
resides; or
(iii) the parties to the marriage last resided together; or
(iv) in case the wife is the petitioner, where she is residing on the date of
presentation of the petition.

8. Declaration before conversion of religion and pre-report about

purification Sanskar. - (1) One who desires to convert his religion, shall give a
declaration at least one month in advance, in the prescribed proforma, to the
District Magistrate or the Executive Magistrate specially authorized by District
Magistrate that he wishes to convert his religion on
 102

his own and at his free consent and without any force, coercion, undue influence
or allurement.

(2) The religious priest, who performs purification Sanskar or conversion

ceremony for converting any person of one religion to another religion, shall
give one month's advance notice of such conversion, in the prescribed pro
forma, to the District Magistrate or any other officer appointed for that purpose
by the District Magistrate of the district where such ceremony is proposed to be
performed.

(3) The District Magistrate, after receiving the information under sub-sections
(1) and (2), shall get an enquiry conducted through police, with regard to real
intention, purpose and cause of that proposed religion conversion.

(4) Contravention of the sub-section (1) and/or sub-section (1) shall have the
effect of rendering the said conversion, illegal and void.

(5) Whoever contravenes the provisions of sub-section (1) shall be punished

with imprisonment for a term which shall not be less than three months, but
may extend to one year and shall also be liable to fine.

(6) Whoever contravenes the provisions of sub-section (2) shall be punished

with imprisonment for a term which shall not be less than six months, but may
extend to two year and shall also be liable to fine.

9. Prosecution to be made with the prior sanction. - No prosecution for an

offence under Section 8 shall be instituted by any person except by or with the
previous sanction of the District Magistrate or such other authority not below
the rank of a Sub-Divisional Magistrate, as may be authorized by him in this
behalf.

10. Punishment for violation of provisions of Act by an institution or

organisation. - If any institution or organization violates the provisions of this
Act, the person or persons in charge of the affairs of the organisation or
institution, as the case may be, shall be subject to punishment as provided under
Section 5 and the registration of the organization or institution under any law
for the time being in force may be cancelled after giving reasonable opportunity
of hearing.

11. Prohibition on accepting donation or contribution. - Notwithstanding

anything contained in any other law for the time being in
 103

force, no person or organisation violating the provisions of this Act shall be

allowed to accept any donation or contribution of any kind from within the
country or abroad.

12. Parties to offence. - When an offence is committed under this Act, each of
the following shall be deemed to have taken part in committing the offence and
to be guilty of the offence, and shall be charged as if he has actually committed
it, that is to say,-
(i) Every person who actually does the act which constitutes the offence;
(ii) Every person who does or omits to do any act for the purpose of enabling
or aiding another person to commit the offence;
(iii)Every person who aids or abets another person in committing the
offence;
(iv)Any person who counsels or procures any other person to commit the
offence.

13. Burden of proof. - The burden of proof as to whether a religious conversion

was not effected through misrepresentation, force, undue influence, coercion,
allurement or by any fraudulent means or by marriage lies on the person so
converted and, where such conversion has been facilitated by any person, on
such other person.

14. Offences to be non-bailable. - Notwithstanding anything contained in the

Code of Criminal Procedure, 1973, every offence committed under this Act
shall be non-bailable.

15. Power to remove difficulties. - (1) If any difficulty arises in giving effect to
the provisions of this Act, the Government of State of Uttarakhand may, by
order published in the Official Gazette, make such provisions, not inconsistent
with the provisions of this Act, as appear to it, to be necessary or expedient for
removing the difficulty:
Provided that no such order shall be made after the expiry of a period of
two years from the date of commencement of this Act.

(2) Every order made under this section shall, as soon as may be after it is made,
be laid before State Legislature.
 104

16. Power to make rules. - (1) The State Government may, by notification in
the Official Gazette, make Rules or Regulations for carrying out the provisions
of this Act.

(2) All Rules made under this section shall be laid before the State Legislature,
as soon as may be, after they are made, and shall be subject to such
modifications, as the State Legislature may make, during the session.
(3) Any modification so made under sub-section (2) shall be published in
the Official Gazette, and shall thereupon take effect.

………..

B: COMPARATIVE STUDY OF ACTS OF OTHER

STATES OF INDIA ALONGWITH COMMENTS:
1. Orissa Freedom of Religion Act, 1967:
The State of Orissa had enacted the Orissa Freedom of Religion Act,
1967 in the Eighteenth Year of the Republic of India in order to provide
legislative framework for prohibition of conversion from one religion to
another by the use of force or inducement or by fraudulent means and for
other incidental matters. The main object of the Act is to check such
activities, which, besides creating various maladjustments in social life,
also give, rise to problems of law and order. The Act extends to the whole
of the State of Orissa. It contains 7 sections in all.
In the definitional clause, the expressions ―conversion‖, ―fraud‖, and
―minor‖ have been defined precisely and are more or less unambiguous.
The definitions of the words ―force‖ and ―inducement‖ are, however,
considered to be ambiguous. It is said
 105

that they are open to wide interpretations, which render the legislation
liable to be misused. It is the use of the words ‗divine displeasure‘ in the
definition of ‗force‘, which was objected.
It is submitted that the expression ‗divine displeasure‘ is not novel.
There are provisions in the Indian Penal Code, 1860 as well as in
Representation of People Act, 1951, where this expression is used without
defining it. In a number of cases the apex court has considered the
expression to decide whether a particular act would amount to ‗divine
displeasure‘ or not. Though the Court has not given any precise definition
to the expression, each time it has decided the issue in the light of fact and
circumstances of the case. Such an approach of the Court has not been
subjected to any scrutiny. Nor has its interpretation led to any controversy.
Thus, it is not proper to say that the expression ‗divine displeasure‘ is very
vague only in this context so as to render the law liable to be abused. If it is
vague here, it is vague elsewhere also. Precision in the use of any
expression in statutes is always desirable, but mere lack of precision would
not automatically result in the abuse of law. It is more so when we have
independent judiciary to decide such issues. Further, it was also feared
that the definition of the expression ‗inducement‘ is very wide and that it
can also be used against charitable activities undertaken by religious
groups, which could be portrayed as a form of temptation to convert. The
definition of the term ‗inducement‘ under the Act is inclusive one. It has
two parts. Part one states, “it shall include the offer of any gift or
gratification, either in cash or in kind”. Part two states, “it shall include
the grant of any benefit, either pecuniary or otherwise”. There is reference
to ‗monetary benefit‘ twice in the definition both in the first part as well as
in the second part. It appears
 106

that the first part of the definition is sufficient to include all forms of
inducement, thus, the second part could have been avoided altogether. The
inclusion of second part particularly adds to the vagueness of the
definition. However, in view of Article 26 of the Constitution, which
empowers religious denominations to establish and maintain institutions
even for charitable purposes, the definition should be given very restrictive
meaning so as to exclude purely charitable activities carried on by any
religious denominations or any section thereof so long as their prime
motive is not conversion. Otherwise it would offend the spirit of Article 26
of the Constitution.
Section 3 is one of the cardinal provisions of Act. It clearly
mandates that no person shall convert or makes any attempt, either directly
or otherwise, to convert any person or abets any other person to convert
any person by use of force, inducement or through fraudulent means. Thus,
under Section 3 of the Act following acts by use of „force‟, „inducement‟
or by „fraud‟ are strictly prohibited:
(i) Conversion of any person;
(ii) Any direct or indirect attempt to convert any person;
(iii) Abetment to convert any person.

The definition appears to be very clear in view of the objective of

the statute, which is to prevent conversion, by use of force, fraud or
inducement. In the present form it stands the test of Article25.
Section 4 prescribes punishment for commission of any act
prohibited under Section 3. The provision, while laying down a sentencing
guideline by prescribing maximum punishment, has left sufficient space
for the Court to exercise discretion in awarding punishment. The
punishments prescribed under the provision are:
(i) Imprisonment of either description which may extend
to one year; or
 107

(ii) Fine which may extend to five thousand rupees; or

(iii) Both Imprisonment as well as fine subject to the
maximum limit prescribed.

The provision makes it very clear that the punishment prescribed

under the act for contravention of Section 3 is without prejudice to the civil
liability that could be imposed on such person for commission of any such
acts. Thus, the provision prescribes common punishment for conversion,
attempt to conversion as well as for abetment to conversion by use of
force, inducement or fraud without any distinction. Direct and indirect
attempt to convert and abetment to convert any person through any of the
above said means are equally punishable as conversion through such
means.
However, Proviso to Section 4 doubles the quantum of punishment
for any act of conversion or attempt to conversion or abetment to
conversion in respect of a minor, a woman or a person belonging to
Scheduled Castes and Scheduled Tribes. Further, the discretion of the
Court in awarding the punishment had been curtailed to some extent since
both imprisonment and fine are mandatory and not alternative. It appears
that the different punishments have been prescribed in case of commission
of an offence in respect of a minor, a woman or a person belonging to
Scheduled Castes and Scheduled Tribes keeping particularly in view the
vulnerability of such groups. Furthermore, such a special provision can
reasonably be justified in view of Article15(3)and(4) of the Constitution.
Thus, there is nothing in the provision, which makes it ultra vires the
Constitution. It may however be said that the commission of the act,
attempt and abetment of the act are treated alike for punishment.
Section 5 of the Act deals with two things. It declares the
 108

nature of offence under this Act as cognizable. Secondly, it mandates that

offence under the Act shall not be investigated by an officer below the
rank of an Inspector of Police.
This section signifies the importance the legislature attaches to
prohibition of conversion by use of force, fraud or allurement. It is treated
as a serious offence in as much as it has been prescribed that only a senior
officer is authorized to investigate.

Section 6 makes sanction of a District Magistrate or such other

authority, not below the rank of a Sub-divisional Officer, authorized by
him in that behalf, a condition precedent to prosecute the offence under the
Act. Section 6 is a legislative safeguard against the possible misuse or
abuse of the provisions of the Act.
Section 7 delegates the rule making power to the State Government.
The provision does not require the Rules so made to be laid before the
legislature for its consideration and approval. However, since the vires of
the Rules so made are always open to be challenged before the Court of
law, Section 7 cannot be said to be ultra vires the Constitution.

2. Madhya Pradesh Dharma Swantantraya Adhiniyum, 1968:

[As amended by the Madhya Pradesh Dharma Swatantrya
(Sanshodhan) Adhiniyum,2006]

Pursuant to the recommendations of Justice Niyogi Committee, the

State of Madhya Pradesh had enacted Madhya Pradesh Dharma
Swantantraya Adhiniyum, 1968 in the nineteenth year of Republic of
India. The Act was enacted subsequent to the enactment of similar
legislation in Orissa. The main object of the Act was similar to that of the
Orissa Freedom of Religion Act, 1967. The Act was amended in
 109

the year of 2006 by the Madhya Pradesh Dharma Swatantrya (Sanshodhan)

Vidheyak, 2006.

The definitions of the words ‗conversion‘, ‗force‘, ‗fraud‘ and

‗minor‘ under the Act are similar to the definitions in Orissa Act both in
substance as well as in form. However, in this Act, the term ‗allurement‘ is
used in place of ‗inducement‘. The definition of allurement given under the
Act is similar to that of the one given for inducement under the Orissa Act
except that the term‗material‘ isused in these definition,which is absent in
Orissa Act. However, it appears that the specific incorporation of the word
‗material‘ would not make difference in the scope and ambit of the
definition since the first part of the definition itself is wide enough to
include all forms of inducement or allurement.
It is submitted that for the reasons stated above for Section 2 of the
Orissa Act, the definition of allurement in this Act may also be modified to
bring it strictly in conformity with Article 26 of the Constitution.

Section 3 of the Act prohibits conversion, attempt to conversion and

abetment to conversion by use of force, allurement or by any fraudulent
means. This provision is fully identical, both in form as well as in
substance, with Section 3 of Orissa Act.

Section 4 of the Act is also fully identical, both in form and in

substance, with Section 4 of the Orissa Act. Thus, for the reasons stated
therein, the provision is said to be intra vires the Constitution.
The present section is substituted for the old section 5 of the 1968
Act. According to the old provision, any person who had
 110

performed the necessary ceremony of conversion as a Priest or had taken

part in such ceremony, either directly or indirectly, was under an
obligation to intimate the District Magistrate subsequent to such ceremony
within the time limit prescribed for the purpose. The failure, without
sufficient cause, to comply with it was made punishable with
imprisonment, which may extend to one year or with fine, which may
extend one thousand rupees or with both.
The present section, as amended in 2006, had introduced some
major changes into the Act. The Provision makes it mandatory for any
person intending to convert from his religion to any other religion or
religious faith to declare, before the District Magistrate or an Executive
Magistrate specifically authorized by the concerned District Magistrate,
that he intends to convert his religion on his own will. Such a declaration
has to be made prior to actual conversion. Any failure to make such prior
declaration is made punishable with fine, which may extend to one
thousand rupees.

Unlike the earlier provision where religious priest was expected to

intimate the District Magistrate subsequent to the conversion ceremony,
under the present Act, it is mandated that religious priest who performs the
conversion ceremony or takes part in it, either directly or indirectly, shall
intimate the date, time and place of the ceremony in which conversion
shall be made along with the name and address of the person to be
converted, to the concerned District Magistrate one month prior to the date
of such ceremony. Any failure to give such prior intimation with necessary
details is made punishable with imprisonment, which may extend to one
year or with fine, which may extend to five thousand rupees or with both.
Further Clause (3) of Section 5 imposed an obligation on the District
 111

Magistrate to inform the Superintendent of Police the details of the

proposed conversion, who shall in turn, ascertain through an officer in
charge of the concerned police station having jurisdiction over the local
area, any objections, if any, to such conversion and report back to the
District Magistrate concerned.
Thus, section 5 of the Act prescribes a regulatory mechanism to
ensure that no conversion by use of force, allurement or by any fraudulent
means takes place. Thus, even though the person who is intending to
convert his religion by exercise of his free conscience without any
compulsion or allurement is also expected to make prior declaration of the
same, the provision cannot be said to be ultra vires the Constitution. The
provision has not prohibited conversion, but it is regulating the same in
order to confirm that the person is converting himself out of his own will.
In the same way the obligation imposed on the priest to give intimation to
the District Magistrate is also justifiable.

Section 6 of the Act is identical, both in form and substance, with

Section 5 of the Orissa Act. Thus, for the reasons stated therein, Section 6
cannot be considered as ultra vires.
Clause (1) of Section 8 is identical with section 7 of the Orissa Act.
Clause (2) of the Act provides legislative scrutiny of the Rules made by the
State Government, which provision is not there under the Orissa Act.

Challenges to the Constitutionality of Orissa and Madhya

Pradesh Legislations

The Constitutional validity of the Orissa Freedom of Religion Act

1967 was challenged before the High Court of Orissa in Yulitha Hyde v.
State of Orissa AIR 1973 Orri 116 in the year 1969.
 112

The High court declared Orissa Freedom of Religion Act, 1967 as

ultra vires the Constitution.
Similarly, the constitutional validity of the Madhya Pradesh Dharma
Swantantraya Adhiniyum, 1968 was challenged before the High Court of
Madhya Pradesh, in Rev. Stainislaus v. State of Madhya Pradesh AIR 1975
MP 163, on similar grounds. But, contrary to the rulings of the Orissa High
Court in Yulitha Hyde, the High Court of Madhya Pradesh upheld the
constitutionality of Madhya Pradesh Dharma Swantantraya Adhiniyum,
1968.
Both the order of the Orissa High Court as well as Madhya Pradesh High
Court were subsequently challenged before the apex court. Since both the
appeals have raised common questions of law relating to interpretation of
Constitution, they were heard together by the apex court, in Rev.
Stainislaus v. State of Madhya Pradesh.

The apex court has finally upheld the constitutional validity of both
Orissa Freedom of Religion Act, 1967 and Madhya Pradesh Dharma
Swatantraya Adhiniyum, 1968.

2. The Chhattisgarh Dharma SwatantryaAdhiniyum 1968:

[As amended by the Chhattisgarh Dharma Swatantrya

(Sanshodhan) Adhiniyam , 2006 (Act 18 of 2006)]

After the formation of the State of Chhattisgarh, by virtue of the

power conferred under section 79 of the M.P. Reorganization Act, 2000,
the Government of Chhattisgarh had adopted Madhya Pradesh Dharma
Swantantraya Adhiniyum, 1968, which was in operation in the State of
Madhya Pradesh immediately before the formation of Chhattisgarh.
However, the said Act has now been amended by the Chhattisgarh Dharma
Swatantrya (Sanshodhan) Adhiniyam , 2006.
 113

As stated above, Section 2 of the M.P. Act was adopted without any
changes. However, in the year 2006, a proviso was added to Section 2 (b)
of the Act, which defines conversion. The Proviso states that the “return to
ancestor‟s original religion or his own original religion by any person
shall not be construed as„ conversion”.
The Proviso has excluded the cases of reconversion not only to
one‘s own religion but also to the religion of one‘s ancestor‘s. It appears
that the proviso seems to be inappropriate in the context of the legislation
in view of the object sought to be achieved by it. If the purpose of the Act
is to prohibit conversion from one religion to another by use of force or
allurement or by any fraudulent means, but not free conversion, what was
the need for excluding reconversion from the purview of the Act?
Such an express exclusion of reconversion from the purview of the
Act, would necessarily imply that reconversion by use of force, fraud or
allurement is not punishable under the provisions of the Act.
It appears that the legislatures have failed to appreciate that both
conversion and reconversion by use of force, fraud or allurement are
equally bad and infringes upon the ‗freedom of conscience‘ of a person so
converted/reconverted.

Provisions of Section 3 are identical, both in form and substance,

with Section 3 of both Orissa and Madhya Pradesh Acts.

Section 4 of the Act, which was adopted from the M.P. Act without
any changes, is now amended by Chhattisgarh Dharma Swantantraya
(Sanshodhan) Adhiniyam , 2006. The quantum of punishments prescribed
earlier have been largely increased. Though, it could possibly be argued
that punishments are on the higher side,
 114

the provision is not per se unconstitutional.

Under Section 5, an obligation has been imposed on the person
intending to convert another either by performing himself the necessary
ceremony as a religious priest or by taking part, directly or indirectly, in
such ceremony, to obtain one month prior permission from the concerned
District Magistrate. Under clause 2, the District Magistrate has been
authorized, after conducting an inquiry, either to grant or not to grant such
permission. In case of grant of such permission, that would be valid for a
period of two month within which the conversion ceremony should be
held. The order of the District Magistrate, either granting or refusing to
grant such permission, has been made appealable to the District Judge,
whose order shall be final in this regard.
Further, the person who has converted the other by virtue of the
permission so granted, should intimate the District Magistrate about the
fact of such conversion within one month from the date of such
conversion. Both conversion without obtaining the requisite permission
and failure to give subsequent intimation are made punishable.
Unlike the other Acts, which require either prior
permission/intimation or subsequent intimation from the person converting
another, this Act requires both. Thus, the regulatory mechanism appears to
be somewhat cumbersome. Though, a person had converted the another
with the requisite permission, non-intimation of the fact of conversion
subsequent to such conversion is made punishable with imprisonment of
either description for a term which may extend to one year and also with
fine which may extend to ten thousand rupees.
 115

Further, the District Magistrate has the discretion either to grant or

refuse to grant such permission. The Act has not laid down any guidelines
to exercise such discretion. However, the Order of District Magistrate has
been made appealable to District Judge, whose decision shall be final.
Nevertheless, the ‗finality clause‘ shall not be interpreted so as to exclude
the power of High Court and Supreme Court under Article 226 and
Articles 32 respectively.
Section 3 of the Act itself prohibits attempt to conversion by use of
force, fraud or allurement. Thus, it appears that provision of Section 5A is
capable of punishing only an attempt to convert another without requisite
permission contemplated under section 5 of the Act.
Section 5-B of the Act oust the Jurisdiction of the Civil Courts to
entertain any suit or proceedings against any decision or order made or
passed under the provisions of the Act or rules made under it. However,
under Section 5 (3), District Judge has got the power to hear an appeal
against the order passed by the District Magistrate under Section 5 (2). The
collective reading of both Section 5 (3) and Section 5-B of the Act give an
inference that, though no civil suit or proceedings can be instituted against
any decision or order passed under this Act, the District Judge, can
entertain appeal from such orders.

Section 5-C absolves the State Government, its officers and any
other persons exercising any powers or discharging any functions from
both civil and criminal liability for anything done or intended to be done,
in good faith, under the Act or the rules made under it. Similar provision is
not found in any other legislation on pari materia.
 116

Clause (1) of Section 6 is identical with the similar provisions in

other state Acts. Clause (2) propose to be incorporated by 2006
amendment Bill, provides that the bail shall not be granted ex parte
without hearing the public prosecutor. It clearly shows the seriousness
attached to the offences under this Act by the legislature.
Section 7 and 8 are identical with the similar provisions in other state
legislations.

3. Arunachal Pradesh Freedom of Religion Act, 1978:

The Union Territory of Arunachal Pradesh, as it then was, had enacted the
Arunachal Pradesh Freedom of Religion Act, 1978 in the twenty-ninth year
of Republic of India. The main object of the Act was similar to those
legislations discussed above. The Act contains seven sections in its
entirety.
The words ‗force‘, ‗fraud‘, and ‗inducement‘ have been defined in the
same way as they were defined in the Acts discussed above. The words
‗government‘ and ‗indigenous‘ have been defined in the Act, which were
not defined in the other Acts. The definition of the term ‗conversion‘ has,
however, been given a restrictive meaning when compared to other Acts.
Unlike the other Acts, where conversion has been defined as „renouncing
one religion and adopting another‟, the present Act defines it as
„renouncing an indigenous faith and adopting another faith or religion‟.
Thus, the definition restricts the application of the Act only to cases of
conversion from indigenous faith to any other faith or religion. The
conversions from any religion, other than indigenous faith, have been
specifically excluded from the purview of the Act. The term ‗indigenous‘
had been defined to mean and include such religions, belief and
practices… of the indigenous communities of Arunachal
 117

Pradesh from the time these communities have been known and includes
Buddhism and Vaishnavism as practiced by some of the indigenous
communities in Arunachal Pradesh. The definition specifically excludes
Islam and Christianity, etc., which are not indigenous by their origin.

If a person from non-indigenous faith has been converted by use of

force, fraud or allurement to any other religious or religious faith, the Act
does not penalize such conversions. Thus, the protective umbrella of the
Act to exercise free conscience in choice of religious faith has not been
extended to persons belonging to non-indigenous faith. Thus, it appears to
be in apparent conflict with Article 14 and 25 of the Constitution of India.

Though, it could possibly be contended that the people belonging to

non-indigenous groups are less in number in the State that cannot be a
valid ground to justify the denial of equal protection of law.

Section 3 of the Act is identical with Section 3 of all the Acts

discussed above except that it is only conversion from indigenous faith by
means of force, fraud and inducement that is prohibited under this Act
whereas other legislations prohibit conversions from any religion to
another by use of force, fraud and inducement. Its implications have been
discussed above under Section 2 itself.
Unlike the other Acts, Section 4 of this Act has not prescribed
different punishment for conversion of children, woman and other weaker
section of the society. The Act makes it mandatory to impose both
imprisonment as well as fine subject to maximum limits prescribed.
Imprisonment and fine are not alternative here.
The provision of Section 5 is identical with the unamended
 118

section 5 of the M.P. Act. 1968. The provision imposes an obligation on

the person who converts the other either by performing the necessary
ceremony himself as a religious priest or by taking part in such ceremony,
either directly or indirectly, to intimate the same with the necessary details
to the Deputy Commissioner of the District to which the person converted
belongs.
Though, the words „by taking part in such ceremony, either directly
or indirectly‟, appears to be vague, it has to be given restrictive
interpretation keeping in view the context of the provision so as not to
include all those who are taking part in such ceremony. It is only the
person ‗who converts another‘ either by performing the necessary
ceremony as a priest or takes part in it, directly or indirectly, who is
responsible to intimate the Deputy Commissioner.
Section 6, 7 and 8 of the Act are identical with Section 5, 6 and 7,
respectively, of the Orissa Act except that in place of ‗Sub-divisional
Commissioner‘ in Section 6 of Orissa Act, the ‗Extra Assistant
Commissioner‘ is used in Section 7 of the present Act.

4. The Tamil Nadu Prohibition of Forcible Conversion of Religion

Act, 2002:
[Now Repealed by the Tamil Nadu Prohibition of Forcible Conversion
of Religion (Repeal) Act, 2006]

The State of Tamil Nadu had initially issued the Tamil Nadu Prohibition of
Forcible Conversion of Religion Ordinance, 2002, which become an Act
after two months. The Act had, however, been repealed in the year of
2006.
At present, no such special law is in operation in the State of Tamil Nadu.
 119
5. The Gujarat Freedom of Religion Act, 2003:

The State of Gujarat had enacted the Gujarat Freedom of Religion

Act, 2003 with a view, inter alia, to maintain public order and to nip in the
bud the attempts by certain subversive forces to create social tension. Act
contains 8 sections in all. Section 1 deals with Short title and
commencement of the Act.
The definitional clause of the Act is identical with the definitions
given in other statutes discussed above.

The provision of section 3 is also identical with the similar

provisions of other legislations discussed above, both in form as well as in
substance.
The provision of section 4 is identical with the similar provisions of
other State laws, as far as the form is concerned. The quantum of
punishment prescribed under the Act is identical with the Tamil Nadu Act,
which is now repealed. Though, the amount of punishment prescribed
appears to be very high when compared to few other legislations, the
provision cannot be said to be ultra vires.
The regulatory mechanism prescribed in the section 5 is somewhat
different from the other legislations. Under Clause (1), it is specifically
mandated that the ‗prior permission‘ is required for a person who converts
any person from one religion to another whereas under M.P Act, the
person who converts another is required to give ‗prior intimation‘ to the
District Magistrate. Further in Arunachal Pradesh and Tamil Nadu
legislations, it is only subsequent intimation, which was contemplated.
Thus, no other legislations discussed above expressly require a prior
permission as has been required under this Act.
 120

Under Clause (2), the person who is converted is required to

intimate the District Magistrate subsequent to such conversion ceremony.
In Arunachal Pradesh and Tamil Nadu, no such intimation is required from
the person converted whereas in M.P, ‗prior declaration‘ that he is
converting out of his own will is made mandatory.
Clause (3) of the Act imposes a penalty for failure to comply with Clause
(1) and (2) of Section 5.
It is submitted that, though prior permission is required under the
present legislation for converting any person from one religion to another,
it cannot be said to be ultra vires the Constitution. Requirement of prior
permission is not a prohibition on free conversion. Though, the Act has not
laid down any guidelines for the District Magistrate to issue such
permission, it is implied that after satisfying himself that the conversion is
not through force, fraud or allurement, the District Magistrate has to grant
the required permission.
An important thing to be noticed is that, the Act has not prescribed
any time limit within which such permission has to be granted after receipt
of an application. It is desirable to prescribe the time limit to grant such
permission.
Section 6 and 7 of the Act are identical with similar provisions in
other statutes discussed above.
The provision of Section 8 delegates the rule making power to State
Government and requires that the rule so made shall be laid before the
State Legislature at least for thirty days for its consideration. Thereafter,
such rules shall take effect subject to such changes or modifications as
suggested by such legislatures. The
 121

provision, in substance, is similar to M.P and Tamil Nadu Acts.

6. Rajasthan Freedom of Religion Act ,2006:

The Rajasthan State Assembly has passed Freedom of Religion Act,

2006 in April 2006 with a view to prohibit conversion from one religion to
another by use of force, fraud or allurement. The object of the Act is
similar to other legislations on pari materia, which are discussed above.
The Act contains 6 sections in all. Section 1 deals with the short title,
extent and commencement of the Act.
The definition of the words ‗allurement‘, ‗force‘ and ‗fraudulent‘ are
similar to other legislations. The term ‗unlawful‘ has been defined to mean
any act in contravention of the provisions of the Act and it is clear.
However, the explanation added to the definition of the term ‗conversion‘
appears to be ambiguous.
Unlike the other Acts, where conversion has been defined to mean
renouncing one religion and adopting another, here renouncing one‘s own
religion and adopting another is not considered to be conversion. It is only
renouncing of one‘s forefathers religion adopting another, which is
considered to be conversion.
Suppose in a given (hypothetical) situation, if a person had already
renounced his forefather‘s religion and embraced another, and later on if
he had been forced to convert again to any other religion including his
forefathers religion, that is not considered to be conversion and the Act
does not cover such a situation.
It is submitted that the freedom of religion guaranteed under Indian
Constitution is an individual freedom. Every individual has got a freedom
to choose his own religion by exercise of his free conscience. He may, at
his own will, choose to profess or not to
 122

profess any religion also. Conversion by use of force, fraud or allurement from
one‘s own religion (in case if it is different from his forefather‘s religion) is
equally bad as conversion from one‘s forefather‘s religion (if he is professing
the same). The Act covers only the second situation but not the former. Thus, it
appears to be in conflict with Article 14 of the Constitution.

The provisions of Section 3 and 4 are different from the similar

provisions in the other Acts discussed above. Unlike the other Acts, the
provision prescribes both minimum as well as maximum period of
imprisonment leaving very less discretion for the court. The amount of fine
to be imposed by the Act is not an alternative to the imprisonment but it is
in addition to the imprisonment. Thus, the Act imposes the following
punishment:

(i) Simple imprisonment for a term which shall not be less than
two years but which may extend to five years; and
(ii) Fine which may extend to fifty thousand rupees.

The most shocking feature of Section 4 is that, the punishment

prescribed above is without prejudice to „any other civil or criminal
liability‟. Similar provisions in the other Acts have prescribed punishments
without prejudice to any other civil liability only. It is a well-established
principle of law that both civil and criminal liabilities are concurrent and
not alternative. But, there cannot be two criminal liabilities for the same
act.
That would amount to double jeopardy, therefore, infringes Article 20(2)
of the Constitution of India.
Unlike the other Acts, the offences under this Act are not only
cognizable but also non- bailable. Further, power of investigation has
 123

been conferred on a high-ranking officer, who shall not be below the rank
of a Deputy Superintendent of Police.

Like other Act, Section 6 delegates rule making power to the State
Government and a provision has been made for the legislative control of
such delegated legislative power.
7. The Himachal Pradesh Freedom of Religion Act, 2019:

The legislative Assembly of Himachal Pradesh had on December

29, 2006 passed the Bill to provide for prohibition of conversion from one
religion to another by the use of force, fraud or inducement. The object of
the Bill was similar to the other Acts discussed above. This Act has now
been repealed and a new Act The Himachal Pradesh Freedom of Religion
Act, 2019 has been passed. The reason for passing new bill is that after the
previous enactment the society has undergone many transitional changes.
Thus it was felt that it has become imperative and need of the hour to bring
in place a more effective and stringent law to put a check on the forcible
conversions and the conversions taking place by way of misrepresentation
and inducement etc. In the State of Himachal Pradesh, there is a rise in
conversions by fraudulent means. Therefore in order to check forcible
conversions of religion and to preserve the peaceful atmosphere thereof, it
was decided to bring an effective legislation in place of the Act.

Generally speaking, the tenor of the provisions of all the legislations

is same; aim seems to be the same. The reason deter for all the legislations
is the same. Difference is reflected in the reach. Some states have shown
more concern for the insulation of ‗indigenous religion‘ or ‗ancestor‘s
religion‘, thus, conversion from
 124

these religions is made cumbersome whereas reconversion to them made

easier. The expression ‗inducement‘ and ‗allurement‘ have been used
interchangeably. State of Jharkhand and Uttarakhand have also adopted
almost the same lines.
*********************************
 CHAPTER-IX
RECOMMENDATIONS OF LAW COMMISSION
OF INDIA WITH REGARD TO FREEDOM
OF RELIGION
 125

CHAPTER- IX

RECOMMENDATIONS OF LAW
COMMISSION OF INDIA WITH
REGARD TO FREEDOM OF
RELIGION

Report No. 235

December, 2010
 126

Justice P. V. Reddi New Delhi

(Former Judge, Supreme Court of India) (R) Tele: 2301 9465 (O)
Chairman 2338 4475 (R)
Law Commission of India Fax: 23792745

D. O. No. 6(3)/185/2010 – LC (LS)

December 27, 2010

Dear Hon‘ble Minister Dr. M. Veerappa Moily,

Sub: Conversion/reconversion to another religion –mode of proof

I am forwarding herewith the 235th Report of the Law Commission of

India on the above subject.

In a matrimonial appeal disposed of by the Kerala High Court, the

question was whether the wife who applied for divorce with mutual consent
under Section 13B of the Hindu Marriage Act, 1955 satisfactorily proved the
factum of conversion to Hindu religion. Inter alia, the Family Court held that
the applicant wife who was Christian by birth has not established that she had
converted herself to Hindu religion and there was no adequate proof of valid
solemnization of marriage as per Hindu customs and rites.

The High Court set aside the said findings and directed de novo
consideration of the issue after giving further opportunity to the applicant to
adduce appropriate evidence. The observations made in paragraph 15 of the
judgment are extracted in the opening paragraph of the enclosed Report. In
paragraph 16 of the judgment, the Registry was directed to forward a copy of
the judgment to the Law Commission of India, drawing the attention of the
Commission to paragraph 15.

Accordingly, the subject was taken up by the Law Commission of India

for consideration. After I assumed the office, the study was undertaken and a
consultation paper was circulated for getting the views of the public, while
expressing the prima facie view of the Law Commission. Certain
representations were received and the same have been adverted to at paragraph
15 of the Report. The Commission after due deliberations has come to the
conclusion that a declaration followed by confirmation before a registering
authority should not by itself be treated as proof of conversion
 127

and secondly it would be highly inappropriate to prescribe by way of legislation

the details of ceremonies and formalities to be gone through for conversion or
the manner in which conversion is to be proved in a Court of law. At the same
time, the Commission felt that the suggestion of the High Court should be
accepted to a limited extent so as to afford opportunity to those who would like
to have documentary evidence to substantiate the plea of conversion. The
Commission has made it clear that filing of declaration and recording thereof
should not be an indispensible proof of
conversion. It should only be made optional so that the converted person will
be enabled to have documentary proof to establish conversion/reconversion as
and when necessary. The Commission has also made it clear that the
documentary proof ought not to be considered as conclusive proof in as much as
the Court has necessarily to go into the question whether conversion was true,
and voluntary. Accordingly, recommendations are made at paragraph 16 and 17
of the Report. The Commission has expressed the view that in order to give
effect to the simple recommendation which does not conflict with any law in
force, statutory amendments to personal laws are not required. The Central
Government can issue appropriate instructions to the concerned authorities of
the UTs and the States.

With regards,

Yours sincerely,
(P.V. Reddi)

Dr. M. Veerappa Moily

Hon‘ble Minister for Law and Justice
Government of India
New Delhi – 110 001
 128

Re: Conversion/reconversion to another religion-mode of proof

Introduction: Observations of Kerala High Court

1. A Division Bench of Kerala High Court, in a matrimonial case in Betsy and

Sadanadan Vs Nil (Mat Appeal No. 339 of 2009) while dealing with a joint
application moved by the parties for dissolution of marriage under Section 13B
of the Hindu Marriage Act, 1955 examined the issue whether in the absence of
any specific procedure prescribed under pristine Hindu law, custom and statute
governing conversion, what the approach of the court should be and whether
there is a need for legislative intervention so as to make the law simple and user
- friendly. The High Court invited the attention of the Law Commission to the
observations made in paragraph 15 in order to address the need for legislation. It
was observed thus by Justice R. Basant in para 15 of the Judgment:

―We must, in this context, note that the stipulation in clause (c) of the
Explanation to Section 2(1) of the Hindu Marriage Act which shows that
a conversion or re-conversion to Hinduism can take place and the absence
of any stipulations of law or specific recognized practices to facilitate
such conversion is causing great difficulties to the parties. It should not
be impossible for the legislature to prescribe the methods by which a
person without any difficulty can effectuate such conversion. He should
not be left before courts to adduce exhaustive evidence to prove such
conversion. The law which recognizes such conversion must also be in a
position to prescribe how the parties, without the necessity to get
involved in unnecessary and time consuming litigations, can declare to
the world such conversion. Appropriate stipulations of law appear to be
necessary on this aspect in respect of conversions to and from all
religions. Simple statutory stipulation applicable for all religions of filing
of an affidavit of solemn declaration before a registering (statutory)
authority (who must give the declarant sufficient time to dispassionately
contemplate and confirm the declaration) and acceptance and recording
of such reconfirmed declaration by the authority in a register maintained
under the statute for that purpose after lapse of a stipulated period and
after calling for and hearing of objections if any of any interested party,
will make the procedure simple, user friendly and less cumbersome. Such
stipulations will save many a citizen like the petitioners herein of the
tedious obligation to get involved in time consuming and unnecessary
legal
 129

proceedings and litigation. Religious conversions may appear to many in

Indian mind-set to be unnecessary, puerile and negation of the very
concept of respect for both religions as also the followers of such
religion. But certainly, the freedom of faith guaranteed the Constitution
may not justify the negation of the right to pursue the chosen faith, by
conversion where necessary.‖

The High Court observed that easy identification of the religion of a

person in the event of a controversy does not appear to be possible even with
the help of the decided cases The Bench then observed in paragraph 13 as
under:

―But the courts cannot throw their hands up. Resolve they must, in the
event of controversy or conscientious and objective doubt (even when
parties raise no controversy) of the question whether there was
conversion or reconversion to Hinduism in a given case as asserted by the
litigant. We are certain that it must be possible for the court below with
the help of the above guidelines, on the basis of evidence presently
available and further evidence that may be adduced, to decide whether the
first appellant has become a Hindu by conversion under explanation (c) to
Section 2(1) of the Hindu Marriage Act. We may broadly indicate that an
assertion of the 1st appellant that she had, prior to her marriage, embraced
Hinduism will have to be given due weight. She can explain the assertion
and satisfy the court that the tests indicated above have been satisfied by
her in accepting conversion to Hinduism. She can prove the conduct of
having her marriage with the 2nd appellant solemnized in accordance
with Hindu religious rites and ceremonies. She can certainly show before
the court that she had, after such conversion, been worshipping Hindu
Gods. She can also adduce evidence to show that after such conversion,
she has held out to the world that she is a Hindu. All these circumstances,
if established, we find no reason why the uncontroverted assertion of the
appellant that the 1st appellant had become a Hindu by conversion before
marriage cannot be accepted and the marriage performed in accordance
with Hindu rites cannot be accepted as valid under the Hindu Marriage
Act by the Court below.‖

With the aforesaid observations, the High Court remanded the Case to the
lower court and allowed the parties to adduce further evidence and also to
amend their pleadings, if necessary.
 130

2. The Law Commission of India with a view to address the limited question
whether a particular mode of proof of conversion as suggested by
the High Court should be statutorily prescribed, having made a preliminary
study and recorded its prima facie view, invited the views of public on the
said issue. Certain suggestions have been received which would be adverted to
at the appropriate stage.

Freedom to profess and practise religion of one‟s choice

3. The freedom of conscience and the right to profess, practise and propagate
religion is enshrined in Art.25 of the Constitution. The equality of all religions
is expressly recognized by Art.25 thereby emphasizing the
cherished ideal of secularism. The expression ‗practice‘ is concerned primarily
with religious worship, ritual and observations. Propagating the
religion connotes the right to communicate the religious beliefs to others by
expounding the tenets of that religion. Of course, in the name of propagation, no
one has a right to convert a person to another religion under pressure or
inducement (vide Rev. Stainislaus v. State of Madhya Pradesh, AIR 1977 SC
908). Religious practices are as much a part of religion as religious faith or
doctrines (vide The Commissioner, Hindu Religious Endowments, Madras v.
Shri Lakshmindra Thiratha Swamiar of Shirur Mutt, AIR 1954 SC 282). The
fundamental right to freedom of conscience and the right to profess, practise
and propagate a religion is subject to the considerations of public order,
morality and health. Clause (2) of Art.25 preserves the power of the State to
make a law regulating any economic, financial, political or other secular activity
which may be associated with religious practice. Art.26 gives effect to the
concomitant right of the freedom to manage religious affairs and this right is
again subject to public order, morality and health. Articles 25 and 26
undoubtedly extend to rituals also and not confined to doctrine. It is well-settled
that the freedom of conscience and the right to profess a religion implies
freedom to change the religion as well. It is pertinent to mention that Art. 18 of
the Universal Declaration of Human Rights specifically lays down that the
freedom of conscience and religion includes freedom to change the religion or
belief. The right to freedom of conscience thus implies the individual right of a
person to renounce one‘s religion and embrace another voluntarily.

4. The change from one religion to another is primarily the consequence of

one‘s conviction that the religion in which he was born into has not measured
up to his expectations – spiritual or rational. The
 131

conversion may also be the consequence of the belief that another religion to
which he would like to embrace would better take care of his spiritual well-
being or otherwise accomplish his legitimate aspirations. At times it may be
hard to find any rational reason for conversion into another religion. The reason
for or propriety of conversion cannot be judged from the standards of rationality
or reasonableness.

5. Any discussion on conversion generates thoughts on religion and religious

faith. There is no precise definition of religion. ‗Religion‘, it is said, is a matter
of faith and belief in God is not essential to constitute religion. In Shirur Mutt
case (AIR 1954 SC 282), Mukherjee, J made the
following pertinent observations on religion and Hindu religion in particular:
―Religion is certainly a matter of faith with individuals or communities
and it is not necessarily theistic. There are well known religions in India
like Buddhism and Jainism which do not believe in God or in any
Intelligent First Cause. A religion undoubtedly has its basis in a system of
beliefs or doctrines which are regarded by those who profess that religion
as conducive to their spiritual well being, but it would not be correct to
say that religion is nothing else but a doctrine or belief. A religion may
not only lay down a code of ethical rules for its followers to accept, it
might prescribe rituals and observances, ceremonies and modes of
worship which are regarded as integral parts of religion and these forms
and observances might extend even to matters of food and dress.‖ ( para
18)

The saint and great philosopher Swami Vivekananda said:

―Religion as it is generally taught all over the world is said to be based
upon faith and belief and in most cases consists only of different sets of
theories and that is the reason why we find all religions quarrelling with
one another. These theories are again based upon faith and belief.‖

Sri M.N. Rao, former Chief Justice of H.P. High Court and presently
Chairman of National Commission for Backward Classes, after referring to
the above thoughts in his article on ‗Freedom of Religion and Right to
Conversion‘ (2003) made the following pertinent observations:

―Right to conversion connotes individual right of a person to quit one

religion and embrace another voluntarily. This kind of change from one
religion to another religion must necessarily be in
 132

consequence of one‘s conviction that the religion in which he was born

into has not measured up to his expectations, spiritual or rational.
Sometimes it may also be the result of losing faith in one‘s own religion
because of the rigidity of its tenets and practices. Sometimes one may
even lose total faith in the very concept of the existence of God and turn
to Atheism. A change of religion, a consequence of any of the above
reasons, falls within the ambit of the ―Right to Conversion‖.

Conversion –nature of and essentials to be proved:

6. Conversion like a marriage is a solemn act. Conversion from one religion

to another has far reaching consequences –social and legal. It affects succession,
marital status and also the right to seek elective office.
Divorce can be granted on the ground that the spouse has changed the religion
(vide Section 13(1)(ii) of the Hindu Marriage Act). `Upon conversion a person
may be governed by a different personal law. The right to contest in elections
from a constituency reserved from SCs / STs might be lost if the person who
has changed the religion happened to be a member of Scheduled Caste or Tribe.
Thus, the event of conversion is of critical importance from the point of view of
rights and disabilities of a convert.

7. Conversion cannot be treated as an event which can be achieved

through a mere declaration – oral or writing. At the same time, no particular
formalities or ceremonies are required according to the law declared by
Supreme Court. In fact, no such ceremonies are specifically prescribed in any
religious texts or precepts, though certain ceremonies like ‗Suddhi‘ (in the case
of Arya Samajists) and baptism (in the case of Christians) are gone through in
practice in some cases. Credible evidence of the intention to convert followed
by definite overt acts to give effect to that intention is necessary. The
subsequent conduct of the convertee is also important in reaching the
conclusion that a conversion in its true sense had taken place and there was
genuine conversion. The evidentiary facts which establish conversion have been
time and again stated by the Supreme Court, while observing that no specific
ritual or ceremony is required. Satisfactory evidence of conversion which has
always been insisted upon by the Courts is necessary especially when we hear
plethora of complaints of manipulated conversions for extraneous reasons or as
a result of undue pressures.
 133

Views of the Commission on the crucial question and relevant case law:

8. In the Commission‘s view, statutory prescription of procedure to

establish conversion or nature of proof required is neither desirable nor
practicable. Normally, a statute does not deal with the details which lie within
the realm of appreciation of evidence. Any such enumeration touching on the
quality of evidence to be adduced would result in more complications. A
declaration of the nature suggested by the High Court cannot be a substitute for
the tests laid down in decided cases for entering a
finding of conversion. In fact, it does not appear that the High Court intended to
say that the declaration followed by confirmation should be treated as a
conclusive evidence of conversion/reconversion. The High Court apparently
intended that the declaration followed by subsequent confirmation before the
registering authority would serve as weighty documentary evidence, thereby
minimizing the scope of controversy. There is another angle from which the
said observations of the High Court have to be viewed. The declaration and
registration thereof, if made the only mode of proof, many bona fide converts
may be handicapped in proving the conversion merely by reason of failure to
adhere to the procedure of registration. Moreover, a question may arise as to
what purpose will such a procedure serve, where there are objections from some
quarters – whether they be bona fide or mala fide? Should it be left to the
Registration Officer to deal with those objections and record a finding? Is
it proper for the Registration Officer to take a decision on the bona fides of
conversion on the basis of facts existing at that initial stage? These questions
defy a satisfactory answer if the declaration and confirmation should be treated
as the conclusive proof of conversion.

9. The High Court‘s observation that the proof in respect of conversion

should be simplified and credible documentary evidence could be made
available to those who are called upon to prove the factum of conversion is
not without merit. It stems from an anxiety to avoid prolonged litigation and
unnecessary controversies. But, the issue has to be viewed from a larger
perspective keeping in view the socio-economic conditions, the practical
difficulties in implementation and the spurious claims that are quite often
advanced. The Courts including Supreme Court have consistently held that the
law does not require any particular ceremony or ritual for conversion, but what
is necessary is a bona fide intention to convert to another religious faith
accompanied by conduct unequivocally expressing that intention. The
satisfaction of the Court on this aspect
 134

should necessarily be present and the filing of declaration of conversion before

a prescribed authority is one of the important aspects that aids the Court in
reaching such satisfaction, but that should not be the sole criterion.

10. It has been held in a number of decided cases including the pronouncements
of the Supreme Court that no particular formalities or religious rituals or
ceremonies are necessary to bring about conversion or reconversion. In the case
of Punjabrao v. Dr. D.P. Meshram and others (AIR 1965 SC 1179), it was
observed that the presence of a Bhikku on the occasion of a function held for
conversion of Hindu Harijans into Buddhism and compliance with particular
rituals is not necessary; so also, the signature of a converted person in a register
for conversion is not obligatory. In Perumal Nadar (dead) by Legal
Representative v. Ponnuswami Nadar (minor) (AIR 1971 SC 2352), the
principle was reiterated that no formal ceremony of purification or expiation is
necessary to effectuate conversion. So also in the case of S. Anbalagan v. B
Devararajan and others (AIR 1984 SC 411), the Supreme Court examined
the legal position in regard to caste status on conversion or re-conversion to
Hinduism and held that no particular ceremony was prescribed for reconversion
to Hinduism. The Karnataka High Court observed in Sujatha v. Jose Augustine
(II (1994) Divorce & Matrimonial Cases 442) that to be a Christian, one must
truly profess the Christian faith and the fact that one has undergone the
ceremony of baptism may not by itself be sufficient to hold that he or she has
become a Christian. The fundamental thing to be established before one can be
held to be Christian is that the person concerned truly believes in and professes
the Christian faith.

10.1 The test of conversion has been put thus by the Supreme Court in
Perumal Nadar v. Ponnuswami (supra).

‖A person may be a Hindu by birth or by conversion. A mere theoretical

allegiance to the Hindu faith by a person born in another faith does not
convert him into a Hindu, nor is a bare declaration that he is a Hindu
sufficient to convert him to Hinduism. But a bona fide intention to be
converted to the Hindu faith, accompanied by conduct unequivocally
expressing that intention may be sufficient evidence of conversion. No
formal ceremony of purification or expiation is necessary to effectuate
conversion‖. (para 6)
 135

The Supreme Court also observed ―in our judgment the finding of the
courts below that Annapazham was converted to Hinduism before her
marriage to Perumal is amply supported by evidence.‖

10.2 In Kailash Sonkar vs. Smt. Maya Devi (AIR 1984 SC 600) the Supreme
Court while dealing with a case of reconversion adopted a similar
approach, as seen from the following observations:

―In our opinion, the main test should be a genuine intention of the
reconvert to abjure his new religion and completely dissociate himself
from it. We must hasten to add here that this does not mean that the
reconversion should be only a ruse or a pretext or a cover to gain
mundane worldly benefits so that the reconversion becomes merely a
show for achieving a particular purpose whereas the real intention may be
shrouded in mystery. The reconvert must exhibit a clear and genuine
intention to go back to his old fold and adopt the customs and practices of
the said fold without any protest from members of his erstwhile caste.‖ (
para 30)

It was further clarified:

―In order to judge this factor, it is not necessary that there should be a
direct or conclusive proof of the expression of the views of the
community of the erstwhile caste and it would be sufficient compliance
of this condition if no exception or protest is lodged by the community
members, in which case the caste would revive on the reconversion of the
person to his old religion.‖ ( para 30)

10.3 We may also refer to the decision of Kerala High Court in Sapna
Jacob, Minor vs The State of Kerala & Ors (AIR 1993 Kerala 75) - K.G.
Balakrishnan, J. (as he then was) after referring to the various authorities,
observed:

―In order to prove that the petitioner was a member of the Hindu
community she must have established that there was a bona fide intention
to be converted to the Hindu faith accompanied by conduct or
unequivocally expressing that intention. It is true that no formal
ceremony of purification or expiation is necessary to effectuate
conversion. The petitioner is admittedly the daughter of a Jacobite
Christian. So by birth she is a Christian. A convert must embrace
Hinduism and follow the cultural system and tradition of that
 136

religion and should take the Hindu mode of life. It may be true that the
Court cannot test or gauge the sincerity of religious belief; or where there
is no question of the genuineness of a person‘s belief in a certain religion,
the court cannot measure its depth or determine
whether it is an intelligent conviction or ignorant and superficial fancy.
But a court can find the true intention of men lying behind their acts and
can certainly find from the circumstances of a case whether a pretended
conversion was really a means to some further end. In the instant case,
the petitioner‘s mother after marrying V.M. Jacob changed her name as
Uma Jacob. The petitioner‘s name is Sapna Jacob, admittedly a Christian
name. There is nothing in evidence to show that the petitioner ever led a
Hindu mode of life. The only ground on which the petitioner claims the
benefit of Scheduled Caste is that her mother is a Scheduled Caste.‖ (
para 6 )

10.4 Similarly, in Rakheya Bibi vs. Anil Kumar ILR (1948) Cal. 119), the
Calcutta High Court observed that it is open to the Court to go into the
question whether the conversion was a bona fide one or a mere pretence.
10.5 In recent case of M.Chandra vs. M. Thangamuthu and Another (2010)
9 SCC 712 the Supreme Court observed in para 42―it is a settled principle of
law that to prove a conversion from one religion to another, two elements need
to be satisfied. First, there has to be a conversion and second, acceptance into
the community to which the person converted.‖
10.6 In the case of Punjabrao Vs Dr. D.P. Meshram (Supra), a Constitution
Bench of Supreme Court interpreted the expression ‗profess‘ in clause 3 of the
Constitution (Scheduled Caste) Order 1950. The said
provision contemplates that a person to be treated as one belonging to the
Scheduled Caste, should profess either Hindu or Sikh religion. In that case,
the election of the first respondent to the Legislative Assembly was challenged
on the ground that he embraced Buddhism and had ceased to be
a member of Scheduled Caste. The Election Tribunal upheld the contention of
the appellant and set aside the election. However, the High Court held that
conversion of first respondent to Buddhism had not been established and
therefore, upheld his election. The Supreme Court allowed the appeal and
restored the order of the Election Tribunal holding that the first respondent had
ceased to be Hindu at the time of his nomination and
consequently ineligible to be a candidate for election from a constituency
reserved for members of Scheduled Castes. The Supreme Court explained as to
what is meant by professing a religion. The Supreme Court observed
after referring to the dictionary meanings of the word ‗profess‘, ―it seems to us
that the meaning ‗‖to declare one‘s belief in: as, to profess Christ, is
 137

one which we have to bear in mind while construing the aforesaid Order
because it is this which bears upon religious belief and consequently also upon a
change in religious belief. It would thus follow that a declaration of one‘s belief
must necessarily mean a declaration in such a way that would be known to those
whom it may interest. Therefore, if a public declaration is made by a person that
he has ceased to belong to his old religion and has
accepted another religion he will be taken as professing the other religion. In the
face of such an open declaration it would be idle to enquire further as to
whether the conversion to another religion was efficacious‖.( para 13)

In that case, the argument that no Bhikku had officiated at the function
and that respondent No. 1‘s name was not found in the register of conversion to
Buddhism and therefore, there was no satisfactory proof of
conversion was rejected. The decision shows that a declaration in public
renouncing his old religion and accepting another religion is an important
step in establishing the factum of conversion to another religion. Another
equally important step as laid down in Perumal‟s case is the bona fide intention
to convert demonstrated by his/her subsequent conduct. In Punjabrao‟s case,
the Supreme Court was concerned with the import of the expression ‗profess‘ in
the Presidential Order.

11. Though no particular formalities or ceremonies are required to be followed

for the purpose of conversion, credible evidence of intention to
convert followed by subsequent conduct of the convertee is necessary in
reaching the conclusion that there was genuine conversion. The convert
must embrace Hinduism (or another religion) and follow the cultural and
spiritual traditions and take to the mode of life of that religion.

12. It may be noted that in some states, viz., Gujarat, Madhya Pradesh,
Himachal Pradesh, Arunachal Pradesh etc., the Freedom of Religion Acts
were enacted. The provision thereof prohibits forcible conversion. i.e., by
use of force, allurement or by fraudulent means and requires the person who
participates or takes part in the ceremony for conversion from one religious
faith to another should send the intimation to the District Magistrate either in
advance or within a stipulated period after the event of conversion. Failure to do
so is an offence. Some enactments cast a duty on the person who is converted to
send a notice to the District Magistrate within a stipulated period in a prescribed
form and if he fails without sufficient cause to comply with this requirement, he
is also punishable. Thus, the intimation and the filing of declaration is a
statutory obligation enforceable by law in some of the States. However, where
there is no such
 138

legislation, the Commission feels that the filing of declaration and registration
should not be made obligatory or indispensable mode of proof of conversion.
Nor it is necessary or desirable for the Parliament to step in and incorporate
such a provision in the Hindu Marriage Act and other laws. We are not
concerned here with the issue of forcible or induced conversions and remedial
action to be taken in connection therewith. We are only examining the limited
question of the evidentiary proof required to establish the factum of conversion
when a dispute arises.

13. Viewed in this light, the Commission is of the view that the suggestion of
the High Court deserves to be accepted to a limited extent so as to afford an
opportunity to those converts who would like to have documentary evidence of
declaration to substantiate the plea of conversion as and when required. At the
same time, the filing of declaration and recording thereof should not be made
obligatory and an indispensable mode of proof of conversion, but it should only
be made optional so that the converted person will be enabled to have
documentary proof to establish the factum of conversion/reconversion in the
absence of other reliable documentary evidence. However, as stated earlier,
such documentary proof testifying to the declaration and confirmation made by
the converted persons ought not to be considered as conclusive proof. The Court
cannot be barred from considering the other relevant questions such as the
voluntary nature of conversion and the subsequent conduct of the alleged
convert, whenever a dispute arises. Hence it is reiterated that the recorded
declaration not followed by objections cannot be regarded as the sole criterion
to establish conversion in a court of law, though it may be given due weight by
the Court in reaching the finding.

14. The Commission would like to advert to one more aspect. In regard
the compulsory registration of marriages, the Supreme Court in the case of
Seema(Smt.) Vs Ashwani Kumar (2006) 2 SCC 578, gave certain
directives/suggestions to the State Governments. However, it does not appear
that the States have taken any concrete measures in this regard. In the 211th
Report, the Law Commission has gone to the extent of recommending that the
non-registration of marriage and divorce should be made an offence and
secondly that no judicial relief shall be granted if the concerned marriage or
divorce is not duly registered under the proposed Act. Presently, the Law
Commission does not wish to offer its comments on those suggestions having
far-reaching effects because the issue which the Commission is presently called
upon to deal with is about conversions. If the registration of marriage is made
obligatory as per the directives of
 139

Supreme Court, or the recommendations of the Law Commission, it does not

necessarily follow that conversion to another religion should also be
compulsorily registered. Conversion which is bereft of any particular formalities
or religious rites, cannot be placed on the same pedestal as marriage which can
be recognized in law only if customary rites and ceremonies are gone through.
Further, the backdrop in which the compulsory registration of marriages was
considered necessary in societal interest is not applicable in all fours to religious
conversions. Maybe, as and when compulsory registration of marriage and
divorce becomes a reality and adequate machinery is put in place to implement
the directives for registration of marriages, the question of recording/registration
of conversion could also be considered. At this juncture, the Commission does
not propose to recommend, based on the 211th Report, to evolve a scheme for
compulsory registration of conversions as well where there is no such law in a
State.

Representations/views received and discussions thereon

15. Before we conclude the report by formulating the Commission‘s

recommendations, we would like to consider the views expressed in the
responses submitted by Kerala Law Academy Law College,
Thiruvananthapuram, Revd. Archbishop of Bhopal, the Catholic Church
Body of Madhya Pradesh and certain other Christian organizations/individuals
of MP State.

15.1 The students and faculty of Kerala Law Academy, after intensive
discussion submitted a report under the caption ―Statutory vacuum for
effectuating voluntary religious conversion‖. The report of Kerala Law
Academy has stressed on the need to legislatively prescribe a non-cumbersome
procedure for effectuating religious conversion. It has been
pointed out that declaration should be recognized in the statute as an effective
means of conversion. Further, it was pointed out that the law should clearly
define the scope and ambit of conversion ceremonies in effecting conversion.
The absence of prescription of specific procedure, according to them, creates a
legal vacuum in the area of religious conversion which is not in tune with the
constitutional guarantee of freedom of conscience.

15.2 We have already adverted to some of these aspects. The Commission

would like to reiterate that the declaration followed by confirmation should not
by itself be treated as proof of conversion and
 140

secondly it would be highly inappropriate to prescribe by way of legislation the

details of ceremonies and/or formalities to be gone through for the purpose of
conversion or the manner in which by law the conversion has to be proved in a
court of law. Nebulous prescriptions ought to be avoided. Further, the whole
problem has to be viewed from the angle whether the conversion was bona fide
or genuine. The observance of the prescribed ceremony or the declaration of the
convert cannot give sanctity to the alleged conversion, if the conversion is
otherwise a ‗sham‘ exercise or a pretence to achieve an ulterior objective or the
result of force or allurement. Freedom of conscience is in no way infringed by
adopting this approach. The Commission is, therefore, of the view that the filing
of declaration or the proof of observance of certain rituals / ceremonies cannot,
having regard to the essence of conversion, be treated as conclusive proof of
conversion. But, the declaration followed by confirmation, as said earlier, serves
as an important piece of evidence in support of conversion.

15.3 Coming to the responses sent by the Rev. Archbishop of Bhopal and the
Christian Organizations of MP (which are almost on similar lines), the
following is the summary of the representations:

Cases are being registered against Christians on the allegation of effecting

conversion by force or allurement and the fundamental organisations have also
been disturbing the prayer meetings.
Proper guidelines on the subject of religious conversions and
reconversions will help avoiding conflicts. The law should be such as to respect
the conscience of the individual. When the change of religion is a conscious
choice of an individual based on his belief in God, the law cannot insist on
obtaining the prior permission from the District Magistrate to change his or her
religion. It is only after the conversion that it would be appropriate to send the
intimation to the concerned officer of the Government.

15.4 Some of the points referred to above relate to the legal validity of certain
provisions of the Freedom of Religion Act enacted by Madhya Pradesh
Legislature and the alleged high-handed action by the police under
the said Act and also the lawless acts of the people of certain groups opposed to
Christanity. These complaints cannot be looked into by the Law Commission as
it is not within the scope of the subject taken up for
consideration. They raise larger issues regarding the constitutional validity
of the provisions of the said enactment or distortions in applying the law or
 141

the alleged lawless acts of certain persons. These do not fall within the
domain of the Commission‘s report.

15.5 As regards the other point raised, i.e. providing proper guidelines on
the subject of conversions/re-conversions, this aspect has already been dealt
with in the earlier paragraphs.

Recommendations

16. The Law Commission, therefore, proposes to formulate the following

recommendations:

1. Within a month after the date of conversion, the converted person,

if she/he chooses, can send a declaration to the officer in charge of
registration of marriages in the concerned area.

2. The registering official shall exhibit a copy of the declaration on the

Notice Board of the office till the date of confirmation.

3. The said declaration shall contain the requisite details viz., the particulars
of the convert such as date of birth, permanent address, and the present
place of residence, father‘s/husband‘s name, the religion to which the
convert originally belonged and the religion to which he or she converted,
the date and place of conversion and nature of the process gone through
for conversion.

4. Within 21 days from the date of sending/filing the declaration, the

converted individual can appear before the registering officer, establish
her/his identity and confirm the contents of the declaration.

5. The Registering officer shall record the factum of declaration and

confirmation in a register maintained for this purpose. If any objections
are notified, he may simply record them i.e., the name
and particulars of objector and the nature of objection.

6. Certified copies of declaration, confirmation and the extracts from

the register shall be furnished to the party who gave the declaration or the
authorized legal representative, on request.
 142

17. Now, the question arises as to how the above recommendations could be
implemented. It is clarified that in whichever State, there is a law
governing conversion such as Freedom of Religion Act, the above
recommendations do not apply. The question then is whether for
implementation of the said recommendations in other States, the enactment
of law by Parliament is necessary. The Commission is inclined to think that a
separate enactment or amendments to the respective personal laws is not
required to give effect to this simple recommendation having regard to the fact
that it does not go contrary to the existing provisions of law nor does in any way
impinge on the religious freedom or faith of any person. Matters relating to
conversion/reconversion are governed by the personal laws in respect of which
Parliament has power to make laws. The Central
Government can exercise its executive power under Article 73 to issue
appropriate instructions to the Union Territories. Similar communications
may be addressed by the Central Government to the States (where there are
no laws governing the conversion) to give effect to the recommendations set out
supra. The Governments concerned in their turn will have to issue
necessary orders to the Registration officers. That can be done by the
Governments of UT and State Governments administratively.

(Justice P.V. Reddi)

Chairman

(Justice Shiv Kumar Sharma) (Amarjit Singh)

Member Member

(Dr Brahm Agrawal)

Member-Secretary
 CHAPTER-X
EXTRACTS OF IMPORTANT JUDGMENTS
OF HON‟BLE SUPREME COURT AND
VARIOUS HIGH COURTS
 143

CHAPTER- X
EXTRACTS OF IMPORTANT
JUDGMENTS OF HON‟BLE
SUPREME COURT AND VARIOUS
HIGH COURTS

SUPREME COURT OF INDIA

CIVIL APPEAL NO. 5158 OF 2013

MOHAMMED SALIM (D) THROUGH LRS. & ORS.

APPELLANTS
VERSUS

SHAMSUDEEN (D) THROUGH LRS.&ORS. --

RESPONDENTS

Question for consideration:

Whether Marriage between a Hindu woman
and Muslim man is regular or irregular

The case of the plaintiff is that Defendant No. 8 namely Saidat, was
the first wife of Mohammed Ilias, and no issue was born out of the said
wedlock. Thereafter, Mohammed Ilias married Valliamma in 1120 M.E.
(as per the Malayalam Calendar, which corresponds to 1945 AD in the
Gregorian system). Valliamma was a Hindu at the time of her
marriage with Mohammed Ilias. Both Mohammed Ilias and
Valliamma lived together as husband and wife at Thiruvananthapuram.
Later, Valliamma was renamed Souda Beebi. Out of the said wedlock,
Shamsudeen (the plaintiff) was born.
 144

Subsequent to the death of Mohammed Ilias in 1947 AD, Valliamma

(Souda Beebi) married Aliyarkunju.

The plaintiff claimed that he was the only son of Mohammed Ilias
and on his death, he became entitled to 14/16 th of the share in Schedule
‗A‘ property. He also claimed half the share in Schedule ‗B‘ property
through inheritance after the demise of Zainam Beevi, as the same would
have devolved upon the plaintiff, being the son of the predeceased son
of Zainam Beevi, and Mohammed Idris, Defendant No. 1, being the only
surviving son of Zainam Beevi. Hence, the suit was filed.

3. It is the case of the defendants that Valliamma was not the legally
wedded wife of Mohammed Ilias and that she was a Hindu by religion
at the time of marriage. She had not converted to Islam at the time of her
marriage, and thus the plaintiff being the son of Valliamma, is not
entitled to any share in the property of Mohammed Ilias. It is their
further case that Mohammed Ilias had died two years prior to the birth of
the plaintiff.

4. As mentioned supra, the trial Court decreed the suit and the first
appellate Court allowed the appeal and dismissed the suit by setting
aside the judgment and decree of the trial Court. However, the High
Court by the impugned judgment set aside the judgment passed by the
first appellate Court and confirmed the judgment and decree passed by
the trial Court. Hence, the instant appeal was filed by the original
defendants and the legal representatives of those among them who have
since died.

Under these circumstances, in our considered opinion, the Trial

Court and the High Court were justified in concluding, based on the
preponderance of probabilities, that Valliamma was the legally wedded
wife of Mohammed Ilias, and the plaintiff was the child born out of the
said wedlock.

8. The High Court, in our considered opinion, was also justified in

concluding that though the plaintiff was born out of a fasid (irregular)
 145

marriage, he cannot be termed as an illegitimate son of Mohammed Ilias.

On the contrary, he is the legitimate son of Mohammed Ilias, and
consequently is entitled to inherit the shares claimed in the estate of his
father. The High Court relied upon various texts, including Mulla‘s
Principles of Mahommedan Law (for brevity ―Mulla‖) and Syed Ameer
Ali‘s Principles of Mahommedan Law, to conclude that Muslim law
does not treat the marriage of a Muslim with a Hindu woman as void,
and confers legitimacy upon children born out of such wedlock.
In the 21st edition of Mulla, at page 338, § 250, marriage is
defined as follows:-

―Marriage (nikah) is defined to be a contract which

has for its object the procreation and the legalizing
of children.‖

Thus it appears that a marriage according to Muslim law is not a

sacrament but a civil contract. Essentials of a marriage are dealt with in
§ 252 at page 340 of Mulla (21st edition) as follows:

―It is essential to the validity of a marriage that

there should be a proposal made by or on behalf
of one of the parties to the marriage, and an
acceptance of the proposal by or on behalf of the
other, in the presence and hearing of two male or
one male and two female witnesses, who must be
sane and adult Mohamedans. The proposal and
acceptance must both be expressed at one
meeting; a proposal made at one meeting and an
acceptance made at another meeting do not
constitute a valid marriage. Neither writing nor
any religious ceremony is essential.‖

§ 259(1) at page 345 of the 21 st edition deals with difference

of religion, providing that marriage of a Muslim man with a non-
Muslim woman who is an idolatress or fire
 146

worshipper is not void, but merely irregular. It reads:

―A Mahomedan male may contract a valid

marriage not only with a Mahomedan woman,
but also with a Kitabia, that is, a Jewess or a
Christian, but not with an idolatress or a fire-
worshipper. A marriage however, with an
idolatress or a fire-worshipper, is not void, but
merely irregular.‖

Before proceeding further, it is crucial to note that under Muslim

law, there are three types of marriage—valid, irregular and void, which
st
are dealt within §253at page 342 of Mulla (21 edition):

―A marriage may be valid (sahih), or irregular (fasid)

or void from the beginning(batil).‖

The High Court, while dealing with the contention that the correct
translation of the Arabic word ―fasid‖ was ―invalid‖, and not
―irregular‖, and that therefore a fasid marriage was a void marriage,
considered the changes over time in the interpretation of ―fasid‖. It
th
would be worthwhile for us to refer to these changes as well. In the 6
edition of Mulla, at§§197,199 and 200, fasid marriage is interpreted as
―invalid‖. So also in §§ 197, 199 and 204A of the 8 th edition of Mulla,
fasid is stated to mean ―invalid‖. For instance, in the 6 th edition of
Mulla, § 200 at page 162, dealing with the difference of religion, reads:

―(1) A Mahomedan male may contract a valid

marriage not only with a Mahomedan woman but
with a Kitabia, that is, a Jewess of a Christian,
but not with an idolatress or a fire-worshipper. If
he does marry an idolatress or a fire-worshipper
the marriage is not void (batil), but merely
invalid(fasid).‖

(emphasis supplied)

§204A at page 164 of the same edition deals with the distinction
between void (batil) and invalid (fasid) marriage. It provides that a
 147

marriage which is not valid may be either void (batil) or invalid (fasid).
A void marriage is one which is unlawful in itself, the prohibition
against such a marriage being perpetual and absolute. An invalid
marriage (fasid marriage) is described as one which is not unlawful in
itself, but unlawful ―for something else‖, as here the prohibition is
temporary or relative, or when the invalidity arises from an accidental
circumstance such as the absence of a witness. § 204A(3) at page 165 of
the 6th edition of Mulla reads:

―…Thus the followingmarriages are invalid, namely—

(a) A marriage contracted without witnesses, (ss. 196-197);

(b) a marriage by a person having four wives with a fifth
wife (s.198);
(c) a marriage with a woman who is the wife of another,
(s.198A);
(d) a marriage with a woman undergoing iddat (s.199);
(e) a marriage prohibited by reason of difference of religion
(s.200);
(f) a marriage with a womans related to the wife that if one
of them had been a male, they could not have lawfully
intermarried (s. 204)…‖
(emphasis supplied)

The reason why the aforesaid marriages are invalid and not void
has also been provided later in the same paragraph. With respect to
marriages prohibited by reason of difference of religion, it is stated
thus:

―…in cl. (e) the objection may be removed by the

wife becoming a convert to the Mussulman,
Christian or Jewish religion, or the husband
adopting the Moslem faith…‖

In the 10th edition, a change has been made to the meaning of

fasid marriage. In § 196A, valid, irregular and void marriages are dealt
with. It reads:

―A marriage may be valid (sahih) or irregular

 148

(fasid), or void from the beginning (batil).‖

(emphasis supplied)

From the 10th edition onwards, fasid marriage has been described
as an irregular marriage, instead of invalid, but there has been no
change with regard to the effect of a fasid marriage from the 6th edition
on wards. The effects of an invalid (fasid) marriage have been dealt
with in the 6th edition of Mulla at § 206 at page 166, clauses (1) and (2)
of which read:

―(1) An invalid marriage has no legal effect

before consummation.

(2) If consummation has taken place, the wife is

entitled to dower [―proper‖ (s.220) or specified
(s. 218), whichever is less], and children
conceived and born during the subsistence of the
marriage are legitimate as in the case of a valid
marriage. But an invalid marriage does not, even
after consummation, create mutual rights of
inheritance between the parties.‖

In the 8th edition of Mulla, the effects of a fasid marriage have

been dealt with in § 206 at page 173. As in the 6th edition, it is stated
that children conceived and born during the subsistence of a fasid
marriage are legitimate, as in the case of a valid marriage. As noted
supra, the same position has been followed in the subsequent editions
also, except that fasid has been described as ―irregular‖ from the 10 th
edition onwards rather than as―invalid‖.

Irrespective of the word used, the legal effect of a fasid marriage

is that in case of consummation, though the wife is entitled to get
dower, she is not entitled to inherit the properties of the husband. But
the child born in that marriage is legitimate just like in the case of a
valid marriage, and is entitled to inherit the property of the father.
 149

9. Evidently, Muslim law clearly distinguishes between a valid

marriage (sahih), void marriage (batil), and invalid/irregular marriage
(fasid). Thus, it cannot be stated that a batil (void) marriage and a fasid
(invalid/irregular) marriage are one and the same. The effect of a batil
(void) marriage is that it is void ab initio and does not create any civil
right or obligations between the parties. So also, the offspring of a void
marriage are illegitimate (§ 205A of the 6thand 8th editions and §§ 205A
of the 10th edition, and 266 of the 18th edition of Mulla). Therefore, the
High Court correctly concluded that the marriage of Defendant No. 9
with Mohammed Ilias cannot be held to be a batil marriage but only a
fasid marriage.

10. We find that the same position has been reiterated in the
21stedition of Mulla as follows. The distinction between void and
irregular marriages has been dealt within §264at page349:

―(1) A marriage which is not valid may be either void

or irregular.

(2) A void marriage is one which is unlawful in itself,

the prohibition against the marriage being perpetual
and absolute. Thus, a marriage with a woman
prohibited by reason of consanguinity (§260),
affinity (§261), or foster age (§262), is void, the
prohibition against marriage with such a woman
being perpetual and absolute.

(3) An irregular marriage is one which is not unlawful

in itself, but unlawful ‗for something else,‘ as where
the prohibition is temporary or relative, or when the
irregularity arises from an accidental circumstance,
such as the absence of witnesses. Thus the following
marriages are irregular, namely-
(a) a marriage contracted without witnesses (§
254);
 150

(b) a marriage with a fifth wife by a person having

four wives (§255);
(c) a marriage with a woman undergoing iddat (§
257);
(d) a marriage prohibited by reason of
difference of religion (§259);
(e) a marriage with a woman so related to the wife
that if one of them had been a male, they could
not have lawfully intermarried (§263).
The reason why the aforesaid marriages are
irregular, and not void, is that in Clause (a) the
irregularity arises from an accidental circumstance; in
Clause(b) the objection may be removed by the man
divorcing one of his four wives; in Clause(c) the
impediment ceases on the expiration of the period of iddat;
in Clause (d) the objection may be removed by the wife
becoming a convert to the Mussalman, Christian or
Jewish religion, or the husband adopting the Moslem
faith; and in Clause(e) the objection may be removed by
the man divorcing the wife who constitutes the obstacle;
thus if a man who has already married one sister marries
another, he may divorce the first, and make the second
lawful to himself.‖
(emphasis supplied)

The effect of an irregular (fasid) marriage has been dealt with in §

267 at pages 350-351 of the 21st edition of Mulla as follows:
―267. Effect of an irregular (fasid) marriage.—(1) An
irregular marriage may be terminated by either party,
either before or after consummation, by words showing
an intention to separate, as where either party says to
the other ―I have relinquished you‖. An irregular
marriage has no legal effect before consummation.
 151

(2) If consummation has taken place—

(i) the wife is entitled to dower, proper or
specified, whichever is less (§ 286,289);
(ii) she is bound to observe the iddat, but the
duration of the iddat both on divorce and death is
three course (see §257(2));

(iii) the issue of the marriage is legitimate.

But an irregular marriage, though consummated,
does not create mutual rights of inheritance
between husband andwife...‖

(emphasis supplied)

The Supreme Court, in Chand Patel v. Bismillah Begum, (2008)

4 SCC 774, while considering the question of the validity of a marriage
of a Muslim man with the sister of his existing wife, referred to the
above passages from Mulla (from an earlier edition, as reproduced in
the 21st edition) while discussing the difference between void and
irregular marriages and the effects of an irregular marriage.

11. In Syed Ameer Ali‘s Mohamedan Law also, the same principle
has been enunciated. The learned author, while dealing with the issue
of the legitimacy of the children, observed at page 203 of Vol. II,5 th
edition:

―The subject of invalid marriages, unions that are

merely invalid (fasid) but not void (batil) ab
initio under the Sunni Law, will be dealt with
later in detail, but it may be stated here that the
issue of invalid marriage are without question
legitimate according to all the sects.
For example, if a man were to marry a non-
scriptural woman, the marriage would be only
invalid, for she might at any time adopt Islam or
any other revealed faith, and thus remove the
 152
cause of invalidity. The children of such
marriage, therefore, would be legitimate.‖

Tahrir Mahmood in his book Muslim Law in India and Abroad,

(2nd edition) at page 151 also affirms that the child of a couple whose
marriage is fasid, i.e., unlawful but not void, under Muslim law will be
legitimate. Only a child born outside of wedlock or born of a batil
marriage is not legitimate.

A.A.A. Fyzee, at page 76 of his book Outlines of Muhammadan

Law (5th edition) reiterates by citing Mulla that the nikah of a Muslim
man with an idolater or fire-worshipper is only irregular and not void.
He also refers to Ameer Ali‘s proposition that such a marriage would
not affect the legitimacy of the offspring, as the polytheistic woman
may at any time adopt Islam, which would at once remove the bar and
validate the marriage.

12. The position that a marriage between a Hindu woman and

Muslim man is merely irregular and the issue from such wedlock is
legitimate has also been affirmed by various High Courts. (See Aisha
Bi v. Saraswathi Fathima, (2012) 3 LW 937 (Mad), Ihsan Hassan
Khan v. Panna Lal, AIR 1928 Pat19).

13. Thus, based on the above consistent view, we conclude that

the marriage of a Muslim man with an idolater or fire-worshipper
is neither a valid (sahih) nor a void (batil) marriage, but is merely
an irregular (fasid) marriage. Any child born out of such wedlock
(fasid marriage) is entitled to claim a share in his father‘s property. It
would not be out of place to emphasise at this juncture that since
Hindus are idol worshippers, which includes worship of physical
images/statues through offering of flowers, adornment, etc., it is clear
that the marriage of a Hindu female with a Muslim male is not a
regular or valid (sahih) marriage, but merely an irregular (fasid)
marriage.

14. In this view of the matter, the trial Court and the High Court
were justified in concluding that the plaintiff is the legitimate son of
Mohammed Ilias and Valliamma, and is entitled to his share in the
property as per law. The High Court was also justified in modifying
 153

the decree passed by the trial Court and awarding the appropriate
share in favour of the plaintiff. No issue has been raised before us
relating to the quantum of share. Accordingly, the appeal fails and
stands dismissed.

January 22, 2019.

In Ratilal Panachand Gandhi vs. The State of Bombay and others on 18

March, 1954, reported in 1954 AIR 388, 1954 SCR 1035, Hon‘ble the Apex
Court has held as under:-

The moot point for consideration, therefore, is where is the line to be drawn
between what are matters of religion and what are not? Our Constitution-
makers have made no attempt to define what 'religion' is and it is certainly not
possible to frame an exhaustive definition of the word 'religion' which would be
applicable to all classes of persons. As has been indicated in the Madras case
referred to above, the definition of religion given by Fields J. in the American
case of Davis v. Beason (1), does not seem to us adequate or precise. "The term
'religion"', thus observed the learned Judge in the case mentioned above, "has
reference to one's views of his relations to his Creator and to the obligations
they impose of reverence for His Being and character and of obedience to His
Will. It is often confounded with cultus or form of worship of a particular sect,
but is distinguishable from the latter". it may be noted that 'religion' is not
necessarily theistic and in fact there are well known religions in India like
Buddhism and Jainism which do nor believe in the existence of God or of any
Intelligent First Cause. A religion undoubtedly has its basis in a system of
beliefs -and doctrines which are regarded by those who profess that religion to
be conducive to their spiritual well being,but it would not be correct to say, as
seems to have been suggested by one of the learned Judges of the Bombay
High Court, that matters of religion are nothing but matters of religious faith and
religious belief. A religion is not merely an opinion, doctrine or belief. It has its
outward expression in acts as well. We may quote in this connection the
observations of Latham C. J. of the High Court of Australia in the case of
Adelaide Company v. The Commonwealth (2), where the extent of protection
given to religious freedom by section 116 of the Australian Constitution came
up for consideration. (1)133 U.S. 33 (2) 67 C.L.R, 116, 124.
 154

"It is sometimes suggested in discussions on the subject of freedom of

religion that, though the civil Government should not interfere with religious
opinions, it nevertheless may deal as it pleases with any acts which are done in
pursuance of religious belief without infringing the principle of freedom of
religion. It appears to me to be difficult to maintain this distinction as relevant to
the interpretation of section 116. The section refers in express terms to the
exercise of religion, and therefore it is intended to protect from the operation of
any Commonwealth laws acts which are done in the exercise of religion. Thus
the section goes far beyond protecting liberty of opinion. It protects also acts
done in pursuance of religious belief as part of religion., In our opinion, as we
have already said in the Madras case, these observations apply fully to the
provision regarding religious freedom that is embodied in our Constitution.

Religious practices or performances of acts, in pursuance of religious

belief are as much apart of religion as faith or belief in particular doctrines. Thus
if the tenets of the Jain or the Parsi religion lay down that certain rites and
ceremonies are to be performed at certain times and in a particular manner, it
cannot be said that these are secular activities partaking of commercial or
economic character simply because the involve expenditure of money or
employment of priests or the use of marketable commodities. No outside
authority has any right to say that these are not essential parts of religion and it is
not open to the secular authority of the State to restrict or prohibit them in any
manner they like under the guise of administering the trust estate. Of course, the
scale of expenses to, be incurred in connection with these religious observances
may be and is a matter of administration of property belonging to religious
institutions; and if the expenses on these heads are likely to deplete the endowed
properties or affect the stability of the institution, proper control can certainly
be exercised by State agencies as the law provides. We may refer in this
connection to the observation of Davar J. in the case of Jamshed ji v. Soonabai
, and although they were made in a case where the question was whether the
bequest of property by a Parsi testator for the purpose of perpetual celebration of
ceremonies like Muktadbaj, Vyezashni, etc., which are sanctioned by the
Zoroastrian religion were valid charitable gifts, the observations, we think, are
quite appropriate for our present purpose. "If this is the belief of the
community" thus observed the learned Judge, "and it is proved undoubtedly to
be the belief of the Zoroastrian community,-a secular Judge is bound to accept
that belief-it is not for him to sit in judgment on that belief, he has no right to
interfere with the conscience of a donor who makes a gift in favour of what he
believes to be the advancement of his religion and the, Welfare of his
community or mankind". These observations do, in our opinion, afford an
indication of the measure of protection that is given by article 26(b) of our
Constitution.
 155

The distinction between matters of religion and those of secular

administration of religious properties may, at times, appear to be a thin one. But
in cases of doubt, as Chief Justice Latham pointed out in the case referred to
above, the court should take a common sense view and be actuated by
considerations of practical necessity. It is in the light of these principles that we
will proceed to examine the different provisions of the Bombay Public Trusts
Act, the validity of which has been challenged on behalf of the appellants.

The result, therefore, is that in our opinion the appeals are allowed only in
part and a mandamus will issue in each of these cases restraining the State
Government and the Charity Commissioner from enforcing against the
appellants the following provisions of the Act to wit :-
(i) Section 44 of the Act to the extent that it relates to the appointment of the
Charity Commissioner as a trustee of religious public trust by the court,
(ii) the provisions of clauses (3) to (6) of section 47, and
(iii) clause (c) of section 55 and the part of clause (1) of section 56
corresponding thereto.

The other prayers of the appellants stand dismissed. Each party will bear
his own costs in both the appeals.

ALLAHABAD HIGH COURT

2010(4) ADJ 724 (DB)

Smt. Seema & Another vs State of U.P.&3 Others

Decided on 28 November, 2014
(Civil Misc. Writ Petition No. - 64257 of 2014)

3. Learned counsel for the petitioners submits that the petitioners have
married with each other but the respondent no. 4 is interfering and as such
mandamus may be issued to the respondents to protect the matrimonial life
and liberty of the petitioners. Both the petitioners are present in the Court and
have been identified by their learned counsel.
 156

4. Learned Standing counsel submits that there is no religion conversion by

petitioner no. 1 WHO is a Hindu girl and therefore there cannot be a marriage of
petitioner no. 2 ( a muslim) as per the Holy Quran.
6. Statement on oath of Seema (petitioner NO.1):-
;kph la0 1 lheku sle{k U;k;ky; l'kiFk c;ku fd;k fd vkt fnukWd 28&11&14 dk
sfuEufyf[kr c;ku ns jgh gwWA esjk uke lhek gSA esj sfirk th dk uke f'ko ukjk;.k gSA og eqEcb
Ze sajgr sg SavkSj ogh aO;kikj djrs gSA eS ad{kk 12 rd i<+h gwWA eS alqyrku ds lkFk fnukWd
16&11&2014 dks bykgkckn vkbZA mUgksua s esjk fudkg 23&11&14 dks gkbZdksVZ ds lkeus elftn
esa djk fn;kAeSau sviuk /ke ZifjorZu ugh fd;k gSA fQj dgk eSaus viuk /keZ ifjorZu dj fy;k
gSA esjs ikl /keZ ifjorZu dk dksbZ izek.k ugha gSA fQj dgk eS a/keZ ifjorZu djuk pkgrh gwWA

(i) Statement on oath of Sultan (petitioner NO.2)

;kph la0 2 lqYrku us le{k U;k;ky; l'kiFk c;ku fd;k fd vkt fnukWd 28&11&14
dks fuEufyf[kr c;ku ns jgk gwWA esjk uke lqYrku gSA esjs firk dk uke blkd vUlkjh gSA og
eqEcbZ esa jgrs gSaA eSa eqEcbZ esa dkjisUVj dk dk;Z djrk gwWA eSa ;gkWa ij pkj&ikWp fnu igys
lhek dks eqEcbZ ls bykgkckn lkFk ysdj vk;k gwWA eSaus buls fudkg bykgkckn esa dj fy;kA eSas
bLyke /keZ ekurk gwWA eSaus viuk /keZ ifjorZu ugha fd;k gSA eSus gkbZdksVZ ds lkeus buls fudkg
dj fy;kA eSus budk /keZ ifjorZu ugha djk;k gSA esjh tUefrfFk 24&4&93gSA eSa d{kk 8 rd
i<+kgwWA**

8. In the statement as reproduced above, both the petitioners have admitted

that their parents are residing in Mumbai.

9. In the alleged Nikahnama the date and place of Nikah is recorded as

under:

^^rkjh[k fudkg&23-11-2014 oDr 4 ct sfnu brokj ojeqdke gkbZdksVZ] bykgkckn**

10. Petitioner NO. 1 is a Hindu girl and as per her own statement as
reproduced above, she has neither renounced Hindu religion nor has embraced
Islam prior to the alleged Nikah. She has also not changed her original Hindu
name. Petitioner no. 2 has stated that he brought the petitioner no. 1 from
Mumbai to Allahabad and performed Nikah in front of High Court. He also
stated that the petitioner no. 1 has not changed her
 157

religion.

11. From the facts as noted above, it is clear that the petitioner no. 1 WAS

brought from Mumbai to Allahabad by the petitioner NO.2. She is a Hindu by

religion and has neither renounced her religion nor embraced Islam. She has
written her original Hindu name not only in the writ petition but also stated the
same in her statement. She has put her signature as "SEEMA" in the writ
petition and also on the statement on oath before this Court. No evidence of
religion conversion of petitioner no. 1 has been filed along with the writ
petition.

12. In the case of Dilbar Habib Siddiqui Vs. State of U.P. and another, 2010
(69) ACC 997, a Division Bench of this Court held as under :-

"The primary question which is to be adjudicated by us is as to whether the

impugned FIR can be quashed or not on the peculiar facts of the writ petition?
A perusal of the contents of the impugned FIR indicates that Khushboo
Jaiswal is alleged to have been abducted by the petitioner three months
prior to the lodging of it. By his dexterous manuvours and deceit petitioner had
succeeded in not getting the FIR registered against him for all this period. It
is informant's allegation that petitioner had abducted her daughter. Writ
Petition further reveals that Khushboo never converted herself into Islam.
There is no document regarding her such conversion. In our above conclusion
we are fortified by the fact that in the affidavit and application filed by
Khusboo herself subsequent to her alleged contract marriage she has described
herself as Khushboo and not by any Islamic name. As Khushboo she could
not have contracted marriage according to Muslim customs. In those
referred documents she has addressed herself as Khushboo Jaiswal daughter
of Rajesh Jaiswal. Thus what is conspicuously clear unerringly without any
ambiguity is that Khushboo Jaiswal never converted and embraced Islam and
therefore her marital tie with the petitioner Dilbar Habib Siddiqui is a void
marriage since the same is contrary to Islamic dicta and tenets of Holy Quran.
It is recollected here that Nikah i.e. marriage in pre-Islamic Arabia, meant
different forms of sex relationships between a man and a woman. Prophet
Mohammed brought about a complete change in the position of woman in
society through Holy Quran, which is the primary and basic source of Islamic
Law. In this respect
 158

we can do no better than to refer the verses of Holy Quran. Sura 2 Ayat
221ofThe Holy Quran as is mentioned in the text book of Mohammedan
Law by I. Mulla, Ist Edition, 2ND reprint, at page162, PROVIDES as follows:-

"Do not marry unbelieving women until they believe. Nor marry your girls to
unbelievers until they believe" .

Here a believing women is referred to such a women who has embraced

Islam and has faith in Prophet Mohammed. Marriage in Muslim law is not
only a ritual but is also "a devotional act" as Dr. M.U.S.Jang referred it in his
book 'Desertion on the Development of Muslim Law in British India'
(page1.2.).I. Mulla in his above text book at page166 has written thus:-

"Koranic injunctions recognise in Islam, marriage as the basis of society.

Though it is a contract, it is also a sacred covenant. Temporary marriages are
forbidden. Marriage as an institution leads to the uplift of man and is a means
for the continuance of human race."

Thus what is well recognised in Muslim Law is that marriage is a sacred act.
For essentials of a valid muslim marriage, AL-HAJ MAULANA FAZLUL
KARIM in his translation and commentary of Mishkat-ul-Masabih, AL-
HADIS (BOOKII), CHAPTER XXVII, SECTION 2, HAS written thus:-

"Intradition, we find that the following qualifications of a bride should be

sought. The bride should be (1) a Muslim (2) chaste (3) virgin, (4) beautiful,
(5) accomplished, (6) having sweet tongue, and good manners, (7) possessing
property, (8) having children bearing capacity and affectionate nature and (9)
equal respectability."

Thus for a valid muslim marriage both the spouses have to be muslim. In
the present writ petition this condition is not satisfied as the writ petition
lacks credible and accountable material in this respect on which reliance
can be placed."

13. Since for a valid Muslim marriage both the spouses have to be Muslim
as per verses of Holy Quran as noted in the judgment in the case of
Dilawar Habib Siddiqui (supra) and since undisputedly the petitioner no. 1
is a Hindu girl and has not embraced Islam and as such it cannot be said that
there was any valid marriage.
 159
15. In view of the above discussion this Court finds no good reason to grant
any relief in this writ petition.
16. In result writ petition fails and is hereby dismissed.

OrderDated:-28.11.2014

***********************************
ALLAHABAD HIGH COURT

(1) Case :- WRIT - C No. - 57068 of 2014

Petitioner :- Smt. Noor Jahan Begum @ Anjali Mishra &
Another
Respondent :-State Of U.P. & 4 Others
Counsel for Petitioner :-M.S. Ansari
Counsel for Respondent :-C.S.C.
Judgment Reserved on 31.10.2014

(2) Case :- WRIT - C No. - 58129 of 2014

Petitioner :- Smt. Afsana @ Kiran And Another
Respondent :- State Of U.P. And Others
Counsel for Petitioner :-R.P. Srivastava
Counsel for Respondent :-C.S.C.
Judgment Reserved on 3.11.2014

(3) Case :-WRIT - C No. - 58910 of 2014

Petitioner :-Sony @ Sabia & Another
Respondent :-State Of U.P. & 4 Others
Counsel for Petitioner :-Dinesh Raghav, Abhijit Mishra
Counsel for Respondent :-C.S.C.
Judgment reserved on 10.11.2014

(4) Case :- WRIT - C No. - 60499 of 2014

Petitioner :- Smt. Ayaish Begum @ Aneeta Vishwakarma &Another
Respondent :- State Of U.P. & 4 Others
Counsel for Petitioner :-Bed Kant Mishra
Counsel for Respondent :- C.S.C.
Judgment reserved on 20.11.2014

(5) Case :-WRIT - C No. - 62587 of 2014

Petitioner :- Smt. Sonam Begum @ Priyanka & Another
Respondent :- State Of U.P. & 3 Others
 160

Counsel for Petitioner :-R.K. Shukla, Ajay Kumar

Counsel for Respondent :-C.S.C.

QUESTION FOR CONSIDERATION:

“Whether conversion of religion of a Hindu girl at the instance of a Muslim

boy, without any knowledge of Islam or faith and belief in Islam and
merely for the purpose of Marriage (Nikah) is valid?”

2. All these writ petitions have been filed praying for protection as married
couple on the allegation that petition No.2 in each of the writ petitions
performed Nikah with the petitioner No.1 girl after getting her religion
converted from 'Hindu' to 'Islam'. In all these writ petitions the petitioner girl
has voluntarily offered for recording their statement before this Court and, as
such statements on oath of both the petitioners in each of the above noted writ
petitions were recorded in open court and in presence of learned counsel for the
parties. Since similar controversy is involved in these writ petitions and similar
submissions have been made by learned counsels for the petitioners and the
learned standing counsel and as such I proceed to decide these writ petitions
together, with due discussions of facts of each writ petition.

SUBMISSIONS OF PARTIES

3. Learned counsels for the petitioners submit that petitioners of each writ
petitions are major and their marriage is evidenced by Nikahnama and as such
they are entitled for the relief as prayed in the writ petitions.

4. The basic submission of learned counsel for the state-respondents is that

since conversion and Nikah both are doubtful and in any circumstances religion
of petitioner girls has been converted under the dictate of petitioner No.2 boys
only for the purposes of alleged Nikah and, as such, there was neither any valid
religion conversion nor valid Nikah. Therefore, petitioners are not entitled to
protection as married couple. He submits that religion conversion from Hindu to
Islam merely for marriage and that too at the instance of Petitioner No.2 boy in
each of the writ petitions, is not permissible even as per Muslim Law.

5. Learned counsels for the petitioners do not dispute the facts that the
petitioner No.2 boy has got converted the religion of petitioner No.1 girl of
each of the writ petitions to marry with her. They also do not dispute the
 161

contents of the statements made by each of the petitioners before this Court but
they submit that since Nikahnama has been filed with the writ petition,
therefore, they are entitled for protection as married couple.

DISCUSSIONS & FINDINGS

7. Before I proceed to discuss the legal position, it would be appropriate to

discuss briefly the facts of each cases and the statements made by the
petitioners.

8. Facts of Writ C No.-58129 of 2014 are as follows:

(i) This writ petition has been filed accompanied by affidavit of petitioner
No.2 in which he has stated by personal knowledge that both the petitioners are
major and have solemnized their marriage on 20.10.2014 at Allahabad. It has
not been stated that the petitioner No.2 girl has renounced her Hindu religion
and embraced Islam and also married with the petitioner No.2 by her own
freewill. In their voluntary statement on oath before this Court, the petitioners
have stated as under:

Statement of Petitioner No.1 (girl)

^^l'kiFk c;ku fd;k fd esjk uke fdju iq=h t;a=h izlkn fuoklh taxyhiqj Fkkuk Hkkokuhxat ftyk
fl)kFkZuxjA
;kph la0 1 us le{k U;k;ky; l'kiFk c;ku fd;k fd vkt fnukWd 3&11&14 dks fuEufyf[kr
c;ku ns jgh gwWA
esjs firk th dk uke t;a=h izlkn gS eSa taxyhiqj ftyk fl)kFkZuxj dh jgus okyh gwWA eSa
b.VjehfM,V rd i<+h gwWA eSa bykgkckn fnukWd 20 vDVwcj lu~ 2014 dks 5 cts lk;adky vkbZ FkhA
eSa bykgkckn vdsyh vkbZ FkhA esjk fudkg ukS cts fnu esa bykgkckn esa vCnqy jghe us ccyw mQZ
bjQku ds lkFk djk fn;k A ;g fudkg vdcj iqj ftyk bykgkckn esa djk;k x;k FkkA esjk /keZ
ifjorZu vCnqy jghe fu0 vdcjiqj ftyk bykgkckn esa djk;k x;k FkkA ;g /keZ ifjroZu mUgksaus
'kknh djus ds fy, djk;k FkkA ;g /keZ ifjorZu mUgksua s ccyw mQZ bjQku tks fd ;kph la[;k nks
gS ds dgus ij djk;k FkkA /keZ ifjorZu izek.k i= tks fd bl ;kfpdk dk layXud rhu gS eq>s
vCnqy jghe us vdcjiqj bykgkckn esa fn;k FkkA bl dkxt ds fo"k; esa eSa dqN ugha tkurh gwWA
bLyke ds ckjs esa eSa dqN ugha tkurh gwWA dfFkr fudkgukek tks ;kfpdk dk layXud pkj gS esa
fudkg dk LFkku unZ gkbZdksVZ bykgkckn vFkkZr~ gkbZdksVZ ds djhc fy[kk gqvk gSA ;gkW esjk fudkg
ugha gqvkA C;ku i<+ o lqudj rLnhd fd;k^^

Statement of petitioner No.2

 162

^^l'kiFk c;ku fd;k fd esjk uke ccyw mQZ bjQku iq= Jh ;qlwQ vyh [kku fuoklh taxyhiqj
Fkkuk Hkkokuhxat ftyk fl)kFkZuxj gS] eSa ;kph la0 2 gwW le{k U;k;ky; esa l'kiFk iwoZd
fuEufyf[kr c;ku djrk gwWA&

eSa fdju dks fnukWd 20 vDVwcj 2014 dks izkr% 7 cts bykgkckn yk;k FkkA eSus budk /keZ ifjorZu
vdcjiqj bykgkckn esa 'kknh djus ds fy, vCnqy jghe dh enn ls ukS cts fnu esa djok;k FkkA
vCnqy jghe vdcjiqj bykgkckn efLtn esa ekSyoh gSA eSus viuk fudkg vdcjiqj esa djk;k FkkA
esjs f[kykQ dksbZ jiV ugha fy[kh xbZ gSA esjk fudkg ukS cts gqvk FkkA eq>s ;g ugha ekywe gS fd
fudkgukek esa dkth dk uke djhe vgen fy[kk gqvk gSA eSa eqEcbZ esa IykLVj vkQ isfjl dk
etnwjh ij dke djrk gwWA esjk eqEcbZ dk irk nzkoh LVs'ku ds ikl ikbi ykbu xyh ua0 31 gSA
C;ku i<+ o lqudj rLnhd fd;k^^

(ii) In her voluntary statement on oath the petitioner No.1 girl has stated that
the petitioner No.2 got converted her religion which he did to marry with her.
Petitioner No.1 also stated that her religion was converted by one Sri Abdul
Rahim on the instructions of petitioner No.2 and he gave her conversion
certificate of acceptance of Islam at Akbarpur, Allahabad which has been filed
as Annexure No.3 and about which she does not know anything. She stated that
she knows nothing about Islam. She also stated that in the Nikahnama filed as
Annexure No.4 the place of Nikah is mentioned as near High Court where nikah
did not take place. During her statement she named her as ―Kiran‖ and also put
her signature as ―Kiran‖. She has not used even the alleged Muslim name
allegedly given to her. She also stated that she was brought to Allahabad on
20th October, 2014 at 5 p.m. while alleged conversion and Nikah took place at
9 A.M. Which is not possible.

(iii) In his voluntary statement on oath on 3rd November, 2014 the petitioner
No.2 accepted that he brought Kiran (petitioner No.1) on 20th October, 2014 at
about 7 A.m. and with the help of one Sri Abdul Raheem he got her religion
converted for the purposes of Nikah. He stated that Abdul Raheem is a maulvi
in a mosque situated at Akbarpur, Allahabad. He further stated that Nikah and
conversion took place at about 9 A.M. On 20th October, 2014. He expressed
his total unawareness about the name of Qazi written in the alleged nikahanama.

9. From the aforenoted facts and statements on oath voluntary given by the
petitioners, it is clear that the story of religion conversion of petitioner No.1 is
wholly unreliable.

10. In any circumstances the religion of the petitioner No.1 was converted
under the dictates of petitioner No.2 and merely for the purposes of Nikah and
without any knowledge of Islam or her faith in Islam.
 163

11. A person cannot be said to have accepted Islam unless he knows the
basics of Islam. There are serious contradictions between the pleadings made in
the writ petition, the alleged papers filed along with the writ petition and the
statements on oath of the petitioners recorded on 3rd November, 2014.

12. Under the circumstances no relief can be granted to the petitioners

inasmuch as the writ petition itself has been filed suppressing the material facts
with regard to the alleged conversion and Nikah.--------------.

18. In view of the above discussions this writ petition deserves to be

dismissed.

19. Facts of Writ C No.-62587 of 2014 are as follows:

(ii) In paragraph No.5 of the writ petition the petitioners have stated as under:

“5. That petitioner No.1 has marriage with the petitioner No.2 on 14.11.2014
according toHindu Muslim Reeti Riwaz at District Buland Shahar. For kind
perusal A typed/photo copy of Nikahanama/Marriage Certificate of the
petitioners dated 14.11.14 is being filed herewith and marked as Annexure No.1
to this writ petition.”

(iii) In paragraph No.6 it is stated that the religion of petitioner no.1 was
converted from Hindu to Muslim on 13.11.2014 and now the name of petitioner
No.1 is Smt. Sonam Begum in place of Priyanka Kumari. It has been alleged
that both the petitioners are major.

(iv) In her voluntary statement on oath on 21.11.2014 before this Court, the
petitioner No.1 has stated as under:

Statement of Petitioner No.1 (Girl):-

^^;kph la0 1 lksue mQZ fiz;adk us le{k U;k;ky; l'kiFk c;ku fd;k fd vkt fnukWd 21&11&14
dks fuEufyf[kr c;ku ns jgh gwWA esjk uke lksue mQZ fiz;adk gSA esjs firk th dk uke Hkxoku flag
gSA og ,d d`"kd gSA og uxyk yks/kbZ xkao es [ksrh djrs gSA esjk fudkg dc gqvk] eq>s ;kn ugh
gSA

;kph la[;k 2] lksuw eq>s lkFk ysdj x;s Fks vkSj fdlh gkfQt ls esjk /keZ ifjorZu djk;k FkkA eq>s
;kn ugh gS fd lksuw us esjk /keZ ifjorZu dc djk;kA mUgksua s eq>ls fudkg djus ds fy;s esjk /keZ
ifjorZu djk;kA lksuw us tc eq>ls fudkg fd;k] ml le; esjs lkFk tks vU; O;fDr mifLFkr Fks]
mUgs eSa ugh tkurhA^^

(v)In his voluntary statement on oath before this Court on 21.11.2014, the
petitioner No.2 has stated as under:
 164
Statement of Petition No.2 (boy):

^^;kph la0 2 lksuw us le{k U;k;ky; l'kiFk c;ku fd;k fd vkt fnukWd 21&11&14 dks
fuEufyf[kr c;ku fn;kA

esjk uke lksuw gSA esjs firk th dk uke eqWa'kh [kku gSA eS xzke uxyk yks/kbZ] Fkkuk fncbZ] rglhy
vuwi'kgj ftyk cqyUn'kgj dk jgus okyk gwWA eS ukbZ dk dke djrk gWwA esjh ukbZ dh nqdku
cqyUn'kgj ds HkwM esa gSA eS djhc 7&8 gtkj :i;k eghuk dek ysrk gwWA eSus fiz;adk dk /keZ
ifjorZu fnukad 14 ;k 15 uoEcj 2014 dks djk;k FkkA lksue mQZ fiz;adk dk /keZ ifjorZu eSus
'kknh djus ds fy, djk;k FkkA buls eSus fudkg fnukad 14@15 uoEcj 2014 dks dj fy;kA
fudkg es eSus esgj dh jkf'k :0 5000@& j[kh FkhA fudkg ds le; esjs HkkbZ vkSj pkpk mifLFkr
FksA^^

(vi) Petitioner No.1 stated that she do not remember when religion conversion
and Nikah took place. She stated that petitioner No.2 b®ought her to one Sri
Hafiz and got converted her religion and she does not remember that when her
religion was converted. She stated that her religion was got converted by the
Petitioner No.2 only for the purpose of Nikah. Petitioner No.2 has stated that
he got converted the religion of petitioner No.1 on 14 or 15th November, 2014
to marry with her and the marriage was solemnized on 14/15th November, 2014
in presence of his brother and uncle. Thus, the religion conversion of petitioner
No.1 does not appear to be voluntary as the religion was got converted by the
petitioner No.2 and that too merely for the purposes of Nikah. The petitioner
No.1 has stated that she does not remember when her religion was converted or
when Nikah took place while the petitioner No.2 stated that it was done on 14 or
15th November, 2014. In paragraph No.5 of the writ petition it has been alleged
that the conversion took place on 13th November, 2014 and Nikah took place
on 14th November, 2014 as per Hindu Muslim Reet Riwaz. In the alleged
Nikahanama filed as Annexure No.1 there is no whisper that Nikah took place
as per Hindu Muslim Customs.

(vii) Thus, the averments made in the writ petition appears to be false and
misleading in view of the alleged Nikahanama and the voluntary statement on
oath given by the petitioners on 21st November, 2014 before this Court, which
disentitle them for any relief under Article 226. The principles laid down by
Hon'ble Supreme Court on these aspects have already been mentioned in
paragraph No. 12 to 15 above.

20. In view of the above discussions this writ petition also deserves to be
dismissed.

21. The facts of Writ-C No. 60499 of 2014 are as under:

 165

(i) This writ petition has been filed praying for a writ order or direction in the
nature of mandamus to the respondents not to disturb peaceful married life of
the petitioners.
(ii) It is alleged that the religion of petitioner No.1 girl who is allegedly about
19 years old was converted on 27.10.2014 as per Sanad Qubooliyat Islam
allegedly issued by Sri Mohd. Sayyed Alam Madarsa Islamia Faizul Uloom,
Kuparganj Kanpur Nagar, a copy of which has been filed as Annexure-4 to the
writ petition. It is alleged in paragraph No.2 of the writ petition that marriage
was solemnized as per muslim customs on 7.11.2014 in presence of Kaji at
Kanpur Nagar. Petitioner No.1 is shown to be resident of village Atursai, P.S.
Kunda, Tehsil Kunda, District Pratapgarh while petitioner No.2 has disclosed
himself to be resident of Kanpur Nagar. In the writ petition it has not been
disclosed that where the alleged Nikah took place at Kanpur Nagar.

(iii) On 13.11.2014 both the petitioners offered to record their statements and
their statements were recorded in open court in presence of learned counsel for
the parties, which are reproduced below:

Statement of Petition No.1 (Girl):

;kph la0&1 us le{k U;k;ky; l'kiFk c;ku fd;k fd vkt fnukdW 13&11&14 dks fuEufyf[kr
c;ku ns jgh gwWA

ejsk uke vk;lk csxe mQZ vuhrk fo'odekZ esjs firk th dk uke Jh f'ko lju yky gSA oks dq.Mk
izrkix< esa jgrs gSaA
eaS ch0,0 rd i<h+ gwWA esjk /keZ ifjorZu eks0 lyhe us djok;k Fkk A ;s /keZ ifjorZu Jh lyeku ds
lkFk 'kknh djokus ds fy, djok;k FkkA
esjk fudkg lyeku us dpgjh] esa djok;k A fudkg esa D;k gqvk eq>s ekywe ugha A eq>s bLyke ds
ckjs esa irk ugha gSA

Statement of Petitioner No.2 (boy)

^^;kph l0a &2 us le{k U;k;ky; l'kiFk c;ku fd;k fd vkt fnukdW 13&11&14 dks fuEufyf[kr
c;ku ns jgk gwWA

ejsk uke lyeku iq= tCckn gqluS ] fuoklh e0a u0a 83@209 twgh [kqnZ ijeiqjok dkuiqj gSA
vuhrk us fudkg ds fy;s /keZ ifjorZu djk;k FkkA ;g /keZ ifjorZu esjs ] esjs HkkbZ o odhy lkgc o
ekSykuk lkgc dh mifLFkfr esa gqvk Fkk ;g fdl rkjh[k dks gqvk eq>s ugha ekyweA eSaus vuhrk ls
/keZ ifjorZu ds ckn fudkg dj fy;kA

esjh tUefrfFk 13&3&1991 gSA fudkgukesa esa esgj dh jkf'k 21000@&:0 fy[kh x;h gSA
;kfpdk ds lyaXu 1 us lun fudkgukek fgUnh VªkUly'sku dks i<d+j dgk fd ;g :0 38216 esgj
dh jkf'k fcuk esjh lgefr ds fy[kh x;h gS mnZw esa fy[ks dfFkr fudkgukek tks ;kfpdk l0a &1 gS
dks ns[kdj dgk fd fudkgukesa esa egsj dh jkf'k ugha fy[kh gS rks Hkh ;g ekQ dh tk ldrh gSA
esjk oksVj vkbZ0Mh0 dkMZ tks fnukdW 19&4&2014 dks cuk gS esa esjh tUefrfFk 13 ekpZ 1989 gSA^^
 166

(iv) Petitioner No.1 has stated that her religion was got converted by the
petitioner No.2 for marriage. This position has also been admitted by the
petitioner No.2 in his statement. The petitioner No.1 has shown her total
unawareness that what happened in the alleged Nikah. She stated that petitioner
No.2 did nikah in Kachehari. The petitioner No.2 although stated that he got the
religion of petitioner No.1 converted in presence of his brother, counsel and
Maulana but he did not know the date on which he got her religion converted.

(v) Perusal of the voluntary statement given on oath by the petitioners in the
open Court in presence of learned counsel for the parties clearly shows that the
averments made in the writ petition with regard to conversion and Nikah are
based on suppression of facts and are misleading. The petitioner No.1 has not
stated that she renounced Hindu religion or embraced Islam of her own freewill.
Instead she stated that she does not know about Islam.

(vi) The petitioners have not approached this Court with clean hands, clean
mind and clean heart.

22. On these facts it is evident that the writ petition is based on suppression
of material facts and misleading averments and therefore it deserves to be
dismissed.

23. The facts of Writ C No. 57068 of 2014 are as under:

(iii) It is stated in paragraph 11 of the writ petition that on 23 rd September, 2014

petitioner No.1 who is resident of district Deoria appeared before Maulvi Niyaz
Ahmad of Madrasa Mirquatul Uloom, Mau Nath Bhanjan, District Mau and
embraced Islam. It is stated in paragraph No.13 of the writ petition that
thereafter Nikah was solemnized on 24th September, 2014 at Mau.

(iv) In her voluntary statement on oath on 31.10.2014 before this Court,

the petitioner No.1 has stated as under:

^^ujw tgkW csxe mQZ vatyh feJk ,oa ,d vU; cuke LVsV vkQ ;w0ih0 ,oa vU; ;kph l0a 1
vatyh feJk le{k U;k;ky; l'kiFk c;ku fd;k &

Jh vf[kys'k feJk esjs ikik dk uke gSA ;g nosfj;k esa jgrs gaS eSa bUgha ds lkFk jgrh FkhA
eSa b.Vj rd i<h+ gqbZ gwWA eSa bLyke /keZ ds ckjs esa dqN ugha tkurh gWwA fn0 23 flrEcj 2014 dks
esjk /keZ ifjorZu eks0 lyhe ;kph la0 2 ds ?kj ij djk;k x;k FkkA tc ;g /keZ ifjorZu djk;k
x;k rc eSa vyx dejs esa cSBh Fkh vkSj ckgj ekSyoh futke vgen cSBs Fks mlh le;
 167

fudkg gks x;k Fkk ekSyoh lkgc us djk;k FkkA Jh eks0 lyhe lkM+h dk C;kikj djrs gSaA 'kknh
djus ds fy, ;g /keZ ifjorZu gqvk FkkA^^

(v) In his voluntary statement on oath on 31.10.2014 before this Court, the
petitioner No.2 has stated as under:

^^ejsk uke eks0 lyhe gSA esjs firk dk uke fjtoku vgen gSA eSa em ftys dk jgus okyk gWwA eSa
lkMh+ dk C;kikj djrk gwWA eSa vkB eghus ls vtayh feJk dks tkurk gWaWAw og 5 flrEcj 2014 dks
em vkbZ FkhA budk /keZ ifjorZu o fudkg eSaus vius ?kj esa gh djk;k FkkA ml le; esjs ?kj
ifjokj ds yksx FksA budk /keZ ifjorZu o fudkg eSaus igyh ckj 10 flrEcj dks ,oa nwljh ckj 23
flrEcj lu 2014 dks djk;k FkkA O;kikj ls esjh vkenuh yxHkx 15&20 gtkj :0 izfrekg gSA eaS
i<+k fy[kk ugh gwWA^^

(vi) It is relevant to note that earlier the petitioners have filed a Writ C No.
51086 of 2014 which was dismissed on 22nd September, 2014 in the absence of
any cogent proof of religion conversion of petitioner No.1. The order dated
22.9.2014 passed in writ C No. 51086 of 2014 is reproduced below:
“Heard learned counsel for the petitioners, learned Standing Counsel and
perused the record.
The petitioners have preferred this writ petition for a direction upon the
respondents not to harass or interfere in the marital life of the petitioner nos. 1
and 2.
From perusal of the record, it transpires that no cogent proof has been filed by
the learned counsel for the petitioners with regard to conversion of the
Petitioner No. 1 into Muslim religion according to the procedure provided in
Mohammedan Law. In view of the above, I do not see any justification to
interfere in the matter. The writ petition is, accordingly, dismissed at this
stage.”

(vii) Thus there was no cogent proof of religion conversion of Petitioner No.1 as
on 22nd September, 2014 when the above noted writ petition was dismissed
which was filed for the relief that the respondents be directed not to harass and
interfere in the married life of the petitioners. Thus the aforesaid writ petition
was filed by the petitioners alleging themselves to be married couple.

(viii) Now the present writ petition has been filed alleging that the religion of
the petitioner No.1 was converted on 23rd September, 2014 and Nikah was
solemnized on 24th September, 2014. In his voluntary statement on oath the
petitioner No.2 stated before this Court on 31st October, 2014 that he knows the
petitioner No.1 since last 8 months and he got her religion converted at his
home in presence of his family members and also married with her firstly on
10th September, 2014 and secondly on 23rd September, 2014. The statements
so given and the averments made in the writ petition as well as the earlier writ
 168

petition No. 51086 of 2014 are self contradictory. As per allegation made in
Writ Petition No. 51086 of 2014 the alleged conversion took place on 8th
September, 2014 and the alleged Nikah took place on 12th September, 2014
while as per the averments made in this writ petition the conversion and Nikah
took place on 22nd September, 2014 and 24th September, 2014 respectively.
While as per voluntary statement on oath given by the petitioner No.2 on 31st
October, 2014 he got converted the religion of petitioner No.1 in presence of his
family members on 10th September, 2014 for the first time and on 23rd
September, 2014 for the second time and also solemnized Nikah with her twice
i.e. on 10th September, 2014 and on 23rd September, 2014.

(ix) In her voluntary statement on 31st October, 2014 petitioner No.1 has stated
that she does not know anything about Islam and her religion was got converted
by the petitioner No.2 at his residence to marry with her. The aforenoted facts
and circumstances clearly indicate that the writ petition has been filed
suppressing material facts of the case and making misleading averments.

(x) On 29th October, 2014 this Court passed an order directing the petitioners to
file their personal affidavit explaining the contradictions between the averments
made in the earlier writ petition and the present writ petition. Petitioners filed a
joint affidavit dated 31st October, 2014 in which it is stated that the first Nikah
held on 10th September, 2014 was discarded by this Court and, as such, the
petitioner No.1 embraced Islam on 23rd September, 2014 and second Nikah
was performed on 24th September, 2014. Perusal of the order dated 22.9.2014
passed in Writ Petition No. 51086 of 2014 as reproduced above shows that the
writ petition was dismissed in the absence of any cogent proof of conversion of
the petitioner No.1 into Muslim religion.

(xi)As per own voluntary statement on oath by petitioner No.2 he got the
religion of petitioner No.1 converted at his home at Mau in presence of his
family members. In her voluntary statement on oath on 31st October, 2014
before this Court the petitioner No.1 stated that she knows nothing about Islam.
She also stated that her religion was got converted by the petitioner No.2 at his
home on 23rd September, 2014 and Nikah was performed by him through
Maulvi. The religion was converted merely for marriage. The aforesaid position
stated by the petitioner No.1 was not disputed by petitioner No.2.

(xii) The totality of the facts and circumstances of the case, as noted above,
clearly shows suppression of material facts and making false and misleading
averments in the writ petition as aforenoted.
 169

(xiii) In view of these facts the writ petition deserves to be dismissed.

24. The facts of writ petition No. 58910 of 2014 are as under.

(i) This writ petition has been filed praying for a writ, order or direction in the
nature of mandamus commanding the respondents not to interfere in the
peaceful living and enjoying married life by the petitioners.
(ii) It is stated in the writ petition that the petitioner No.1 girl is aged about 24
years as per high school examination certificate. No birth certificate of
petitioner No.2 has been filed.
(iii) In paragraph No.8 of the writ petition the petitioners have stated that
petitioner No.1 is the married wife of the petitioner no.2 and the marriage of the
petitioner no.1 with petitioner 2 has taken place on 1.8.2014.
(iv) In paragraph No.12 of the writ petition the petitioners have stated that
urgency of the matter in summer vacation is that the local police in connivance
of the father of the petitioner No.1 is harassing the petitioners and the
petitioners made a representation before the Respondent No.2 about harassment
caused to them but nothing was done till date.
(v) In paragraph No.17 of the writ petition the petitioners have stated that
petitioner No.2 is aged about 23 years and he was married more than two
months before the date of filing of writ petition with petitioner 1 and he is
industrial labour and his monthly income is Rs. 7,000.
(vi) In her voluntary statement on oath on 7.11.2014 before this Court, the
petitioner No.1 has stated asunder:

^^esjk uke lksuh mQZ lkfc;k] iRuh lxhj vgen gSA esjs firk dk uke jes'k pUnz gSA eSa bl
;kfpdk esa ;kfpuh la0 1 gwWA eSa 217 lEHky xsV pankSlh ftyk lEHky dh jgus okyh gWwA
eS l'kiFk c;ku djrh gwW fd&
esjs firk th esFa kk QSDVªh esa ukSdjh djrs gSA eSa Lukrd dh Nk=k gwWA eSa bLyke /keZ ds ckjs esa ugha
tkurh gwWA eq>s 'kknh ds fy, bLyke /keZ dqcqy djok;k x;kA eq>s lxhj vgen ;kph la0 2 ds
mifLFkfr esa bLyke /keZ dqcqy djok;k x;kA ;g dqcqy ukek 15 tqykbZ 2014 dks gqvkA lxhj
vgen th us esjs lkFk fudkg 1 vxLr 2014 dks fdlh dkth ls djk;kA mUgksua s ;g fudkg
ekSgEen gqlSu ds ?kj ij djok;kA eq>s ugha ekyew fd fudkgukek tks ;kfpdk layXud la0 2 gS ds
vuqlkj fudkg 10 vxLr 2014 dks djok;k x;k A lxhj vgen 'kh'ks dk dke etnwjh ij djrs
gaSA ^^

(vii) In his voluntary statement on oath on 7.11.2014 before this Court, the
petitioner No.2 has stated as under:

^^esjk uke &lxhj vgen gS] esjs firk th dk uke vCnqy gQht gSA eSa bl ;kfpdk esa ;kph la0 2
gwWA
eSa ch0,0 vfUre o"kZ dk Nk= gwWA
eS l'kiFk c;ku djrk gwW fd&
 170

esjs firk th [ksrh dk dk;Z djrs gSA eSa 'kh'ks ij fMtkbu dk dke djrk gwWA eSaus ftl dkth ls
lksuh mQZ lkfc;k ds lkFk viuk fudkg djok;k Fkk] mldk uke ugh ekywe gSA eSaus ;g fudkg
vius nkLsr ekSgEen gqlSu ds ?kj ij fd;k FkkA dkth us fudkgukesa esa fudkg dh rkjh[k xyr ugha
fy[kk gksxkA lksuh dk /keZ ifjorZu 'kknh ds fy, gqvk FkkA eaS bLyke /keZ ds ckjs esa T;knk ugha
tkurk gwWA eSa flQZ bruk tkurk gWw fd uekt i<+uk pkfg,] >wB ugh cksyuk pkfg, rFkk /kks[kk ugh
nsuk pkfg,A^^

(viii) From the above noted facts it is evident that the petitioner No.1 has stated
that she knows nothing about Islam. Petitioner No.2 got converted her religion
for Nikah on 15th July, 2014. Petitioner No.2 has stated that the religion of
petitioner No.1 was converted for marriage purpose and he performed the Nikah
at the residence of his friend Mohd. Husain by a Qazi whose name he does not
know.

(ix)Affidavit accompanying the writ petition was sworn on 28th October, 2014
and writ petition was presented on 3rd November, 2014 without any proof of
alleged conversion. In paragraph 12 it has been stated by personal knowledge
that the urgency of matter in summer vacation is that the local police in
connivance of the father of the petitioner No.1 is harassing the petitioners
and the petitioners made representation before the Respondent No.2 about
their harassment but nothing was done till date. It is about four months
subsequent to the summer vacation that this writ petition was filed.

(x) The totality of the circumstances clearly shows that misleading averments
have been made in the writ petition. The petitioner No. 2 got converted the
religion of petitioner No.1 merely for marriage purposes. Petitioner No.1 stated
that she does not know about Islam. The averments made in paragraph No. 12
could not be explained by the petitioners even though it was specifically pointed
out to them. This also indicates that the writ petition is based on suppression of
facts and misleading averments.

25. In view of the above discussions, the writ petition deserves to be

dismissed.

26. A common feature in all these writ petitions are that petitioner No.2 (boy)
in each of the writ petitions have got converted the religion of petitioner No.1
girl only for marriage. The petitioner No.1 girl in each of the writ petitions have
stated that their religion was got converted by the petitioner No.2 for marriage.
They have not stated that they have renounced ''Hindu' religion. Thus an
interesting question based on submissions of learned counsel for the parties
arises as under:
 171

“Whether conversion of religion of a Hindu girl at the instance of a Muslim

boy, without any knowledge of Islam or faith and belief in Islam and
merely for the purpose of Marriage (Nikah) is valid?”

What is religion

27. There is no consensus as to the definition of the word ―Religion‖.

Etymologically, the expression ―religion‖ is the combination of two Latin
words; ―Re‖ meaning back and ―ligare‖ meaning to bind. It is ordinarily
understood to mean some system of faith and practice resting on the idea of the
existence of God, the creature and ruler to whom his creature owe obedience
and love. It is founded on reverence of God and expectation of future rewards
and punishments. It is system of divine faith and worship. The quest of man for
God is the foundation for religion and its essential function is ―the search for
God and the finding of God‖.

28. In the case of A.S. Narayana Deekshitulu Vs. State of A.P. and others
(1996) 9 SCC 548 Hon'ble Supreme Court considered the meaning of the word
“Religion” and Article 25and 26 of the Constitution and held as under:
“85.Articles 25 and 26 deal with and protect religious freedom. Religion as
used in these articles must be construed in its strict and etymological sense.
Religion is that which binds a man with his Cosmos, his Creator or super
force. It is difficult and rather impossible to define or delimit the expressions
'religion' or “matters of religion” used in Articles 25 and 26. Essentially,
'religion' or “matters of religion” used in Articles 25 and 26. Essentially,
religion is a matter of personal faith and belief of personal relations of an
individual with what he regards as Cosmos, his Maker or his Creator which,
he believes, regulates the existence of insentient beings and the forces of the
universe. Religion is not necessarily theistic and in fact there are well-known
religions in India itself like Buddhism and Jainism which do not believe in the
existence of God. In India, Muslims believe in Allah and have faith in Islam;
Christians in Christ and Christianity; Parsis in Zoroastrianism; Sikhs in Guru
Granth Sahib and teachings of Guru Nanak Devji, its founder, which is a facet
of Hinduism like Brahmo Samaj, Arya Samaj etc.

86. A religion undoubtedly has its basis in a system of beliefs and doctrine
which are regarded by those who profess religion to be conducive to their
spiritual well-being. A religion is not merely an opinion, doctrine or belief. It
has outward expression in acts as well.
It is not every aspect of religion that has been safeguarded by Articles 25 and
26 nor has the Constitution provided that every religious activity cannot be
interfered with. Religion, therefore, cannot be construed in the context of
 172

Articles 25 and 26 in its strict and etymological sense. Every religion must
believe in a conscience and ethical and moral precepts. Therefore, whatever
binds a man to his own conscience and whatever moral or ethical principles
regulate the lives of men believing in that theistic, conscience or religious
belief that alone can constitute religion as understood in the Constitution
which fosters feeling of brotherhood, amity, fraternity and equality of all
persons which find their foothold in secular aspect of the Constitution.
Secular activities and aspects do not constitute religion which, brings under its
own cloak every human activity. There is nothing which a man can do, whether
in the way of wearing clothes or food or drink, which is not considered a
religious activity. Every mundane or human activity was not intended to be
protected by the Constitution under the guise of religion. The approach to
construe the protection of religion or matters of religion or religious practices
guaranteed by Article 25 and 26 must be viewed with pragmatism since by the
very nature of things, it would be extremely difficult, if not impossible, to define
the expression religion or matters of religion or religious belief or practice.
The religious freedom guaranteed by Articles 25 and 26, therefore, is intended
to be a guide to a community life and ordain every religion to act according to
its cultural and social demands to establish an egalitarian social order. Articles
25 and 26, therefore, strike a balance between the rigidity of right to religious
belief and faith and their intrinsic restrictions in matters of religion, religious
beliefs and religious practices and guaranteed freedom of conscience to
commune with his Cosmos, Creator and realise his spiritual self. Sometimes,
practices religious or secular, are inextricably mixed up. This is more
particularly so in regard to Hindu religion because under the provisions of
ancient Samriti, human actions from birth to death and most of the individual
actions from day to day are regarded as religious in character in one facet or the
other. They sometimes claim the religious system or sanctuary and seek the
cloak of constitutional protection guaranteed by Articles 25 and26. One, hinges
upon constitutional religious model and another diametrically more on
traditional point of view. The legitimacy of the true categories is required to be
adjudged strictly within the parameters of the right of the individual and the
legitimacy of the State for social progress, well-being and reforms, social
intensification and national unity. Law is a social engineering and an
instrument of social change evolved by a gradual and continuous process. As
Banjamin Cardozo has put it in his "Judicial Process", life is not a logic but
experience. History and customs, utility and the accepted standards of right
conduct are the forms which singly or in combination shall be the progress of
law. Which of these forces shall dominate in any case depends largely upon the
comparative importance or value of the social interest that will be, thereby,
impaired. There shall be symmetrical development with history or custom when
history or custom has been the motive force or the chief one in giving shape to
the
 173

existing rules and with logic or philosophy when the motive power has been
theirs. One must get the knowledge just as the legislature gets it from
experience and study and reflection in proof from life itself. All secular
activities which may be associated with religion but which do not relate or
constitute an essential part of it may be amenable to State regulations but what
constitutes the essential part of religion may be ascertained primarily from the
doctrines of that religion itself according to its tenets, historical background and
change in evolved process etc. The concept of essentiality is not itself a
determinative factor. It is one of the circumstances to be considered in
adjudging whether the particular matters of religion or religious practices or
belief are an integral part of the religion. It must be decided whether the
practices or matters are considered integral by the community itself. Though
not conclusive, this is also one of the facets to be noticed. The practice in
question is religious in character and whether it could be regarded as an integral
and essential part of the religion and if the Court finds upon evidence adduced
before it that it is an integral or essential part of the religion, Article 25 accords
protection to it. Though the performance of certain duties is part of religion and
the person performing the duties is also part of the religion or religious faith or
matters of religion, it is required to be carefully examined and considered to
decide whether it is a matter of religion or a secular management by the State.
Whether the traditional practices are matters of religion or integral and essential
part of the religion and religious practice protected by Articles 25 and 26 is the
question. Whether hereditary archaka is an essential and integral part of the
Hindu religion is the crucial question?‖ (Emphasis supplied by me)

29. Thus, although, it is difficult rather impossible to define or delimit

the expression “religion” yet essentially it is a matter of personal faith and
belief of personal relations of an individual with what he regards Cosmos,
his maker or Creator which, he believes, regulates the existence of
insentient beings and the forces of Universe. A religion undoubtedly has its
basis in a system of beliefs and doctrine which are regarded by those who
profess religion to be conducive to their spiritual well-being. It is a matter
of faith stemming from the depth of the heart and mind. It is a belief which
binds the spiritual nature of man to a super natural being. It is an object of
conscientious devotion, faith and pietism. Devotion in its fullest sense is a
consecration and denotes an act of worship. Faith in the strict sense
constitutes firm reliance on the truth of religious doctrines in every system
of religion.

Who is a Mahomedan
 174

30. As per the book Mulla's Principles of Mahomedan Law, 19th edition
Chapter II, any person who professes the Mahomedan religion, that is,
acknowledges (1) that there is but one God, and (2) that Mahomed is His
Prophet, is a Mahomedan. Such a person may be a Mahomedan by birth or he
may be a Mahomedan by conversion. It is not necessary that he should observe
any particular rites or ceremonies, or be an orthodox believer in that religion;
no Court can test or gauge the sincerity of religious belief. It is sufficient if he
profess the Mahomedan religion in the sense that he accepts the unity of God
and the prophetic character of Mahomed. Thus a non muslim who has
attained majority and is of sound mind may embrace 'Islam' by declaring
that he believes in the oneness of God and the prophetic character and that
Mahomedis his prophet. He shall be a Mahomedan if he professes the
Mahomedan religion in the sense that he accepts the unity of God and prophetic
character of Mahomed.

31. The word 'profess' was interpreted by Hon'ble Supreme Court in the case
of Punjabrao Vs. Dr. D.P. Meshram andothers AIR (1965) SC 1179 and held
as under:

"13. What cl. (3) of the Constitution (Scheduled Castes) Order, 1950
contemplates is that for a person to be treated as one belonging to a Scheduled
Caste within the meaning of that Order he must be one who professes either
Hindu or Sikh religion. The High Court, following its earlier decision in
Narayan Waktu v. Punjabrao, has said that the meaning of the pharase
"professes a religion" in the aforementioned provision is "to enter publicly
into a religious state" and that for this purpose a mere declaration by a person
that he has ceased to belong to a particular religion and embraced another
religion would not be sufficient. The meanings of the word "profess" have been
given thus in Webster's New World Dictionary: "to avow publicly, to make an
open declaration of ....... to declare one's belief in: as to profess Shrist. To accept
into a religious order" The meanings given in the Shorter Oxford Dictionary are
more or less the same. It seems to us that the meaning 'to declare one's belief in:
as to profess christ' is one which we have to bear in mind while construing the
aforesaid order because it is this which bears upon religious belief and
consequently also upon a change in religious belief. It would thus follow that a
declaration of one's belief must necessarily mean a declaration in such a way
that it would be known to those whom it may interest. Therefore if a public
declaration is made by a person that he has ceased to belong to his old
religion and has accepted another religion he will be taken as professing the
other religion. In the face of such an open declaration it would be idle to
enquire further as to whether the conversion to another religion was efficacious.
The word 'profess' in the Presidential Order appears to have been used in the
sense an open
 175

declaration or practice by a person of the Hindu for the Sikh religion. Where,
therefore, a person says, on the contrary that he has ceased to be Hindu he
cannot derive any benefit from the order." (Emphasis supplied by me)

32. Thus a person who accepts the oneness of God and the prophetic
character of Mahomed and that Mahomed is his prophet, is called a
Mahomedan.

Conversion of Religion

33. Conversion to another religion basically requires change of faith and

belief of personal relations of a major individual of sound mind by his free will,
with what he/she regards as Cosmos, his/her Maker or Creator, which he/she
believes, regulates the existence of insentients beings and the forces of
Universe.

34. Faith and belief in the unity of God and Mahomed to be his/her prophet is
the foundation to call a person of another religion that he embraced Islam.
Conversion to Islam makes the Muslim personal law applicable to such a
person.

When conversion bonafide

35. A conversion of religion by an individual to Islam can be said to be

bonafide if he/she is major and of sound mind and embraces Islam by
his/her own freewill and because of his/her faith and belief in the oneness of
God (Allah) and prophetic character of Mahomed. If a conversion is not
inspired by religion feeling and undergone for its own sake, but is resorted
merely with object of creating a ground for some claim of right or as a
device adopted for the purpose to avoid marriage or to achieve an object
without faith and belief in the unity of God (Allah) and Mahomed to be his
prophet, the conversion shall not be bonafide. In case of a religion
conversion there should be a change of heart and honest conviction in the
tenets of new religion in lieu of tenets of the original religion.

36. In the case of Rakeya Bibi v. Anil Kumar Mukherjee, ILR 1948 (2) Cal
119, the Division Bench of Calcutta High Court has observed as under:

"The question, however, stiff remains whether her conversion was a bona fide
one or a mere device adopted for the purpose of avoiding the marriage. Mr. Das,
who appeared for her, contended on the authority of certain observations made
by Ormond J. In the case of Ayesh Bibi v. Subodh chandra
 176

Chakrabariti. *ILR (1945) 2 Cal 405) : AIR 1949 Cal 436 that the question of
bona fides was wholly irrelevant and, further that no court could determine the
bona fides or otherwise of a person's change of faith. We entirely dissent from
those propositions. It may be that a court cannot test or gauge the sincerity of
religious belief, or that, where there is no question of the genuineness or a
peron's belief in a certain religion, a court cannot measure its depth or determine
whether it is an intelligent conviction or an ignorant and superficial fancy. But a
court can and does find the true intention of men lying behind their acts
and one certainly find from the circumstances of a case whether a
pretended conversion was really a means to some further end. We can see
no reason to hold that it is in the nature of things impossible for a court of
law to determine whether a conversion was bonafide. Nor can we agree
that the question of bonafides is immaterial. In the case of Skinner v. Skinner
(1897) ILR 25 Cal 537 the Privy Council, while referring to the possibility that
a change of religion on the part of both the spouses might have the effect of
altering rights incidental to the marriage, was careful to add the qualification
that such change must be made "honestly" and "without any intent to commit a
fraud upon the law" Indeed, it seeems to us to be elementary that if a
conversion is not inspired by religious feeling and undergone for its own
sake, but is resorted to merely with the object of creating a ground for
some claim of right, a court of law cannot recongise it as a good basis for
such claim but must held that no lawful foundation of the claim has been
proved. Where conversion gives a legal right, to go through a mock conversion
and set it up as a basis of that right is to commit a fraud upon the law. We are
clearly of opinion that where a party puts forward his conversion to a new faith
as creating a right in his favour to the prejudice of another, it is proper and
necessary for a court of law to enquire and find whether the conversion was a
bona fide one." Thus in case of a conversion there should be a change of
heart and honest conviction in the tenets of new religion in lieu of tenets of
the original religion. If a ceremony of conversion is gone into conscientiously
after such an honest conviction, then alone there is a conversion of faith or it
can be said that a person is professing another religion. In case of conversion
from one religion to another a strict proof is required and it cannot be easily
inferred. More so when a person converted denies even the factum of
conversion. As to whether there in fact a conversion or not must depend on facts
and circumstances of each case and not general rule can be laid down in that
behalf.‖

37. In the case of Dr. Abdur Rahim Undre Vs. Smt. Padma Abdur Rahim
Undre AIR 1982 Bombay 341, the Bombay High Court considered the question
of conversion and held as under:
 177

―27. It is a well known principle of civil law that a person born into or following
one religion continues to belong to such religion subject to conversion to
another religion. Conversion to another religion basically requires change of
faith. To say the least it is a matter of conviction. According to Mulla's
Principle of Mohammedan Law any person who professes Mohammedan
religion that is, he acknowledges that there is but one God and that Mohammad
is his prophet is a Mohammedan. Such a person may be a Mohammedan by
birth or he may be a Mohammedan by conversion. It is not necessary that he
should observe any particular rites or ceremony to be an orthodox believer in
the religion, no Court can test or gauge sincerity of religious belief. It is
sufficient if he professes Mohammedan religion in the sense that he accepts
prophetic grant of Mohammedan (section 19, Chapter 2, page 19 of Mulla's
Principles of Mohammedan Law). Thus the real test is of professing
Mohammedan religion. As to when is the true import of the term profess fell
for consideration of the Supreme Court in Punjabrao V. D. P. Meshram, of the
said decision the Supreme Court has observed as under:

"13. What cl. (3) of the Constitution (Scheduled Castes) Order, 1950
contemplates is that for a person to be treated as one belonging to a Scheduled
Caste within the meaning of that Order he must be one who professes either
Hindu or Sikh religion. The High Court, following its earlier decision in
Narayan Waktu v. Punjabrao, has said that the meaning of the pharase
"professes a religion" in the aforementioned provision is "to enter publicly in to
a religious state" and that for this purpose a mere declaration by a person that he
has ceased to belong to a particular religion and embraced another religion
would not be sufficient. The meanings of the word "profess" have been given
thus in Webster's New World Dictionary: " to avow publicly, to make an open
declaration of ....... to declare one's belief in: as to profess Shrist. To accept into
a religious order" The meanings given in the Shorter Oxford Dictionary are
more or less the same. It seems to us that the meaning 'to declare one's belief
in: as to profess Christ' is one which we have to bear in mind while construing
the aforesaid order because it is this which bears upon religious belief and
consequently also upon a change in religious belief. It would thus follow that a
declaration of one's belief must necessarily mean a declaration in such a way
that it would be known to those whom it may interest. Therefore if a public
declaration is made by a person that he has ceased to belong to his old religion
and has accepted another religion he will be taken as professing the other
religion. In the face of such an open declaration it would be idle to enquire
further as to whether the conversion to another religion was efficacious. The
word 'profess' in the Presidential Order appears to have been used in the sense
an open declaration or practice by a person of the Hindu for the Sikh religion.
Where, therefore, a person says, on
 178

the contrary that he has ceased to be Hindu he cannot derive any benefit from
the order."

Thus it appears that for a conversion there should be a declaration of one's belief
and the said declaration should be in such a way that is should be known to
those whom it may interest. If a public declaration is made by a person that he
has ceased to belong to one religion and is accepting another religion, he will be
taken as professing the other religion.

28. In Rakeya Bibi v. Anil Kumar Mukherjee, ILR 1948 (2) Cal 119, Calcutta
High Court has an occasion to consider this aspect of the matter in the context
of conversion to Islam. Having held that the plaintiff in that case offered herself
for conversion and went through the necessary formalities, the Calcutta High
Court observed as under:

"The question, however, still remains whether her conversion was a bona fide
one or a mere device adopted for the purpose of avoiding the marriage. Mr. Das,
who appeared for her, contended on the authority of certain observations made
by Ormond J. In the case of Ayesh Bibi v. Subodh chandra Chakrabariti, (ILR
(1945) 2 Cal 405) : AIR 1949 Cal 436 that the question of bona fides was
wholly irrelevant and, further that no court could determine the bona fides or
otherwise of a person's change of faith. We entirely dissent from those
propositions. It may be that a court cannot test or gauge the sincerity of
religious belief, or that, where there is no question of the genuineness or a
person's belief in a certain religion, a court cannot measure its depth or
determine whether it is an intelligent conviction or an ignorant and superficial
fancy. But a court can and does find the true intention of men lying behind their
acts and one certainly find from the circumstances of a case whether a pretended
conversion was really a means to some further end. We can see no reason to
hold that it is in the nature of things impossible for a court of law to determine
whether a conversion was bona fide. Nor can we agree that the question of bona
fides is immaterial. In the case of Skinner v. Skinner (1897) ILR 25 Cal 537 the
Privy Council, while referring to the possibility that a change of religion on the
part of both the spouses might have the effect of altering rights incidental to the
marriage, was careful to add the qualification that such change must be made
"honestly" and "without any intent to commit a fraud upon the law" Indeed, it
seems to us to be elementary that if a conversion is not inspired by religious
feeling and undergone for its own sake, but is resorted to merely with the object
of creating a ground for some claim of right, a court of law cannot recognize it
as a good basis for such claim but must held that no lawful foundation of the
claim has been proved. Where conversion gives a legal right, to go through a
mock conversion and set it up as a basis of that right is to commit a fraud upon
the
 179

law. We are clearly of opinion that where a party puts forward his conversion
to a new faith as creating a right in his favour to the prejudice of another, it is
proper and necessary for a court of law to enquire and find whether the
conversion was a bona fide one." Thus in case of a conversion there should be a
change of heart and honest conviction in the tenets of new religion in lieu of
tenets of the original religion. If a ceremony of conversion is gone into
conscientiously after such an honest conviction, then alone there is a conversion
of faith or it can be said that a person is professing another religion. In case of
conversion from one religion to another a strict proof is required and it cannot
be easily inferred. More so when a person converted denies even the factum of
conversion. As to whether there in fact a conversion or not must depend on facts
and circumstances of each case and not general rule can be laid down in that
behalf."
(Emphasis supplied by me)

38. In the case of Dilbar Habib Siddiqui Vs. State of U.P. and others 2010
(69) ACC 997(DB) this Court has held as under:

―6. The primary question which is to be adjudicated by us is as to whether the

impugned FIR can be quashed or not on the peculiar facts of the writ petition?
A perusal of the contents of the impugned FIR indicates that Khushboo Jaiswal
is alleged to have been abducted by the petitioner three months prior to the
lodging of it. By his dexterous manuvours and deceit petitioner had succeeded
in not getting the FIR registered against him for all this period. It is informant's
allegation that petitioner had abducted her daughter. Writ Petition further
reveals that Khushboo never converted herself into Islam. There is no document
regarding her such conversion. In our above conclusion we are fortified by
the fact that in the affidavit and application filed by Khusboo herself
subsequent to her alleged contract marriage she has described herself as
Khushboo and not by any Islamic name. As Khushboo she could not have
contracted marriage according to Muslim customs. In those referred documents
she has addressed herself as Khushboo Jaiswal daughter of Rajesh Jaiswal.
Thus what is conspicuously clear unerringly without any ambiguity is that
Khushboo Jaiswal never converted and embraced Islam and therefore her
marital tie with the petitioner Dilbar Habib Siddiqui is a void marriage
since the same is contrary to Islamic dicta and tenets of Holy Quran. It is
recollected here that Nikah i.e. marriage in pre- Islamic Arabia, meant different
forms of sex relationships between a man and a woman. Prophet Mohammed
brought about a complete change in the position of woman in society through
Holy Quran, which is the primary and basic source of Islamic Law.
In this respect we can do no better than to refer the verses of Holy Quran.
Sura 2 Ayat 221 of The Holy Quran as is mentioned in the text
 180

book of Mohammedan Law by I. Mulla, Ist Edition, 2nd reprint, at page

162, provides as follows:-
"Do not marry unbelieving women until they believe...... Nor marry your
girls to unbelievers until they believe". Here a believing women is referred
to such a women who has embraced Islam and has faith in Prophet
Mohammed. Marriage in Muslim law is not only a ritual but is also "a
devotional act" as Dr.M.U.S. Jang referred it in his book 'Desertion on the
Development of Muslim Law in British India' (page 1.2.). I. Mulla in his
abovetext book at page 166 has written thus:-"Koranic injunctions recognise in
Islam, marriage as the basis of society. Though it is a contract, it is also a sacred
covenant. Temporary marriages are forbidden. Marriage as an institution leads
to the uplift of man and is a means for the continuance of human race."
8. Thus for a valid Muslim marriage both the spouses have to be Muslim. In
the present writ petition this condition is not satisfied as the writ petition lacks
credible and accountable material in this respect on which reliance can be
placed.
Coming to another limb of argument raised by counsel for the petitioner that a
muslim man is entitled to marry four time, we once again revert back to
recognised treatises. We find that Sura 4 Ayat 3 of The Holy Quran provides for
giving due care and provisions for a Muslim women. The said Ayat, as is
referred to in the treatise by I.Mulla, is referred to below:-
"(vi) Number of wives- If ye fear that ye shall not be able to deal justly with the
orphans orphan wives and their property; marry woman of your choice, two or
three or four; But if you fear that ye shall not be able to deal justly (with them),
then only one...........that would be more suitable to prevent you from doing
injustice."

From the perusal of above Ayats, it is abundantly clear that bigamy is not
sanctified unless a man can do justice to orphans. The said Ayat mandates all
Muslims men to 'deal justly with orphans and then they can marry women of
their choice two or three or four but if they fear that they will not be able to deal
justly with them then only one. We are of the view that such a religious mandate
has been given to all the Muslims for a greater social purpose. If a Muslim man
is not capable of fostering his wife and children then he cannot be allowed the
liberty to marry other women as that will be against the said Sura 4 -Ayat-3.
This aspect of the matter should not vex our mind further as the same came up
before the apex court as well in Javed And Others versus State of Haryana: AIR
2003 SC 3057 and therefore we conclude this aspect of the submission by
referring to the words of the apex court in that decision, which are as follows:-
"The Muslim Law permits marrying four women. The personal law nowhere
mandates or dictates it as a duty to perform four marriages. No religious
 181

scripture or authority provides that marrying less than four women or

abstaining from procreating a child from each and every wife in case of
permitted bigamy or polygamy would be irreligious or offensive to the dictates
of the religion. The question of the impugned provision of Haryana Act being
violative of Art. 25 does not arise."

39. As per the Holly Quran translated by Abdullah Yusuf Ali (published by
Nusarat Ali Nasari for Kitab Bhawan, New Delhi in 1994), Sura II Ayat 221 of
the Holy Quran mandates as under:-
“Do not marry
Unbelieving women, Until they believe:
A slave woman who believes
Is better than an unbelieving woman,
Even though she allure you.
Nor marry (your girls)
To unbelievers until
They believe:
A man slave who believes
Is better than an unbeliever,
Even though he allure you.
Unbelievers do but
Beckon you to the Fire.
But God beckons by His Grace
To the Garden (or Bliss).
And forgiveness,
And forgiveness,
And makes His Signs
Clear to mankind:
That they may Celebrate His Praise.”

40. In the case of Rev. Stainislaus Vs. State of Madhya Pradesh and
others Vs. State of Madhya Pradesh 1977 (1) SCC 677 Para 20 Hon'ble
Supreme Court while considering the constitutional validity of M.P. Dharma
Swantantraya Adhiniyam, 1968 observed as under:
“We have no doubt that it is in this sense that the word 'propagate' has been
used in Article 25 (1), for what the Article grants is not the right to convert
another person to one's own religion, but to transmit or spread one's religion by
an exposition of its tenets. It has to be remembered that Article 25 (1)
guarantees “freedom of conscience” to every citizen, and not merely to the
followers of one particular religion, and that, in turn postulates that there is no
fundamental right to convert another person to one's own religion because if a
person purposely undertakes the conversion of another person to his religion,
as distinguished from his effort to transmitor spread the tenets of
 182

his religion, that would impinge on the “freedom of conscience” guaranteed

to all the citizens of the country alike.”

41. In the case of Lily thomas v. Union of India 2000 (6) SCC 224 in
paragraph Nos. 7,8,37,38 and 40 the Hon'ble Supreme Court has held as under:
―7. It may be stated that on 23.4.1990 when Writ Petition (C) No. 1079 of 1989
and Writ Petition (C) No. 347 of 1990 were taken up together, the Court had
passed the following order: ―Issue notice to Respondent 3 returnable within
twelve weeks in both the writ petitions. Learned counsel for the petitioners in
the writ petitions, after taking instructions, states that the prayers in both the
writ petitions are limited to a single relief, namely, a declaration that where a
non-Muslim male gets converted to the Muslim faith without any real
change of belief and merely with a view to avoid any earlier marriage or to
enter into a second marriage any marriage entered into by him after
conversion would be void.”

8. Thus, in view of the pleadings in Sushmita Ghosh case and in view of the
order passed by this Court in the writ petitions filed separately by Smt. Sarla
Mudgal and Ms. Lily Thomas, the principal question which was required to
be answered by this Court was that where a non-Muslim gets converted to
the “Muslim” faith without any real change of belief and merely with a
view to avoid an earlier marriage or to enter into a second marriage,
whether the marriage entered into by him after conversion would be
avoid.

37 In any case, as pointed out earlier in the instant case, the conversion is only
feigned, subject to what may be found out at the trial.

38 Religion is a matter of faith stemming from the depth of the heart and
mind. Religion is a belief which binds the spiritual nature of man to a
supernatural being; it is an object of conscientious devotion, faith and
pietism. Devotion in its fullest sense is a consecration and denotes an act of
worship. Faith in the strict sense constitutes firm reliance on the truth of
religious doctrines in every system of religion. Religion, faith or devotion
are not easily interchangeable. If the person feigns to have adopted another
religion just for some worldly gain or benefit, it would be religious bigotry.
Looked at from this angle, a person who mockingly adopts another religion
where pluralityof marriage is permitted so as to renounce the previous marraige
and desert the wife, he cannot be permitted to take advantage of his
exploitation as religionis not a commodity to be exploited. The institution of
marriage under every personal law is a sacred
 183

institution. Under Hindu Law, Marriage is a sacrament. Both have to be

preserved.

40. I also agree with Brother Sethi, J. that any direction for the enforcement of
Article 44 of the Constitution could not have been issued by only one of the
Judges in Sarla Mudgal's case. In fact, Sarla Mudgal's case was considered by
this Court in Ahmedabad Women Action Group & Ors. Vs. Union of India
(1997) 3 SCC 573 and it was held that the question regarding the desirability of
enacting a Uniform Civil Code did not directly arise in Sarla Mudgal's case. I
have already reproduced the order of this Court passed in Sarla Mudgal's case
on 23.4.1990 in which it was clearly set out that the learned counsel appearing
in that case had, after taking instructions, stated that the prayers were limited to
a single relief, namely, a declaration that wherea non-Muslim male gets
converted to the Muslim faith without any real change of belief and merely
with a view to avoid any earlier marriage or to enter into a second
marriage, any marriage entered into by him after conversion would be
void.”

42. In view of the above discussions, the principles of conversion of religion

and bonafide conversion of religion to Islam may be briefly summarized as
under:
(i) Conversion to another religion basically requires change of faith and
belief of personal relations of an individual with what he regards as Cosmos,
his Maker or his Creator, which he believes, regulates the existence of
insentients beings and the forces of Universe.

(ii) A conversion of religion by an individual to Islam can be said to be

bonafide if he/she is major and of sound mind and embraces Islam of
his/her own freewill and because of his/her faith and belief in the oneness of
God (Allah) and prophetic character of Mahomed. If a conversion is not
inspired by religion feeling and under gone for its own sake, but is resorted
merely with object of creating a ground for some claim of right or as a
device adopted for the purpose to avoid marriage or to achieve an object
without faith and belief in the unity of God (Allah) and Mahomed to be his
prophet, the conversion shall not be bonafide.

(iii) In case of a religion conversion there should be a change of heart and

honest conviction in the tenets of new religion in lieu of tenets of the original
religion.

(iv) Religion, faith or devotion are not easily interchangeable. If a person

feigns to have adopted another religion just for wordly gain or benefit, it
would be religious bigotry.
 184

(v) If a person purposely undertakes the conversion of another person to his

religion, as distinguished from his effort to transmit or spread the tenets of his
religion, that would impinge on the “freedom of conscience” guaranteed to all
the citizens of the country alike under Article 25 of the Constitution of India.”

43. Applying the above noted principles as laid down in various judgments
and mandate of The Holy QURAN in Sura II Ayat 221, I find that alleged
conversion of petitioner No.1, girl in each of the writ petitions cannot be said to
be bonafide or valid. The religion of petitioner No.1 in each of the writ petitions
was converted at the instance of the petitioner No.2 (boys) to marry with the
girl. The petitioner girls have stated that they do not know about Islam. In the
writ petition as well as in the statements on oath made before this Court, the
petitioner girls have not stated that they have any real faith and belief in the
unity of God and Mohamed to be prophet. They all stated that the boy got their
religion converted with sole purpose to marry with her. Thus conversion of
religion to Islam, in the present set of facts, of the girls without their faith and
belief in Islam and at the instance of the boys, solely for the purpose of
marriage, cannot be said to be a valid conversion to Islam religion. These
marriages (Nikah) are against the mandate in Sura II Ayat 221 of the Holy
Quran. Even in the case of Lily Thomas (supra) Hon'ble Supreme Court
observed in paragraph Nos. 7,8 and 40 that conversion of religion of a non-
muslim without any real change of belief in Islam and only for marriage is void.

44. In result, all the writ petitions fail and are hereby dismissed. However
there shall be no order as to costs.

Order Date: - 16.12.2014

*******************************************************
 185

ALLAHABAD HIGH COURT

(2015 (2) ADJ 337)

Civil Misc. Writ PetitionNo. - 57284 of 2014, (Decided on 5-12-2014)

Petitioner :-Smt. Chandra Mukhtar & Another

Respondent :-State Of U.P. & 3 Others

1. In paragraph No.4 of the writ petition the petitioner No.2 has stated that
the petitioner No.1 is aged about 19 years as per ration card issued by
Government of Rajasthan, a photostat copy of which has been filed as
Annexure-1 to the writ petition. In paragraph No.5 of the writ petition the
petitioner No.2 stated himself to be aged about 25 years, as per alleged copy of
voter I.D. card filed as Annexure-2. Originals of both these papers have not
been produced by the petitioners. In paragraph No.6 of the writ petition it is
stated that petitioner No.1 accepted Islam and performed marriage on
th
18 October, 2014. In paragraph No.7 of the writ petition it is stated that family
members of Petitioner Nos. 1 and 2 neither participated in the marriage
ceremony nor they reached at the place of marriage on 18.10.2014 whereas
petitioner Nos. 1 and 2 had given the marriage card to the Respondent No.4,
mother of petitioner No.1 girl as well as in the house of petitioner No.2. In
paragraph Nos. 9,10, and 11 of the writ petition it is stated that police raided the
house of petitioner No.2 on 24thOctober, 2014 at 6 P.M. and thereafter on
th
25 October,2014.
th
2. On 29 October, 2014 this writ petition was heard at length. Both the
petitioners also appeared in person. On that day following order was passed:

Learned counsel for the petitioners has produced two papers namely,
alleged Nikahnama and alleged Sanad Qubool Islam. A copy of alleged
Nikahnama and Sanad Qubool Islam have been filed as Annexure No.3 to the
writ petition. Along with writ petition, a copy of alleged Ration Card No.03693
said to be issued by Nagar Nigam, Jaipur has been filed as Annexure No.1, in
which, family members have been shown only one Smt. Ladi Devi and the
petitioner No.1. It is stated in paragraph no.3 of the writ petition that a writ,
order or direction may be issued in the nature of mandamus directing the
respondents not to interfere in the peaceful life of the petitioner nos. 1 and 2 as
husband wife and not to harass the petitioners only on the basis of application
 186

moved by Smt. Ladi Devi W/o late Gopal LalR/o 1A-79, Kacchi Basti Tila No.1,
Jawahar Nagar, Jaipur (Rajasthan) at present resident of village Rasoolpur,
Police Station Rasoolabad District Kanpur Dehat…………………

Put up on 31.10.2014.”
st
3. On 31 October, 2014, learned counsel for the petitioners prayed for and
was allowed three days' further time to enable learned counsel for the petitioners
to comply with the order dated 29.10.2014. The matter was directed to be put up
th
on 5 November, 2014.
th th
4. On 5 November, 2014 despite the order dated 29 October, 2014 neither
the petitioners appeared nor learned counsel for petitioners made any
submission and instead requested that the writ petition may be dismissed as not
pressed which prayer was rejected in view of the facts recorded in the order
th
dated 29 October, 2014 and non-compliance of the order by the petitioner No.2.
Authenticity of the papers filed along with the writ petition was also found to be
doubtful. Serious discrepancies were also found in the papers filed by the
petitioner No.2 along with the writ petition. Petitioner No.1 girl appeared to be
minor but she was neither produced by the petitioner No.2 nor petitioner No.2
th
appeared in compliance to the order dated 29 October, 2014 and, as such, even
no direction could be issued for ossification test of the girl. Learned counsel for
the petitioners also stated that the petitioner has to say nothing.

8. As per copy of the alleged ration card of Respondent No.4, filed as

Annexure-1, there are only two members, namely, respondent No.4 and the
petitioner No.1 girl and their address is shown as 1A79, Kacchi Basti Tila No.1
Jawahar Nagar Jaipur, Ward No. 48, Jaipur, 302004. As noted in the order dated
29thOctober, 2014, petitioner No.1 stated before this Court that there are three
members in her family, namely, her mother Ladi Devi, as head of the family,
she herself and her elder brother Sri Dharmraj Prajapati. She also stated that
neither any card for marriage was printed nor it was sent to the Respondent
No.4. She stated that her elder brother is running a sweet-meat shop and they
were residing together along with their mother Ladi Devi. She stated that she
does not know what happened during the alleged Nikah and where she was
brought. The petitioner No.2 stated before this that Nikah took place in a
mosque at Allahabad but when the Court asked him to tell the name
 187

of mosque where alleged Nikah took place and the name of Qazi, he stated that
he does not know. Thus, the averments in the writ petition that there are only
two members in the family of Respondent No.4, i.e. the Respondent No.4
herself and petitioner no.1 and the allegations with regard to Nikah and sending
of marriage cards etc., are found to be false. Petitioner No.1 girl is resident of
Jaipur (Rajasthan) while Petitioner No.2, is resident of District Kanpur Dehat
but deliberately petitioner No.2 shown his own address as the address of the
Respondent no.4, i.e. mother of petitioner No.1. This has been done to mislead
the Court. The fact with regard to elder brother of petitioner No.1 has been
deliberately suppressed. Petitioner No.1 expressed before this Court her total
ignorance that what happened during the alleged Nikah and where she was
brought. The alleged Nikah and Sanad Kabul Islam bears the name of Mumtaz
Ahmad who allegedly issued it but the stamp bears the name of one Mukhtar
Ahmad. The petitioner No.2 who brought the petitioner No.1 before this Court
on 29thOctober, 2014 neither appeared deliberately on subsequent dates nor
produced the petitioner No.1. Non appearance of petitioner No.2 appears to be
due to influence of petitioner No.2 over her and also because she herself stated
the facts before this Court which are mentioned in the order dated
th
29 October,2014.
9. As discussed above, it is clear that the writ petition has been filed along
with the affidavit of petitioner No.2, making false and misleading averments.
Petitioner No.2 has not only avoided his further appearance in person but also
did not deliberately file his personal affidavit in compliance to the order dated
29.10.2014. In fact the petitioner No.2 has not only made false averments but
also misrepresented. After the aforenoted illegalities were noticed, the counsel
th
for the petitioner No.2 stated before this Court on 5 November, 2014 that the
writ petition may be dismissed as not pressed. This prayer was rejected by this
Court for the reason that the facts and circumstances as briefly noted and
discussed above indicated making of false averments by the petitioner No.2 in
the writ petition and misrepresentation and suppression of facts by him before
this Court. The petitioners, particularly, Petitioner No.2 attempted to abuse the
process of the Court.
th
10. On 5 November, 2014 learned Standing Counsel made the following
submissions:

Learned standing counsel submits that the facts and circumstances

of the case and the statements made before this Court,
 188

as noted in the order dated 29th October, 2014, clearly reveals that
neither there was any actual religion conversion nor Nikah. The writ
petition is based on false averments and manipulated piece of papers.
Even no convincing age proof to establish that petitioner No.1 is above
18 years of age, has been filed. He submits that the present writ petition
is nothing but an abuse of the process of the Court to somehow obtain an
order from the Court for protection from the legal consequences that may
follow against the petitioner No.2 for enticing the petitioner No.1 who is
a minor girl.

11. The above noted submissions were not disputed or denied by the counsel
for the petitioners and instead it was stated that the writ petition may be
dismissed as not pressed.
12. In the case of United India Insurance Company Ltd. V. B. Rajendra Singh
and others, JT 2000(3) SC.151, considering the fact of fraud, Hon'ble Supreme
Court held in paragraph 3 as under:

"Fraud and justice never dwell together". (Franset jus nunquam

cohabitant) is a pristine maxim which has never lost its temper overall
these centuries. Lord Denning observed in a language without
equivocation that "no judgement of a Court, no order of a Minister can
be allowed to stand if it has been obtained by fraud, for fraud unravels
everything"(Lazarus Estate Ltd. V. Beasley 1956(1) QB702).

(Emphasis supplied by me)

17. Under the facts and circumstances of the case, the relief as prayed by the
petitioners cannot be granted. Writ petition deserves to be dismissed with cost.

18. In result the writ petition fails and is hereby dismissed with cost of Rs.
25,000/- which shall be deposited within one month by the petitioner No.2 with
the High Court Legal Cell Authority, Allahabad.

Order date: 5.12.2014

…….
 189

ALLAHABAD HIGH COURT

[2010] (4) ADJ 724 (DB)]

Dilbar Habib Siddiqui. Petitioner

State of U.P.andothers. ...................................................... Respondents.

Hon. Vinod Prasad, J.

Hon. Rajesh Chandra, J.

(Delivered by Hon. Vinod Prasad, J)

1. Encapsulated, factual matrix of the writ petition are that informant

respondent no.3 Smt. Sunita Jaiswal is the mother of Khushboo Jaiswal, who
was born on 15.3.1991, as is recorded in her Admit Card of High School
Examination, issued from Board of High School and Intermediate
Examination, Annexure No.1. Claim of the petitioner is that because of lust
and greed for economic benefit, parents of Khushboo Jaiswal wanted to
solemnize her marriage with an aged individual and therefore Khushboo
Jaiswal embraced Muslim religion and contracted marriage with the petitioner
on 29.12.2009 and got a Nikahnama, Annexure-3, executed by Kazi and
Vakeel. Rank led by inter caste wedlock, the displeased parents of Khushboo
Jaiswal resorted to harassing tactics and as a step thereof lodged the impugned
FIR on 17.3.2010 of Crime No.136 of 2010, u/s323, 366, 363 IPC, P.S. Naini,
district Allahabad, which FIR, is now prayed to be quashed by the petitioner
through instant writ petition as police of P.S. Naini, district Allahabad was
endeavouring to apprehend the petitioner in the afore mentioned crime number.
Writ Petitioner's further pleadings are that when
 190

Khushboo Jaiswal gained knowledge about the impugned FIR, she

dispatched representations to higher authorities through registered post, a
copy of which is appended as Annexure-5 to this writ petition but without any
relief.

3. At the time of admission of this writ petition, Sri Vedmani Tiwari,

advocate appeared for the informant mother Smt. Sunita Jaiswal and
objected to the admission of this writ petition. In midst of hearing one Smt.
Hassibunnisa also appeared before us along with her three children and
opposed any relief being granted to the petitioner as she claimed that she is the
first legally wedded wife of the petitioner with whom she has three issues.
She further informed us that the petitioner deals in human trafficking by
indulging into matrimony with various girls and then leaving them as
destitutes. On query being made by us from the petitioner, he also
admitted present Smt. Hassibunnisa to be his wife. Since we were of the
opinion that to do complete justice it is uneschewable legal imperative to
hear Smt. Hasibbunnissa, we directed the petitioner to implead her as a
respondent in the instant writ petition and consequently she is now respondent
no. 4 in this writ petition. Respondent No. 4 expressed her inability to
engage a counsel for herself and her children because of financial constraints
and economic hardship, therefore, in fitness of things, we permitted Sri
Vedmani Tiwari, at his and her request, to plead for her as well. Smt.
Hassibunnisa has filed a counter affidavit in the writ petition to which no
rejoinder affidavit has been filed by the petitioner's counsel.

4. In the backdrop of above factual scenario we have heard learned counsel

for the writ petitioner and learned AGA, learned counsel for respondent
informant and Smt. Hassibunnisa against it.

7. The primary question which is to be adjudicated by us is as to whether

the impugned FIR can be quashed or not on the peculiar facts of the writ
petition? A perusal of the contents of the impugned FIR indicates that
Khushboo Jaiswal is alleged to have been abducted by the petitioner three
months prior to the lodging of it. By his dexterous
 191

manuvours and deceit petitioner had succeeded in not getting the FIR
registered against him for all this period. It is informant's allegation that
petitioner had abducted her daughter. Writ Petition further reveals that
Khushboo never converted herself into Islam. There is no document regarding
her such conversion. In our above conclusion we are fortified by the fact that
in the affidavit and application filed by Khusboo herself subsequent to her
alleged contract marriage she has described herself as Khushboo and not by
any Islamic name. As Khushboo she could not have contracted marriage
according to Muslim customs. In those referred documents she has
addressed herself as Khushboo Jaiswal daughter of Rajesh Jaiswal. Thus
what is conspicuously clear unerringly without any ambiguity is that
Khushboo Jaiswal never converted and embraced Islam and therefore her
marital tie with the petitioner Dilbar Habib Siddiqui is a void marriage
since the same is contrary to Islamic dicta and tenets of Holy Quran. It is
recollected here that Nikahi.e.marriage in pre-Islamic Arabia, meant
different forms of sex relationships between a man and a woman. Prophet
Mohammed brought about a complete change in the position of woman in
society through Holy Quran, which is the primary and basic source of Islamic
Law. In this respect we can do no better than to refer the verses of Holy
Quran. Sura 2 Ayat 221 of The Holy Quran as is mentioned in the text book
of Mohammedan Law by I. Mulla, Ist Edition, 2ND reprint, at page 162,
PROVIDES as follows:-

"Do not marry unbelieving women until they believe. Nor marry your girls
to unbelievers until they believe" .

8. Here a believing women is referred to such a women who has

embraced Islam and has faith in Prophet Mohammed. Marriage in Muslim
law is not only a ritual but is also"a devotional act"as Dr.M.U.S.Jang
referred it in his book 'Desertion on the Development of Muslim Law in
British India'(page1.2.).I.Mulla in his above text book at page 166 has
written thus:-

"Koranic injunctions recognise in Islam, marriage as the basis of society.

Though it is a contract, it is also a sacred covenant. Temporary marriages are
forbidden. Marriage as an institution leads to the uplift of man and is a
 192

means for the continuance of human race."

9. Thus what is well recognised in Muslim Law is that marriage is a sacred

act. For essentials of a valid muslim marriage,AL-HAJ MAULANA
FAZLUL KARIM in his translation and commentary of Mishkat-ul-
Masabih, AL-HADIS (BOOKII), CHAPTER XXVII, SECTION2, HAS written
thus:-

"Intradition, we find that the following qualifications of a bride should be

sought. The bride should be (1)aMuslim (2)chaste (3)virgin, (4)beautiful
,(5)accomplished, (6)having sweet tongue, and good manners, (7)possessing
property, (8) having children bearing capacity and affectionate nature and (9)
equal respectability."

10. Thus for a valid muslim marriage both the spouses have to be muslim. In
the present writ petition this condition is not satisfied as the writ petition lacks
credible and accountable material in this respect on which reliance can be
placed.

11. Coming to another limb of argument raised by counsel for the petitioner
that a muslim man is entitled to marry four time, we once again revert back to
recognised treatises. We find that Sura 4 Ayat 3 of The Holy Quran provides
for giving due care and provisions for a Muslim women. The said Ayat, as is
referred to in the treatise by I.Mulla, is referred to below:-

"(vi) Number of wives- If ye fear that ye shall not be able to deal justly with
the orphans ( orphan wives and their property); marry woman of your choice,
two or three or four; But if you fear that ye shall not be able to deal justly
(withthem), then only one. ............................................. that would be
more suitable to prevent you from doing injustice."

12. From the perusal of above Ayats, it is abundantly clear that bigamy is not
sanctified unless a man can do justice to orphans. The said Ayat mandates all
Muslims men to deal justly with orphans and then they can marry women of
their choice two or three or four but if they fear that they
 193

will not be able to deal justly with them then only one. We are of the view,
that such a religious mandate has been given to all the Muslims for a greater
social purpose. If a Muslim man is not capable of fostering his wife and
children then he cannot be allowed the liberty to marry other women as that
will be against the said Sura4-Ayat-3. This aspect of the matter should not vex
our mind further as the same came up before the apex court as well in Javed
And Others versus State of Haryana: AIR 2003 SC 3057 and therefore we
conclude this aspect of the submission by referring to the words of the apex
court in that decision, which are as follows:-

"The Muslim Law permits marrying four women. The personal law nowhere
mandates or dictates it as a duty to perform four marriages. No religious
scripture or authority provides that marrying less than four women or
abstaining from procreating a child from each and every wife in case of
permitted bigamy or polygamy would be irreligious or offensive to the
dictates of the religion. The question of the impugned provision of Haryana
Act being violative of Art. 25 does not arise."

13. Reverting back to the facts of the present writ petition it is recollected
that the facts are such where the petitioner has left his wife and the three
children born of the said wedlock as destitutes. He cannot be allowed to
remarry to leave his wife and children as a destitutes as that will be against the
tenets of The Holy Quran which no Muslim can even dare to disobey.
However, the fact remains is that without divorcing his first wife and without
dealing with his three children in a fair and just manner, the petitioner claims
to have married with alleged Khushboo Jaiswal contrary to Sura2 Ayat221
AND Sura4-Ayat-3 and therefore, his alleged marital knot cannot be legally
sanctified. The whole basis of the present writ petition is that petitioner has
married with Khushboo Jaiswal and therefore, he has not committed any
offence. Khushboo Jaiswal was under the guardianship of her parents. Her
age, as is mentioned in the FIR is 16 years. She was taken out of the custody
of her parents by the petitioner. Albeit, Khushboo Jaiswal claims that she is a
major and she has married with petitioner on her own volition but the fact
remains is that her marriage with petitioner is wholly void.
 194

14. There is yet another reason for us not to interfere in this writ petition and
that is that this petition is based on suppression of cogent and relevant
material from us. Writ is an equitable remedy. One who claims equity must
come with clean hands. Petitioner intentionally and deliberately concealed
referring his earlier marriage and having three children from that wedlock.
Albeit married he has decieved Khushboo Jaiswal, who did not intimate us
that she was in the knowledge of petitioner's first marriage. In such a view, we
are not inclined to quash the impugned F.I.R.

15. This writ petition for the prayer of quashing of the impugned F.I.R.
dated 17.3.2010 registered as Crime No.136 of 2010 for offences under
Sections 323, 366, 363IPC, Police Station Naini, District Allahabad, is
dismissed. However we direct that investigation in the said crime be
conducted expeditiously in a fair and just manner. Khushboo Jaiswal, who is
lodged in Nari Niketan is directed to be set at liberty. As she cannot be left as
destitute, we consider it appropriate to direct that she shall be handed over to
her parents by the authorities of the Nari Niketan.

16. Writ petition is dismissed with the aforesaid directions.

 195
Orissa High Court
Mrs. Yulitha Hyde And Ors. vs State of Orissa And Ors.:
AIR 1973 Ori 116
JUDGMENT

1. These are three applications under Article 226 of the Constitution essentially
challenging the vires of the Orissa Freedom of Religion Act 2 of 1968
(hereinafter referred to as the Act) and were heard analogously. This common
judgment shall dispose of all these applications.

2. Though the main challenge is on a common stand several allegations have

been made in these applications which it may be useful to briefly indicate.

(a) O. J. C. No. 185 of 1969:

The four petitioners here are Indian citizens and are Christians belonging to the
Roman Catholic church. Of them, the petitioners 2 and 4 are Priests who claim
to have dedicated themselves to the propagation of the Catholic faith and are
engaged in evangelization leading to conversion of persons belonging to other
faith by and/or through preaching exhortation. The impugned Act received
assent of the Governor of Orissa on 9-1-1968 and came into force from the
following day. Father Fernando and three others named in paragraph 13 of the
application who are said to be catechists have been prosecuted under the Act in
the Court of a Magistrate at Gunupur in four separate cases bearing Nos. G. K.
Nos. 314. 311. 312 and 313 of 1968 respectively. It is claimed that the Act is
ultravires the Constitution as it infringes the fundamental rights guaranteed
under Articles 19(1)(a) and 25 of the Constitution. It is also alleged that the
State Legislature has no legislative competency to enact the statute in
question. The petitioners have, therefore, prayed for quashing of these several
criminal cases upon a declaration that the Act is ultra vires the Constitution.

(b) O. J. C. No. 186 of 1969;

This application is by three petitioners. Petitioners 1 and 2 who are Indian

Citizens and also Christians belonging to the Roman Catholic church are
permanent residents of Orissa. Petitioner No. 3 is the Catholic Union of India- a
Society registered under the Societies Registration Act, 1860, and
 196

petitioners 1 and 2 claim to be members of the said society. It is claimed that

the main purpose of the Society is to act as the exponent of the Catholic faith, to
make representations and submissions to authorities and public bodies in this
country in all matters affecting catholics in India and to safeguard by all lawful
means the legitimate rights and liabilities and interests of the catholic
community particularly in respect of rights granted or recognised by the
Constitution. The petitioner No. 2 claims that he is a priest devotedly engaged in
evangelization. The relief claimed in the application is the declaration that the
Act is ultra vires the Constitution being violative of the fundamental rights
guaranteed by the Constitution and as being an Act of the State Legislature
without the requisite legislative competence.

(c) O. J. C. No. 217 of 1969:

The petitioner is an Indian Christian and happens to be a professor of the

Theological College at Cuttack. He is also the President of the Utkal Christian
Council -- an organisation formed to aid and assist the Protestant Churches,
Christian organisations and Christians of Orissa of the Protestant Christian faith
in particular. The relief asked for in the writ application is one of declaration that
the Act is ultra vires the Constitution.

Thus the main contention raised in these three applications is that the Act is ultra
vires the Constitution. The attack is on the following grounds.

(a) The State Legislature has no legislative competency to legislate on

matters covered by the Act.
(b) The Act infringes the fundamental right guaranteed under Article 25 of
the Constitution.

4. It has been alleged that ordinarily religious instructions covering a period of

six months to a year are first imparted to those non-Christians who intend to
become Christians by conversion. After such instructions are imparted care is
taken to reach satisfaction on behalf of the Church that the"conversion-seeker"
has fully understood the tenets of the faith and is therefore, fit enough to be
baptised (so far as Catholics are concerned) or converted (as far as Protestants
are concerned).

It has been contended that conversion to Christianity is due to all or some of the
following reasons:--
 197

(a) Christians believe that their religion is a Holy Gift and is particularly good;
instead of selfishly keeping this divine gift all to themselves, they are
willingly out to share the some with all others :
(b) Christ, the Holy Father, commanded every Christian to carry His message
throughout the world irrespective of race caste and/or creed. Every Christian,
therefore, takes it as a mandate of his religion that he must bring non-Christians
into his religion,
(c) Though Christians do not deny salvation for non-Christians yet they believe
that facilities available in their religion make the attainment of salvation
smoother and more convenient and surer;
(d) Christians believe in the Fatherhood of God and Brotherhood of all men and,
as such, they consider that all men are not only born equal but arc entitled to live
as equals in the kingdom of God;
(e) Christians believe that conversion takes place by extension of God's grace
which is obtainable only by daily prayers devoted for the purpose; many non-
Christians are attracted towards this religion on account of the Christian belief in
God and life after death :
(f) Christians have a very high spiritual standard and aspire for maintaining also
a dignified standard of living. They believe that those who receive the grace of
God have a divine mandate to allow others in His kingdom who have not
received such grace to share it. Christians believe that satisfaction of the basic
physical wants creates a wholesome basis for effectiveness of religion.
Therefore, attempt is made to improve the economic condition of the
"conversion-seekers" as an Initial process of conversion;
(g) The exemplary life led by Christian Priests and Nuns and their dedicated life
of renunciation evokes admiration and attracts many into the fold of Christianity;
(h) People of the depressed classes in Society feel that they are hated and
despised by the well-placed section of people. People of the depressed classes
embrace Christianity voluntarily as an escape.

As methods of this propagation of religion often mild threats are held out. The
preacher says; "You(non-Christians) shall go to hell" or "You shall not obtain
salvation". The preacher also often says;

"Wrath of God shall come down upon you" or "God will be displeased with
you." Dealing with Blessings of obedience and Results of disobedience in the
Old Testament it has been said:

".........Blessed shall you be in the city, and blessed shall you be in the field.
Blessed shall be the fruit of your body, and the fruit of your ground, and the fruit
of your beasts, the Increase of your cattle and the young of your flock .........
 198

And the Lord will bound you in prosperity in the fruit of your body and in the
fruit of your cattle and in the fruit of your ground ........... The Lord will open to
you His good treasury the heavens, to give the rain of your land in its season and
to bless all the work of your hands .........

But if you will not obey the voice of the Lord your God or be careful to do all
his commandments............ The Lord will send upon you curses, confusion, and
frustration, in all that you undertake to do until you are destroyed and perish
quickly ............"

It has been said elsewhere in the Holy Bible:

"To Him ell the prophets bear witness that every one who believes in Him
receives forgiveness of sins through His name.

From the Sixteen Documents of Vatican II it has been quoted during argument;
The Lord commanded;

"Go. therefore, and make disciples of all nations baptizing them in the name of
the Father and of the son and of the Holy Spirit; ......... Go into the whole world,
preach the gospel to every creature. He who believes and is baptized shall be
saved; but he who does not believe, shall be condemned."

And again:

"Let Christians labour and collaborate with others in rightly regulating the affairs
of social and economic life. With special care, let them devote themselves to the
education of children and young people by means of different kinds of schools
which should be considered not only as the most exultant means of forming and
developing Christian youth but also as a valuable public service specially in the
developing nations, working toward the uplifting of human dignity, and toward
better living conditions. Furthermore, let them take part in the striving of these
peoples who waging war on famine ignorance and disease, are struggling to
better their way of life and to secure peace in the world. In this activity, the
faithful should be eager to offer prudent aid to projects sponsored by public and
private organisations, by Governments, by various Christian communities or
even by non-Christian communities."

And again:

"Closely united with men in their life and work. Christ's disciples hope to render
to others true witness of Christ, and to work for their salvation even
 199

where they are not able to announce Christfully. For they are not seeking a mere
material progress and prosperity for men but are promoting their dignity and
brotherly union, teaching those religious and moral truths which Christ illumined
with High Light; and in this way, they are gradually opening up a fuller
approach to God. Thus they help men to attain to salvation by love for God and
neighbour, and the mystery of Christ begins to shine forth, in which there
appears the new man, created according to God, and in which the charity of God
is revealed ......... Whenever God opens a door of speech for proclaiming the
mystery of Christ there is announced to ell men with confidence and constancy
the living God, and he whom he has sent for the salvation of all, Jesus Christ in
order that non-Christians, when the Holy Spirit opens their heart may believe
and be purely converted to the Lord, that they may cleave sincerely to Him Who,
being the 'way the truth and the life', fulfils ell their spiritual expectations, and
even infinitely surpasses them."

Counsel for the several petitioners have freely quoted from several Christian
Scriptures of undoubted authority to show that propagating religion with a view
to its spreading is a part of religious duty for every Christian and, therefore, must
be considered as a part of the religion.

Learned Government Advocate does not dispute this assertion of fact. We,
therefore, proceed on the basis that it is the religious duty of every Christian to
propagate his religion,

5. The term "religion", as in the American Constitution also has not been defined
in our Constitution. Waite, C. J. in Reynolds v. United States. (1879) 98 US 145,
observed:

"The word 'religion' is not defined in the Constitution. We must go elsewhere,

therefore, to ascertain the meaning and nowhere more appropriately we think,
than to the history of the tunes in the midst of which the provision (1st
amendment) was adopted. The precise point of the enquiry is, what is the
religious freedom which has been guaranteed?"
In course of the discussion, the learned Chief Justice further said:

"In the Preamble of this Act religious freedom is defined: and after a recital that
to suffer a civil magistrate to intrude his powers into the field of opinion and to
restrain the profession or propagation of principles on supposition of their ill
tendency is a dangerous fallacy which at once destroys all religious liberty', it is
declared that 'it is time enough for the rightful purpose of civil Government for
its officers to interfere when principles break out into overt acts against peace
and good order.' In these two sentences is found that true
 200

distinction between what properly belongs to the church and what to the State."

In Commr.of H. R. E. v. L. T. Swamiar (commonly known as Sirur Math case),

AIR 1954 SC 282, atp. 290, Mukherji, J. as his Lordship then was, stated:--

"What then are matters of religion? The word 'religion' has not been defined in
the Constitution and it is a term which is hardly susceptible of any rigid
definition. In an American case -- vide Davis v.Beason. (1888) 133 US 333 at
p. 342, it has been said:

'that the term 'religion' has reference to one's views of his relation to his creator
and to the obligations they impose of reverence for his Being and character and
of obedience to his will. It is often confounded with 'cults' of form or worship of
a particular sect. but is distinguishable from the latter.' We do not think that the
above definition can be regarded as either precise or adequate. Articles 25 and
26 of our Constitution are based for the most part upon Article 44(2) of the
Constitution of Eire and we have creat doubt whether a definition of 'religion' as
given above could have been in the minds of our Constitution-makers when they
framed the Constitution.

Religion is certainly a matter of faith with individuals or communities and it is

not necessarily theistic. There are well known religions in India like Budhism
and Jainism which do not believe in God or in any Intelligent First Cause. A
religion undoubtedly has its basis in a system of beliefs or doctrines which are
regarded by those who profess that religion as conducive to their spiritual well
being, but it would not be correct, to say that religion is nothing else but a
doctrine or belief. A religion may not only lay down a code of ethical rules for
its followers to accept, it may prescribe rituals and observances, ceremonies and
modes of worship which are regarded as integral parts of religion, and these
forms and observances might extend even to matters of food and dress."

His Lordship quoted with approval the weighty observations of Latham, C. J. of

the High Court of Australia in Adelaide Co. v. The Commonwealth, 67 CLR
116, running thus:

"It is sometimes suggested in discussions on the subject of freedom of religion

that, though the civil Government should not interfere with religious 'opinions',
it nevertheless may deal as it pleases with any 'acts' which are done in pursuance
of religious belief without infringing the principle of freedom of
 201

religion. It appears to me to be difficult to maintain this distinction as relevant to

the interpretation of Section 116 (of the Australian Constitution Act). The
section refers in express terms to the 'exercise' of religion, end therefore it is
intended to protect from the operation of any commonwealth laws acts which are
done in the exercise of religion. Thus the section goes far beyond protecting
liberty of opinion. It protects also acts done in pursuance of religious belief as
part of religion."

'These observations apply fully to the protection of religion as guaranteed by the

Indian Constitution.' While referring to several later decisions of the Supreme
Court, counsel before us candidly stated that none has differed from the weighty
observations indicated here. We, therefore, do not propose to refer to the other
cases.
6. Article 25 guarantees 'freedom of conscience' and 'the right freely to
profess, practise and propagate religion'. Dealing with the scope of the guarantee
under this Article, their Lordships of the Supreme Court in Durgah Committee v.
Hussain Ali, AIR1961 SC 1402, at page 1414 stated :

"Under Article 25(1), subject to public order, morality and health and to
the other provisions of Part III, all persons are equally entitled to freedom of
conscience and their right freely to profess, practice and propagate religion. This
freedom guarantees to every citizen not only the right to entertain such religious
beliefs as may appeal to his conscience but also affords him the right to exhibit
his belief in his conduct by such outward acts as may appear to him proper in
order to spread his ideas for the benefit of others."

The true scope of the guarantee under Article 25(1) of the Constitution,
therefore, must be taken to extend to propagate religion and as a necessary
corollary of this proposition, conversion into one's own religion has to be
included in the right so far as a Christian citizen is concerned.

The right guaranteed under Article 25(1), however, is not absolute, but
has been expressly subject to 'public order', 'morality' and 'health' and 'to the
other provisions of Part III of the Constitution', We must, therefore, now advert
to the Act to find out whether its provisions which are alleged to infringe the
right under this Article are covered by the limitations provided therein or do
indeed infringe the right.

We shall now deal with the argument regarding the definition of

'inducement'. The attack is mainly on the ground that it is too widely stated and
even invoking the blessings of the Lord or to say that 'by His grace your soul
shall be elevated' may come within the mischief of the term. Learned
Government Advocate while agreeing that even holding out that an intangible
 202

benefit is to come may answer the definition, contends that the intention of the
Legislature is not to transcend the ordinary concept of the term. We are of the
view that the definition is capable of covering some of the methods of
proselytizing and though the concept of inducement can be a matter referable to
'morality', the wide definition is indeed open to reasonable objection on the
ground that it surpasses the field of morality.

8. We shall now proceed to examine the legislative competence of the

Orissa State Legislature to enact the impugned Statute. Learned Government
Advocate has contended that the impugned Act is clearly referable to entry 1 of
List II or Entry 1 of List III and as such the legislation is competent. Counsel for
the petitioners, however, contend that there is no specific entry in Schedule VII
of the Constitution dealing with the topic of 'religion' and as such entry 97 of
List I of Schedule VII alone must apply.

Legislative powers have been distributed under the Constitution between the
Union and the States. Yet our Constitution is centripetal in character. Article 248
provides:--

"Parliament has exclusive power to make any law with respect to any matter not
enumerated in the concurrent List or State List."

Entry 97 of List I reiterates the provision by saying:

"Any other matter not enumerated in List II or List III including any tax
not mentioned in either of these Lists." Their Lordships of the Supreme Court in
the Second Gift Tax Officer v. D. H. Hazareth, AIR 1970 SC 999, have said:--

"Therefore to find out whether a piece of legislation falls within any entry
its true nature and character must be in respect to that particular entry. The
entries must of course receive a large and liberal interpretation because the few
words of the entry are intended to confer vast and plenary powers. If, however,
no entry in the three Lists covers it, then it must be regarded as a matter not
enumerated in any of the three lists. Then it belongs exclusively to Parliament
under Entry 97 of the Union List as a topic of legislation."

We have, therefore, to examine whether legislative power has been vested

in the State Legislature under any of the entries in List II in respect of this
subiect-matter or if it is a matter pertaining to an entry in List III. The two
entries which have been placed before us by learned Government Advocateas
alternates are as follows:
 203

List II. Entry I, provides:--

"Public order (but not including the use of naval, military or air forces or any
other armed forces of the Union in aid of the civil power)."

The 1st Entry of List III runs thus:

"Criminal law, including all matters Included in the Indian Penal Code at the
commencement of this Constitution but excluding offences against laws with
respect to any of the matters specified in List I or List II and excluding the use of
naval, military or air forces or any other armed forces of the Union in aid of the
civil power."

9. Before adverting to the two Entries in List II and List III of Schedule VII of
the Constitution, in order to find out whether the Act is ultra vires the State
Legislature or not. It is proper that we indicate in brief the law to be applied for
determining such a question.

In the Privy Purse case. (AIR 1971 SC 530) at page 577 of the Reporter, it has
been said:

"But a constitutional provision will not be interpreted in the attitude of a

lexicographer, with one eye on the provision and the other on the lexicon. The
meaning of a word or expression used in the Constitution often is coloured by
context in which it occurs; the simpler and more common the word or
expression, the more meanings and shades of meanings it has. It is the duty of
the Court to determine in what particular meaning and particular shade of
meaning the word or expression was used by the Constitution-makers and in
discharging the duty the Court will take into account the context in which it
occurs, the object to serve which it was used, its collocation, the general
congruity with the concept or object it was intended to articulate, and a host of
other considerations. Above all the Court will avoid repugnancy with accepted
norms of justice and reason."

Dealing with distribution of legislative power, their Lordships of the Supreme

Court in A. S. Krishna v. Madras State, AIR 1957 SC 297, have said:

"It must be remembered that we are construing a federal Constitution. It is the

essence of such a Constitution that there should be a distribution of the
legislative powers of the Federation between the Centre and the Provinces. The
scheme of distribution has varied with different Constitutions, but even when the
Constitution enumerates elaborately the topics on which the Centre and the
States could legislate, some overlapping on the fields of legislation is inevitable.
The British North American Act, 1867.which established a
 204

Federal Constitution for Canada, enumerated in Sections 91 and 92 the topics on

which the Dominion and the Provinces could respectively legislate.
Notwithstanding that the lists were framed so as to be fairly full and
comprehensive, it was not long before it was found that the topics enumerated
in the two sections overlapped and the Privy Council had time and again to pass
on the Constitutionality of the laws made by the Dominion and the Provincial
legislatures. It was in this situation that the Privy Council evolved the doctrine
that for deciding whether an impugned legislation was intra vires, regard must be
had to its pith and substance. That is to say, if a Statute is found in substance to
relate to a topic within the competence of the legislature, it should be held to be
intra vires even though it might incidentally trench on topics not within the
legislative competence."

Their Lordships quoted with approval the test used by Lord Porter in Prafulla
Kumar v. Bank of Commerce Ltd.. AIR 1947 PC 60, where dealing with the
Question of the extent of the invasion by the Provincial Legislation into the
Federal fields, the Law Lord said:--

"No doubt it is an important matter not as their Lordships think, because the
validity of an Act, can be determined by discriminating degrees of invasion, but
for the purpose of determining what is the pith and substance of the impugned
Act. Its provisions may advance so far into the Federal territory as to show that
its true nature is not concerned with provincial matters, but the question is not
has it trespassed more or less, but is the trespass, whatever it be, such as to show
that the pith and substance of the impugned Act is not money lending but
promissory notes or banking? Once that question is determined the Act falls on
one or the other side of the line and can be seen as valid or invalid according to
its true content."

Keeping in view these tests, we shall now proceed to examine whether, in its
pith and substance, theAct is a Statute relating to the topic of "Public Order" has
in entry I of List II) or "Criminal Law" has in entry I of List III).

10. Counsel for both sides have referred to several decisions of undoubted
authority to indicate the meaning the term "Public Order" comprehends. In
Lakhi Das v. Province of Bihar, AIR 1960 SC 59 the corresponding entry (re:
Public Order) under the Government of India Act, 1935, came up for
consideration. Speaking for the Court Mukherji, J. has his Lordship then was)
spoke thus:

"The expression 'public order' with which item No. 1 begins is, in our opinion a
most comprehensive term and it clearly indicates the scope and ambit of the
subject in respect of which powers of legislation are given to the Province.
 205

Maintenance of public order within a Province is primarily the concern of that

Province and subject to certain exceptions which involve the use of His
Majesty's forces in aid of civil power, the Provincial Legislature is given plenary
authority to legislate on all matters which relate to or are necessary for
maintenance of public order."

In Romesh Thappar v. State of Madras, AIR 1950 SC 124. Pataniali Sastri J. has
his Lordship then was) delivered the rudiment of the majority saying:

"Now 'public order' is an expression of wide connotation and signifies that state
of tranquility prevailing among the members of a political society as a result of
the internal regulations by the Government which they have instituted."

Counsel for the petitioners referred us to several other later decisions of the
Supreme Court where with reference to the term 'public order' judgments have
been delivered. (Supdt. Central Prison v. Ram Manohar Lohia, AIR 1960 SC
633; Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740; Pushkar
Mukherjee v. State of West Bengal, AIR 1970 SC 852) but they are cases where
the term 'public order ' as occurring in Article 19(2) of the Constitution was dealt
with. In our opinion, consideration which governs the interpretation of the
phrase in Article 19(2) of the Constitution can not be imported into construction
of 'public order' as a legislative head of power.

The Act essentially deals with the subject-matter of "religion" and its provisions
do not indeed relate to "public order". Learned Government advocate has
experienced some amount of embarrassment during the hearing of these
applications in the absence of a firm disclosure upon affidavit as to which entry
the State looks upto to justify the competence of the Act. The adoption of
alternate entries in his argument is indicative of the uncertain situation. We do
not find any basis to hold that the Act can be held to be covered by the topic of
'Public Order' in Entry I of List II.

11. Now coming to the other entry in the Concurrent List the topic is "Criminal
Law." The entry clearly brings into its fold the Indian Penal Code as it stood at
the commencement of the Constitution, but excludes specifically offences with
respect to matters specified in List I or List II and use of military power in aid of
civil power. The second entry in List III is "Criminal Procedure" including all
matters in the Code of Criminal Procedure at the commencement of the
Constitution. When both these entries are looked at the true import of the first
entry becomes clear. The inclusive nature of the provision has the effect of
enlarging of the scope. We must hold that the entry covers a field larger than the
Indian Penal Code. "Criminal Law" has no
 206

definition in the Constitution nor is a definition of the term available in any

Statute. The term must, therefore, bear its ordinary meaning. Law dealing with
crimes is criminal law. As the Law Lexicon states "it relates to crimes and their
punishment. It is that body of law, whether dealing with "mala prohibita or mala
in se", the infraction of which is a crime or an offence punishable by a criminal
proceeding. "Punishment is certainly within the domain of criminal law and
learned Government Advocate, therefore, contends that the Act is nothing but a
penal statute and is thus an Act relatable to the entry. According to him, the
entry extends to the creation of new offences by legislation (AIR 1939 FC 58)
and thus the Act is intra vires the State Legislature.

An analysis of the Act, however, has left no doubt in our mind that the pith and
substance of the statute is not creation of offences and therefore, it does not
relate to 'criminal law'. The real topic is religion and indeed not criminal law.
Again religion is not a matter specified in List II but must be taken to be covered
only in List I. Therefore, even in terms of the entry, the State Legislature shall
not have legislative jurisdiction.

In our view, therefore, the matter relating to which the Act has been enacted is
not enumerated either in List II or List III and comes under entry 97 of List I.
The State Legislature has, therefore, no power to make the law in question.

12. Our conclusions, therefore, are:

(1) Article 25(1) guarantees propagation of religion and conversion is a part of

the Christian religion.

(2) Prohibition of conversion by 'force' or by 'fraud' as defined by the Act would

be covered by the limitation subject to which the right is guaranteed under
Article 25(1).
(3) The definition of the term 'inducement' is vague and many proselytizing
activities may be covered by the definition and the restriction in Article 25(1)
cannot be said to cover the wide definition.
(4) The State Legislature has no power to enact the impugned legislation which
in pith and substance is a law relating to religion. Entry No. 1 of either Last II or
List III does not authorise the impugned legislation.

(5) Entry 97 of List I applies.

13. On the conclusions, each of these three applications must succeeed. We

declare that the Act is ultra vires the Constitution and direct the issue of a writ of
mandamus to the opposite-party-State Government not to give effect to the
 207

Act. The four criminal cases pending before the Magistrate at Gunupur are
hereby quashed.

We make no order as to costs.

Madhya Pradesh High Court

Rev. Stainislaus vs. State Of
Madhya Pradesh And Ors.
AIR 1975 MP 163
1. The petitioner raised a preliminary objection as to the tenability of the
prosecution contending that the Act was ultra vires the powers of the
State legislature, as it did not fall within the scope of Entry No. I to List
II and Entry No. 1 to List III of the Seventh Schedule. But, in fact it
falls within Entry No. 97 of List I of the Seventh Schedule and as such,
the Parliament alone had the power to enact legislation on the subject
and the State legislature in the name of public order could not have
enacted such a legislation. The other contention raised was that the
provisions of Sections 3, 4 and 5 (2) of the Act contravene Article 25 of
the Constitution of India guaranteeing freedom of religion, the Act is
void as being in violation of the petitioner's fundamental rights. On these
two grounds the prosecution was said to be untenable.

2. In the present case the petitioner has raised three constitutional

questions challenging the vires of the Madhya Pradesh Dharma
Swatantrya Adhiniyam, 1966. We propose to discuss them in a serial
order as follows:
(i) that
Sections 3, 4, 5 (2) and 6 of the M. P. Dharma Swatantrya
Adhiniyam, 1968, are violative of the petitioner's fundamental rights
guaranteed by Article 25(1) of the Constitution of India;
 208

(ii) thatin exercise of powers conferred by Entry No. 1 of List II, read
with Entry No. 1 of List III of the Seventh Schedule, the Madhya
Pradesh legislature in the name of public order could not have enacted
the said legislation. But the matter would fall within the scope of Entry
No. 97 of List I of the Seventh Schedule, which confers residuary
powers on the Parliament to legislate in respect of any matters not
covered by List I, List II or List III. Therefore, it is contended that the
Parliament alone had the power to legislate on this subject and the
legislation enacted by the State legislature is ultra vires the powers of the
State legislature;

(iii) that
Section 5 (1) and Section 5 (2) of the M. P. Dharma Swatantrya
Adhiniyam, 1968, amount to testimonial compulsion and, therefore, the
said provisions are violative of Article 20(3) of the Constitution of
India.

3. Regarding the first question that the provisions of the Act are
violative of the petitioner's fundamental rights guaranteed by Article
25(1) of the Constitution, it may be relevant to reproduce the pertinent
provisions of the Act along with the provisions of the Madhya
Pradesh Dharma Swatantrya Rules, 1969. The very nomenclature of
the Act, namely, the M. P. Dharma Swatantrya Adhiniyam, 1968,
Religious Freedom Act) indicates that the Act had been passed to ensure
freedom of religion. The preamble of the Act mentions that it is for
providing prohibition of conversion from one religion to another by the
use of force or allurement or by fraudulent means and for matters
incidental thereto. Of course, it is true that the preamble of an Act is not
relevant for interpreting the specific provisions of the statute. But, we
have reproduced the preamble to show with what object the legislature
enacted this legislation.

4. Rule 3 of the M. P. Dharma Swatantrya Rules, 1969, provides that a

person converting any other person from one religion to another shall
send intimation to the District Magistrate within seven days after the
date of such ceremony. Sub-rule (2) of Rule 3 (provides that
 209

intimation shall be in Form A. Rule 5 requires the District Magistrate to

maintain a register of conversion in Form C with all particulars. Rule 6
requires the District Magistrate by the 10th of each month to send a
report to the State Government of intimations of such conversion.

10. Taking up the first question, whether the provisions of Sections 3, 4,

5 (1) and 5 (2) and Section 6 of the M. P. Dharma Swatantrya
Adhiniyam, 1968, violate the petitioner's fundamental rights
guaranteed by Article 25(1) of the Constitution of India, we may
usefully reproduce Article 25(1), which is as follows:

"Article 25(1).-- Subject to public order, morality and health and to the
other provisions of this Part, all persons are equally entitled to freedom
of conscience and the right freely to profess, practice and propagate
religion."

What the Article guarantees is freedom of conscience and the right to

profess, practice and propagate religion. This fundamental right is not
restricted to the Indian citizen alone, but to every person living within
the territory of India. Regarding freedom of religion it is to be noted that
the freedom of religion is not a monopoly of a single individual, but the
freedom is to be enjoyed by a person commensurate with similar
freedom to all other individuals. It was strenuously contended by the
learned counsel for the petitioner that the provisions of Sections 3, 4 and
5 of the Act constitute encroachment on the petitioner's freedom of
religion. In this connection we may observe that the freedom of religion
has been guaranteed subject to four things, namely, public order,
morality, health and the other provisions of this Part. As liberty cannot
be construed to be a licence so also freedom of religion cannot be
construed to be the right of an individual to encroach upon similar
freedom of other individuals by questionable methods. It is only from
this point of view that the State legislature has prohibited conversion by
practising force, fraud or by offer of an allurement. The contention of the
learned counsel for the petitioner
 210

was that force or fraud is well understood by phrases which have also
been defined by the Indian Penal Code and the Indian Contract Act. But
the introduction of the third phrase 'allurement' for the first time in an
enactment is objected to on the ground that the phrase is too vague and is
incapable of a precise definition. In this connection attention was invited
to the observations of a Division Bench of the Orissa High Court in Mrs.
Yulitha Hyde v. State of Orissa, AIR 1973 Ori 116. We shall have
occasion to deal with this case in some details when we consider the
other point relating to the legislative competence of the enactment.

Thus, subject to the restrictions which this Article imposes, every

person has a fundamental right under our Constitution not merely to
entertain such religious belief as may be approved of by his judgment or
conscience but to exhibit his belief and ideas in such overt acts as are
enjoined or sanctioned by his religion and further to prorogate his
religious views for the edification of others. It is immaterial also whether
the propagation is made by a person in his individual capacity or on
behalf of any church or institution. The free exercise of religion by
which is meant the performance of outward acts in pursuance of
religious belief, is, as stated above, subject to State regulation imposed to
secure order, public health and morals of the people.

What Sub-clause (a) of Clause (2) of Article 25 contemplates is not

State regulation of the religious practices as such which are protected
unless they run counter to public health or morality but of activities
which are really of an economic, commercial or political character
though they are associated with religious practices."

11.Thus, according to the pronouncement of their Lordships of the

Supreme Court in the cases mentioned above, exercise of the
fundamental right of religious freedom is subject to public order,
morality and health. It necessarily implies that the word 'public' has to
be read with the other two phrases as well. Therefore, the restrictions
will be public order, public morality and public health. The exercise
can be subject to the restrictions provided by Sub-clause (1) of
 211
Article 25 of the Constitution. We have, therefore, to determine whether
the M. P. Dharma Swatantrya Adhiniyam, 1968, violates Article 25(1) of
the Constitution of India. In this connection we may observe that it is not
merely the penal provisions which ought to be considered in
exclusion. What is penalized is conversion by force, fraud or by
allurement. The other element is that every person has a right to profess
his own religion and to act according to it. Any interference with the
right of the other person by resorting to conversion by force, fraud or
allurement cannot, in our opinion, be said to contravene Article 25(1) of
the Constitution of India, as the Article guarantees religious freedom
subject to public order, public morality and public health. As such, we
do not find that the provisions of Sections 3, 4 and 5 of the M P. Dharma
Swatantrya Adhiniyam, 1968, are violative of Article 25(1) of the
Constitution of India. On the other hand, it guarantees that religious
freedom to one and all including those who might be amenable to
conversion by force, fraud or allurement. As such, the Act, in our
opinion, guarantees equality of religious freedom to all much less can it
be said to encroach upon the religious freedom of any particular
individual. We would, therefore, repel the contention of the learned
counsel for the petitioner on the first point by holding that the
provisions of Sections 3, 4 and 5 of the M. P. Dharma Swatantrya
Adhiniyam, 1968, are not violative of Article 25(1) of the
Constitution of India.

12. Coming to the second question regarding legislative competence of

the State legislature, the learned counsel urged that the subject-matter
will be covered by Entry No. 97 of List I of the Seventh Schedule, which
is as follows:

"Any other matter not enumerated in List II or List III including any tax
not mentioned in either of those Lists."

The suggestion, therefore, is that the matter will be covered by the Entry
relating to the residuary power of the Parliament. It is strenuously urged
that the subject-matter will not be covered by Entry 1 of List II, i.e. the
State List, which is as follows:
 212

"Public order (but not including the use of naval, military or air forces or
any other forces of the Union in aid of the Civil power)."

13.It is also suggested that the subject-matter will not be covered by

Entry 1 of List III of the Seventh Schedule, i.e. the Concurrent List,
which is as follows:

"Criminal Law, including all matters included in the Indian Penal Code
at the commencement of this Constitution but excluding offences against
laws with respect to any of the matters specified in List I or List II and
excluding the use of naval, military or air forces or any other armed
forces of the Union in aid of the civil power."

14. Itwas argued that public order will not be disturbed if some persons
are converted in a Church and, therefore, the subject-matter of the
enactment cannot be said to be covered by the phrase 'public order'
We may observe that the legislation is not meant with reference to .any
particular religion. But the injunctions provided by the Act apply to
all religions equally and in addition conversion by force, fraud and
allurement also has been made an offence punishable under Section 4 of
the Act. We shall deal with this aspect a little later. At this stage we
propose to dispose of the arguments relating to public order.

15. As such, it is clear that the .phrase 'public order' ought not to be
confused with 'law and order' or 'public safety'. These three concepts are
altogether different and they convey a different connotation and as the
phrase 'public order' conveys a wider connotation, as laid down by their
Lordships of the Supreme Court in the different cases mentioned above,
we are of the opinion that the subject-matter of the Madhya Pradesh
Dharma Swatantrya Adhiniyam, 1968, falls within the scope of Entry
No. 1 of List II of the Seventh Schedule relating to the State List
regarding public order.
16. With due respect to the learned Judges of the Orissa High Court, we
are unable to concur with the reasoning of that Division Bench for
 213

the reasons already mentioned by us above, particularly with reference

to the several cases and the pronouncement of their Lordships of the
Supreme Court made in those cases. We would, therefore, differ from
the Division Bench of the Orissa High Court and would hold that the
subject-matter of the M. P. Dharma Swatan-trya Adhiniyam, 1968, is
covered by Entry No. 1 of List II of the Seventh Schedule and as
such, the Madhya Pradesh Legislature was competent to enact that
piece of legislation. Further, we would hold that Sections 3, 4 and 5
of the M. P. Dharma Swatantrya Adhiniyam, 1968, do not violate
Article 25(1) of the Constitution of India. But, on the other hand,
they establish the equality of religious freedom for all citizens by
prohibiting conversion by objectionable activities such as conversion
by force, fraud and by allurement.In our opinion, the provision
relating to conversion by allurement cannot be challenged either on
the ground of legislative competence or on the ground of violation of
Article 23(1) of the Constitution.

17.
As a result of the discussion aforesaid, we feel that there is no case
made out for issuance of any writ or order in favour of the petitioner.

18. Both Petition and Revision dismissed.

**********************************************************
 214

REV. STAINISLAUS Vs.: STATE OF

MADHYA PRADESH & ORS.
CITATION: AIR 1977 SC 908
The controversy in the Madhya Pradesh cases relates to the Madhya Pradesh
Dharma Swatantraya Adhiniyam, 1968, hereinafter referred to as the Madhya
Pradesh Act. The controversy in the Orissa cases arises out of the Orissa
Freedom of Religion Act, 1967 hereinafter referred to as the Orissa Act.

The provisions of the ‘two Acts in so far as they relate to prohibition of forcible
conversion and punishment therefor, are similar and the questions which have
been raised before us are common to both of them.

As regards the question of legislative competence, the High Court took

note of some judgments of this Court and held that as "the phrase ‘public order‘
conveys a wider connotation as laid down by their Lordships! of the Supreme
Court in the different cases. We are of the opinion that the subject matter of the
Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 falls within the scope
of Entry No. I of List II of the Seventh Schedule relating to the State List
regarding public order".

On the remaining point relating to testimonial compulsion with reference to

Article 20(3)of the Constitution, the High Court held that section 5 of the
Madhya Pradesh Act read with Form A, prescribed by the Rules, merely made
provision for the giving of intimation to the District Magistrate about
conversion and did not require its maker to make a confession of any offence as
to whether the conversion had been made on account of fraud, force or
allurement, ‘which had been penalised by the Act. The High Court thus held
that mere giving of such information was not violative of Article 30(1) of ‘the
Constitution. But the question of testimonial compulsion within the meaning of
Article 20(3) of the Constitution has not been raised for our consideration.

The Orissa cases arose out of petitions under Article 226 of the Constitution
challenging the vires of the Orissa Act. The High Court stated its conclusions
in those cases as follows:--
 215

(1) Article 25(1) guarantees propagation of religion and conversion is a part of

the Christian religion.

(2) Prohibition of conversion by ‘force‘ or by ‘fraud‘ as defined by the Act

would be covered by the limitation subject to which the right is guaranteed
under Article 25 (1).

(3) The definition of the term ‘inducement‘ is vague and many proselytizing
activities may be covered by the definition and the restriction in Article 25 (1)
cannot be said to cover the wide definition.‘

(4) The State Legislature has no power to enact the impugned legislation
which in pith and substance is a law relating to religion. Entry No. 1 of either
List II or List III does not authorise the impugned legislation.

(5) Entry 97 of List I applies.

The High Court has therefore declared the Orissa Act to be ultra vires the
Constitution and directed the issue of mandamus to the State Government not
to give effect to it. The criminal cases which were pending have been quashed.

The common questions which, have been raised for our consideration are

(1) whether the two Acts were violative of the fundamental right
guaranteed under Article 25(1) of the Constitution, and

(2) whether the State Legislatures were competent to enact them ?

Article 25(1) of the Constitution reads as follows:

"25(1) Subject to public order,‘ morality and health and to the other provisions
of this Part, all persons are equally entitled to freedom of conscience and the
right freely to profess, practice and propagate religion."

Counsel for the appellant has argued that the right to ‘propagate‘ one‘s religion
means the right to convert a person to one‘s own religion. On that basis,
counsel has argued further that the right to convert a person to one‘s own
religion is a fundamental right guaranteed by Article 25 (1) of the Constitution.

The expression ‘propagate‘ has a number of meanings, including "to multiply

specimens of (a plant, animal, disease etc.) by any process of natural
 216

reproduction from the parent stock", but that cannot, for obvious reasons, be
the meaning for purposes of Article 25 (1) of the Constitution. The Article
guarantees a right to freedom of religion, and the expression ‘propagate‘ cannot
there fore be said to have been used in a biological sense.

The expression ‘propagate‘ has been defined in the Shorter Oxford Dictionary
to mean "to spread from person to person, or from place to place, to
disseminate, diffuse (a statement, belief, practice, etc.)" According to the
Century Dictionary (which is an Encylopaedic Lexicon of the English
Language) Vol. VI, ‘propagate‘ means as follows :-

"To transmit or spread from person to person or from place to place; carry
forward or onward; diffuse; extend; as propagate a report; to propagate the
Christian religion".

We have no doubt that it is in this sense. that the word ‘propagate‘ has
been used in Article 25 (1), for what the Article grants is not the right to convert
another person to one‘s own religion, but to transmit or spread one‘s religion by
an exposition of its tenets. It has to be remembered that Article 25 (1)
guarantees "freedom of conscience" to every citizen, and not merely to the
followers of one particular religion, and that, in turn, postulates that there is no
fundamental right to convert another person to one‘s own religion because if a
person purposely undertakes the conversion of another person to his religion, as
distinguished from his effort to transmit or spread the tenets of his religion, that
would impinge on the "freedom of conscience" guaranteed to all the citizens of
the country alike.

It was next been argued by counsel that the Legislatures of Madhya

Pradesh, and Orissa States did not have legislative competence to pass the
Madhya Pradesh Act and the Orissa Act respectively, because their laws
regulate ‘religion‘ and fall under the Residuary Entry 97 in List 1 of the Seventh
Schedule to the Constitution. It is not in controversy that the Madhya Pradesh
Act provides for the prohibition of conversion from one religion to another by
use of force or allurement, or by fraudulent means, and matters incidental
thereto. The expressions "allurement" and ‗fraud‘ have been defined by the Act.
Section 3 of the Act prohibits conversion by use of force or by allurement or by
fraudulent means and section 4 penalises such forcible conversion. Similarly,
section 3 of the Orissa Act prohibits forcible conversion by the use of force or
by inducement or by any Fraudulent means,
 217

and section 4 penalises such forcible conversion. The Acts therefore dearly
provide for the maintenance of public order for, if forcible conversion had not
been prohibited, that would have created public disorder in the States. The
expression "Public order" is of wide connotation. It must have the connotation
which it is meant to provide as the very first Entry in List II. It has been held by
this Court in Ramesh Thapper v. The State of Madras that "public order" is an
expression of wide connotation and signifies state of tranquility which prevails
among the members of a political society as a result of internal regulations
enforced by the Government which they have established".

Reference may also be made to the decision in Ramjilal Modi v. State of U.P.
where this Court has held that the right of freedom religion guaranteed by
Articles 25 and 26 of the Constitution is expressly made subject to public order,
morality and health, and that "it cannot be predicated that freedom of religion
can have no bearing whatever on the maintenance of public order or that a law
creating an offence relating to religion cannot under any circumstances be said
to have been enacted in the interests of public order". It has been held that these
two Articles in terms contemplate that restrictions may be imposed on the rights
guaranteed by them in the interests of public order. Reference may as well be
made to the decision in Arun Ghosh v. State of West Bengal where it has been
held that if a thing disturbs the current of the life of the community, (1) (1950)
S.C.R. 594. (2) (1957) S.C.R. 860 (3) (1966) 1 S.C.R. 709 and does not merely
affect an individual, it would amount to disturbance of the public order. Thus if
an attempt is made to raise communal passions, e.g. on the ground that someone
has been "forcibly" converted to another religion, it would, in all probability,
give rise to an apprehension of a breach of the public order, affecting the
community at large. The impugned Acts therefore fall within: the purview of
Entry I of List II of the Seventh Schedule as they are meant to avoid
disturbances to the public order by prohibiting conversion from one religion to
another in a manner reprehensible to the conscience of the community. The two
Acts do not provide for the regulation of religion and we do not find any
justification for the argument that they fall under Entry 97 of List I of the
Seventh Schedule.

In the result Civil Appeals No. 1489 and 1511 of 1974 and Criminal
Appeal No. 255 of 1974 fall and are dismissed while Civil Appeals No. 344-346
of 1976 are allowed and the impugned judgment of the Orissa High Court
 218

dated 24 October, 1972 is set aside. The parties shall pay and bear their own
costs, in Madhya Pradesh appeals. The State shall pay the respondent costs in
the Orissa appeal according to previous direction.

*****************************************************

UTTARAKHAND HIGH COURT

Girish Kumar Sharma vs. State of Uttrakhand and others

decided on 20 November, 2017
HABC No. 20 of 2017
In Sequel of the order rendered by this Court on 14.11.2017, all the
arrangements for boarding and lodging of Ms.Urja Sharma @ Bhumi were
made by the state Government.

The Court places on record its appreciation for the efforts made by the State
Government for the stay of Ms.Urja Sharma @ Bhumi at Girl‘s Hostel,
Rudrapur.

Ms. Urja Sharma @ Bhumi submits that she intends to go with her parents. The
police is directed to escort Ms.Urja Sharma @ Bhumi to her Parents House.

Mr. Kuldeep Kumar Arya , Purohit, Arya Samaj Mandir, Bhojpur Khedi,
District Bijnaur was produced in compliance of previous order of this court, but
due to changed circumstances, his presence is not required.

Before parting with the Judgement, it needs to be mentioned that that the Court
has come across number of cases where the inter-religion marriages are
organized.
 219

However, in few instances, the conversion of one religion to another religion is

a sham conversion only to facilitate the process of marriage. In order to curb
this tendency, the state government is expected to legislate the Freedom of
Religion Act on the analogy of Madhya Pradesh Freedom of Religion Act,
1986 as well, as Himachal Pradesh Freedom of Religion Act, 2006, without
hurting the religious sentiments of the citizens.

The Court while making this suggestions, is well aware that it is not the role of
the Court to give suggestions to the State Government to legislate but due to fast
changing social milieu, this suggestions is being made.

The petitions stands disposed of accordingly.

 CHAPTER-XI
PROCEEDINGS OF U.P. LEGISLATIVE
ASSEMBLY REGARDING ANTI
CONVERSION
 220

CHAPTER - XI
PROCEEDINGS OF U.P. LEGISLATIVE ASSEMBLY
REGARDING
ANTI- CONVERSION

392 m0iz0 fo/kku lHkk 23 vizSy] 1954

fons'kh iknfj;ksa }kjk /keZ ifjorZu ds fy;s izyksHku
**5- Jh ifjiw.kkZuUn oekZ & D;k ljdkj ds ikl ,slh f'kdk;rsa vkbZ gSa fd b/kj dqN le;
ls fons'kh iknjh /ku dk yksHk nsdj ds gfjtu rFkk vU; xjhc yksxksa dk /keZ ifjorZu djkus dk dk;Z
dj jgs gSa \ D;k ljdkj bl lEcU/k esa viuh uhfr crykus dk d"V djsxh \
MkDVj lEiw.kkZuUn& ;g ckr ns[kus esa vk jgh gS fd dqN le; ls fons'kh iknfj;ksa dk /;ku
mRrj izns'k ds dqN Hkkxksa dh vksj fo'ks"k :i ls x;k gS vkSj ,slh Hkh dqN f'kdk;rsa vk;h gSa fd
yksxksa dks /keZ ifjorZu djus ds fy;s izyksHku Hkh fn;s tkrs gSaA
ljdkj u rks fdlh dks /keZizpkj djus ls jksduk pkgrh gS] u lektlsok ds ekxZ esa ck/kk
Mkyuh pkgrh gS ijUrq og ;g t:j pkgrh gS fd bu dkeksa esa vuqfpr mik;ksa ls dke u fy;k tk;
vkSj u budh vkM+ esa ,sls dke fd;s tk;a tks /keZ izpkj ;k lekt lsok ls oLrqr% vlEc) gSaA
Jh ifjiw.kkZuUn oekZ & D;k ekuuh; x`g ea=h ;g crykus dh d`ik djsx
a s fd mRrj izns'k ds
fdu fo'ks"k Hkkxksa esa bu iknfj;ksa dh dk;Zokgh T;knk c<+ xbZ gS \
MkDVj lEiw.kkZuUn& dqN rks nsgkrksa esa vkSj [kklrkSj ls gekjs mRrj dh rjQ QzkfUV;j esa
dqN mudh fnypLih c<+h gqbZ ekywe gksrh gSA
Jh ifjiw.kkZuUn oekZ & D;k ekuuh; x`g ea=h crykus dh d`ik djsx
a s fd fdu&fdu ns'kksa ds
yksx okLro esa bl dk;Zokgh dks gekjs izns'k eas dj jgs gSa \
MkDVj lEiw.kkZuUn& blesa T;knkrj vesfjdu gSa ysfdu dqN yksx vkSj ns'kksa ds Hkh gSaA
Jh ifjiw.kkZuUn oekZ & D;k ekuuh; x`g ea=h crykus dh d`ik djsxa s fd /keZ izpkj ds dk;Z
ls lac) tks mUgksaus mRrj fn;k gS D;k /keZ izpkj ds vfrfjDr mudk dqN vkSj Hkh mn~ns'; gS \
MkDVj lEiw.kkZuUn& mn~ns'; dh ckr rks os gh tkusa ysfdu ,d vk/k txg ,slk ns[kk x;k
fd pquko esa Hkh os fnypLih ysrs ik;s x;s vkSj yksxksa ls ,sls loky fd;s tks fd fdlh ,d fons'k ds
jgus okys dks fdlh nwljs ns'k esa ugha djus pkfg;sA
 221

Jh nsodh uUnu foHko ¼ftyk vkxjk½& D;k ljdkj bu iknfj;ksa dks tks /keZ ds vykok nwljs
dk;Z dj jgs gSa mRrj izns'k ls ckgj Hkstus dh d`ik djsxh \
MkDVj lEiw.kkZuUn& ,sls iz'uksa ij izn's k dh ljdkj vkSj Hkkjr ljdkj nksuksa gh fopkj dj
jgh gSa vkSj gesa vk'kk gS fd tYnh gh bl lEcU/k esa dksbZ fuf'pr dk;Zokgh dh tk;xhA
Jh y{ehje.k vkpk;Z& D;k ekuuh; x`g ea=h dks ;g Kkr gS fd eFkqjk ftys esa bl izdkj ds
/keZ ifjorZu ds fy;s iknfj;ksa }kjk fy[ks gq;s dqN bdjkjukesa izkIr gq;s gSa ftuesa /keZ ifjorZu ds fy;s
fuf'pr /ku fn;s tkus dk opu gS \

***************************************************
m0iz0 fo/kku lHkk 393
iz'uksRrj
MkDVj lEiw.kkZuUn& eSaus ,slh pht dh rjQ b'kkjk fd;k gSA eSaus ;g dgk Fkk fd
,slh f'kdk;rsa vk;h gSa fd yksxksa dks /keZ ifjorZu ds fy;s izyksHku fn;k tkrk gSA
Jh f'ko dqekj 'kekZ ¼ftyk fctukSj½& D;k ljdkj dks ekywe gS fd /keZ ifjorZu ds
lkFk ckgj ds fdzf'pu fe'kujh yksx ;gka ds yksxksa dks ,UVh us'kuy vkSj ,UVh bafM;u cuk
jgs gSa \
MkDVj lEiw.kkZuUn& vius tokc esa eSaus bldk Hkh dqN ladsr fd;k Fkk fd /keZ
ifjorZu ds lkFk&lkFk dqN ,slh phtsa Hkh vk tkrh gSa tks lekt fojks/kh dk;ksZa ls lacaf/kr gSaA
Jh jkenkl vk;Z ¼ftyk eqt¶Qjuxj½& D;k ekuuh; ea=h crykus dh d`ik djsaxs fd
izn's k esa cgqr ls gfjtu HkkbZ gekjs vkfFkZd vkSj lkekftd dfBukb;ksa dh otg ls bZlkbZ /keZ
dcwy dj jgs gSa \
MkDVj lEiw.kkZuUn& eSa ugha tkurk fd izLrqr iz'u ls bldk D;k lEcU/k gSA bl
iz'u ds }kjk gekjs gfjtu Hkkb;ksa ds lkFk ?kksj vU;k; fd;k tk jgk gSA eSa ;g le>rk gwWa
fd mudh /kkfeZd Hkkouk dgha T;knk izcy gS vkSj eSa ugha ekurk fd og brus fxjs gq;s gSaA
Jh ukjk;.k nRr frokjh& D;k ljdkj ds ikl ,slh f'kdk;rsa vk;h gSa fd dqN
fons'kh iknfj;ksa ds ikl VªkUlfeVj Hkh gSa \
MkDVj lEiw.kkZuUn& ;g izkekf.kd :i ls rks ugha ekuk tk ldrk ysfdu dHkh&dHkh
,slh f'kdk;rsa vk tkrh gSa \
Jh ukjk;.k nRr frokjh& D;k ljdkj ds ikl ekuuh; Jh gjxksfoUn iUr us cgqr ls
i= bl izdkj ds Hksts fd vYeksM+k ftys esa fons'kh iknjh bl izdkj dh gjdr dj jgs gSa
ftlls ;g ekywe gksrk gS fd muds ikl VªkUlfeVj gS vkSj mlls og [kcj Hkstrs gSaA
MkDVj lEiw.kkZuUn& eSa le>rk gWwa fd ekuuh; Jh gjxksfoUn iUr ds i=ksa dh ckrsa
eq>s ;kn ugha gS fdUrq bl izdkj dh f'kdk;rsa gekjs ikl vkrh jgrh gSaA
Jh xsank flag& D;k ;g lgh gS fd iknfj;ksa dh xfrfof/k ,sls {ks=ksa esa vf/kd gS tgka
ij xjhch cgqr t;knk gS vkSj blh otg ls xksj[kiqj fMohtu esa Hkh mudk dke cgqr T;knk
c<+ jgk gS \
 222

MkDVj lEiw.kkZuUn& th ugha] mudh xfrfof/k gj ,d txg ij gS ijUrq tSlk eSaus

fuosnu fd;k fd [kklrkSj ls mudk /;ku bl le; QzkfUV;j dh rjQ x;k gS xjhch dh
rjQ ugha x;k gS vkSj lEHkor% ogka ij nwljh 'kDy gksxhA
Jh jkegsr flag ¼ftyk eFkqjk½& D;k ekuuh; ea=h crykus dh d`ik djsx a s fd eFkqjk
ftys ds djlkSjk xzke esa tc gfjtuksa dk nwljk ny :i;k nsdj Hkh /keZ ifjorZu ds paxqy esa
u Qalk rks fQj bZlkb;ksa us fxjtk ?kj dks rksM+us dk >wBk bYtke yxkdj eqdnek pyk;k \
MkDVj lEiw.kkZuUn& ;g rks bl izdkj ds ekeys gSa fd ftu ij vHkh eqdnek py
jgk gSA eSa le>rk gWw fd bl lEcU/k esa vHkh dqN dguk mfpr ugha gksxkA

**************************************************
394 m0iz0 fo/kku lHkk 23 vizSy]
1954

Jh /keZflag ¼ftyk cqyUn'kgj½& D;k ljdkj ds ikl dqN vkadMs ,sls gSa fd ftuls
;g irk py lds fd brus yksx iknfj;ksa }kjk bZlkbZ cuk;s tk pqds gSa \
MkDVj lEiw.kkZuUn& tgka rd gedks ekywe gS yksx cgqr de bZlkbZ cus gSaA
Jh Hkxoku lgk;& D;k ljdkj bu fons'kh iknfj;ksa dks tks fd gekjs ?kjsyw ekeyksa esa
fnypLih ysrs gSa mudks ns'k ls ckgj Hkstus dh ckr ij fopkj djsxh \
Jh v/;{k& eSa bldh btktr ugha nsrk A ns'k ds ckgj Hkstus dh ckr dgh xbZ og
bl izns'k ls dksbZ lEcU/k ugha j[krhA

******************************************************************************
365 m0iz0 fo/kku lHkk 07 ebZ] 1954

iz'uksRrj
eFkqjk ftys esa vesfjduksa }kjk /keZ ifjorZu djkds bZlkbZ cukuk
vkSj dqN vk;Z lekft;ksa dh fxj¶rkjh

*16& Jh cnzh ukjk;.k feJ ¼ftyk nsofj;k½ &D;k ljdkj dks

Kkr gS fd xr nks o"kksZa esa vesfjdu fe'ku ds yksxksa us eFkqjk ftyk
esa /ku nsdj vkB gtkj vknfe;ksa dks bZlkbZ cuk;k \
 223
366 m0iz0 fo/kku lHkk 07 ebZ] 1954
MkDVj lEiw.kkZuUn& LFkkuh; esFkksfMLV rFkk jkseu dSFkksfyd fe'kufj;ksa us
xr nks o"kksaZ esa yxHkx 250 xzkeh.k O;fDr;ksa dks /keZ ifjorZu djkdj bZlkbZ cuk;k
gSA ijUrq ljdkj ds ikl ,slh dksbZ lwpuk ugha gS fd bl /keZ ifjorZu esa /ku dk
Hkh mi;ksx fd;k x;k gSA
*17 Jh cnzh ukjk;.k feJ& D;k ljdkj dh ;g uhfr gS fd fonsf'k;ksa dks
;gka dh vui<+ rFkk xjhc turk dh eukso`fRr cnyus dk bl rjg dk ekSdk fn;k
tk; \
MkDVj lEiw.kkZuUn& th ughaA
Jh usdjke 'kekZ ¼ftyk vyhx<+½& D;k ekuuh; ea=h crykus dk d"V djsx a s
fd ;s vejhdu eFkqjk ftys esa dc ls gSa \
MkDVj lEiw.kkZuUn& blds fy, lwpuk dh vko';drk gSA
ohjsUnz oekZ& ftu 250 vknfe;ksa dk /keZ ifjorZu fd;k x;k osa dkSu yksx
gSa \
MkDVj lEiw.kkZuUn& os igys fgUnw Fks] tkr fcjknjh dk irk ugha gSA
Jh y{ehje.k vkpk;Z& D;k bu /keZ ifjorZu djus okyksa ds lEcU/k esa dqN
dkxtkr cjken gq;s gSa rFkk bdjkjukesa fudys gSa fd ,d fuf'pr /kujkf'k mudks
nh xbZ vkSj ;fn os iqu% /keZifjorZu djsa rks og /kujkf'k okil ysus dh O;oLFkk dh
xbZ gSa\
MkDVj lEiw.kkZuUn& ,slk dksbZ izek.k gekjs ikl ugha gS fd fuf'pr :i ls
;g dgk tk lds fd ;g Bhd gSA dqN fnu igys eSaus ;g dgk Fkk fd dqN ,sls
izek.k Hkh feys gSa fd /keZ ifjorZu ds fy;s :i;k iSlk Hkh [kpZ fd;k x;kA
Jh usdjke 'kekZ& eFkqjk ftys esa fdrus vejhdu vkSj nwljs yksx vkSj ns'kksa
ds gSa tks bl dk;Z esa yxs gq;s gSa\
MkDVj lEiw.kkZuUn& lwpuk dh vko';drk gSA
Jh jkenkl vk;Z ¼ftyk eqt¶Qjuxj½& D;k ljdkj tks yksx bZlkbZ gks x;s
gSa mldk dkj.k tkuus ds fy;s dksbZ desVh fu;qDr djus dk fopkj dj jgh gS \
MkDVj lEiw.kkZuUn& bldh dksbZ [kkl t:jr ugha ekywe gksrhA
Jh jkepUnz fody& D;k lR; gS fd eFkqjk ftys esa vk;Zlekt ds dqN
dk;ZdrkZvksa dks bl /keZ ifjorZu ds dke dks jksdus ds fy;s fxj¶rkj fd;k x;k \
MkDVj lEiw.kkZuUn& izpkj jksdus ds dbZ <ax gksrs gSaA dqN O;k[;ku ogka
gq;s Fks ftlds QyLo:i dqN yksx ,d fxtkZ?kj esa ?kql x;s] ogka dh bekjr vkSj
'kh'ks rksM+ fn;s x;s vkSj vxj izpkj dk ;gh rjhdk gks rks t:j dqN fxj¶rkfj;ka
bl lEcU/k esa gqbZA
Jh nsodh uUnu foHko ¼ftyk vkxjk½& D;k ekuuh; ea=h th dks bu
fe'kufj;ksa dh dqN jktuSfrd gypysa Hkh ekywe gqbZ gSa \
MkDVj lEiw.kkZuUn& eSaus 8&7 fnu igys ;gka dgk Fkk fd dqN ,slk dk;Z
ekywe gksrk gS tks fonsf'k;ksa dks ugha djuk pkfg;s] bldh vksj eSaus dkQh ladsr
fd;k Fkk vkSj eSa le>rk gwW fd blds fy;s dqN t;knk dguk mfpr ugha gksxkA

***************************************************
 224
367 m0iz0 fo/kku lHkk 07 ebZ] 1954

iz'uksRrj

Jh y{ehje.k vkpk;Z& 107 dk eqdn~ek tks fxtkZ?kj ds lEcU/k esa

py jgk gS mlesa ,l0 vks0 cynso rFkk vU; lkf{k;ksa us D;k ;g Lohdkj
fd;k gS fd iknfj;ksa }kjk /ku nsdj izpkj djus dk iz;Ru fd;k tkrk gS \
Jh v/;{k& ;s ckrsa eqdnesa ds flyflys esa gSa tks lctqfMl gSA eSa
bldh btktr ugha nsrkA
Jh f'kodqekj 'kekZ ¼ftyk fctukSj½& D;k ljdkj vejhdu
fe'kufj;ksa dh xfrfof/k;ksa ds lEcU/k esa rgdhdkr djkus ds fo"k; esa tkap
djkus dh lksp jgh gS \
MkDVj lEiw.kkZuUn& blds lEcU/k esa eSa ;g fuosnu dj pqdk gWw fd
;g iz'u dsUnzh; vkSj izknsf'kd ljdkjksa ds lkeus gSA
***********************************************

519 m0iz0 fo/kku lHkk

iz'uksRrj
*lEeku ds fy, /keZ ifjorZu djs^a uked iqLrd dks tCr djus ij xkSj
**6&Jh fuR;kuUn Lokeh&
D;k ljdkj dks fofnr gS fd Jh vkj0,u0 'kkL=h] 81] ukFkZ
,osU;w] ubZ fnYyh }kjk izdkf'kr rFkk mRrj izns'k ljdkj }kjk vius
iqLrdky;ksa ds fy;s Lohd`r iqLrd ÞlEeku ds fy;s /keZ ifjorZu djsaß esa
xhrk dks xM+fj;s dk xkuk ek= Þosn cukus okyksa dks vfodflr rFkk
vlaLd`rß] ÞejkBk] tkV] vghj] flD[k] ekjokM+h vkfn dks vNwrß rFkk
Þguqeku th dks O;fHkpkjhß dgk x;k gS \ß ;fn gka] rks D;k ljdkj bl
iqLrd dks nh xbZ ekU;rk dks okil ysus rFkk tCr djus dh dk;Zokgh
djsxh \
 225
Jh vkse izdk'k flag&
Jh vkj0,u0 'kkL=h] 81] ukFkZ ,osU;w] ubZ fnYyh }kjk izdkf'kr
ÞlEeku ds fy, /keZ ifjorZu djsßa uked iqLrd esa dqN vkifRrtud
ckrsa ikbZ xbZ gSaA iqLrd u rks iqLrdky;ksa ds fy, Lohd`r gS vkSj u
ekU;rk izkIr gSA blds tCr djus dk iz'u ljdkj ds fopkjk/khu gSA
Jh fuR;kuUn Lokeh&
bl iqLrd ds ckjs esa ljdkj dk /;ku lcls igys dc x;k \
Jh vkse izdk'k flag&
;g f'kdk;r ljdkj dks twu] 69 esa izkIr gqbZA
Jh fuR;kuUn Lokeh&
D;k ;g f'kdk;r iz'udrkZ ds }kjk dh x;h vkSj ml ij
dk;Zokgh dh x;h \
Jh vkse izdk'k flag&
blds fy, lwpuk dh vko';drk gksxhA oSls gfjtu lgk;d
foHkkx esa f'kdk;r vkbZ FkhA
*****************************************************************

333 m0iz0 fo/kku lHkk 24 fnlEcj]

1954

iz'uksRrj
jkeiqj ftys esa bZlkbZ fe'kufj;ksa }kjk gfjtuksa dk /keZ&ifjorZu
*43& Jh nkÅn;ky [kUuk ¼ftyk eqjknkckn½ ¼vuqifLFkr½& D;k ;g
lp gS fd gky gh esa jkeiqj ftys esa bZlkbZ fe'kujht us cgqr cM+h la[;k esa
gfjtu Hkkb;ksa dks vuqfpr jhfr ls bZlkbZ cuk;k vkSj mudh pksVh ds cky
dkVdj mUgsa vejhdk Hkstk \
Jh eqt¶Qj glu& ;g lp gS fd jkeiqj ftys esa fdzf'p;u fe'ujht
us dqN gfjtu dqVqEcksa dks bZlkbZ cuk;k ijUrq FkksM+s gh vjls ds ckn buesa ls
T;knkrj bZlkbZ /keZ NksM+dj fQj fgUnw cu x;sA

*44& Jh nkÅn;ky [kUuk ¼vuqifLFkr½& ;fn gka] rks bl izdkj fdrus

gfjtu bZlkbZ cuk;s x;s \
 226
Jh eqt¶Qj glu& bZlkbZ cukrs le; pksfV;ka izFkk ds vuqlkj
dkV nh xbZ FkhaA bldk dksbZ izek.k ugha fd mudh pksVh dkVdj mUgsa
vesfjdk Hkstk x;kA

*45& Jh nkÅn;ky [kUuk ¼vuqifLFkr½& D;k ljdkj d`i;k

crk;sxh fd bl lEcU/k esa mldh D;k uhfr gS vkSj og D;k dk;Zokgh dj jgh
gS ftlls fonsf'k;ksa }kjk vuqfpr izdkj ls /keZ&ifjorZu u djk;k tk lds \
Jh eqt¶Qj glu& ljdkj u rks fdlh dks /keZ izpkj djus ls
jksduk pkgrh gS vkSj u lekt lsok ekxZ esa ck/kk Mkyuk pkgrh gS ijUrq og
;g t:j pkgrh gS fd bu dkeksa esa vuqpfr mik;ksa ls dke u fy;k tk;A
Jh f'koukjk;.k ¼ftyk cLrh½&D;k ljdkj us jkeiqj esa bldh tkap
djkbZ fd mudh pqfV;k dkVh xbZ \
Jh eqt¶Qj glu& eSa bldk tokc ns pqdk gWwA
Jh eqgEen 'kkfgn Qk[kjh ¼ftyk xksM a k½& D;k xouZesaV esgjckuh
djds cryk;sxh fd ,sls [krjukd tekus esa tc fd lwcs dh gkyr Bhd ugha
gS bZlkb;ksa dks bl rjg ls /keZ izpkj djus ls jksdk tk ldsxk \
Jh eqt¶Qj glu& iz'u la[;k 45 esa eSa bu lokyksa dk tokc ns
pqdk gWwA
**************************************************************************

uksV& rkjkafdr iz'u 43&45 rd Jh f'koukjk;.k us iwNsA

334 m0iz0 fo/kku lHkk 24 fnlEcj]

1954
Jh eqgEen 'kkfgn Qk[kjh & D;k xouZeVsa dks ;g ekywe gS fd
bZlkb;ksa dh bl gjdr ls voke esa xe o xqLlk QSyk gqvk gS vkSj bldh
bRryk mUgksua s xouZesaV dks nh gS \
Jh eqt¶Qj glu& tgka rd xe o xqLlk dk lEcU/k gS og lgh
gSA bRryk ds ckjs esa eSa dqN dg ugha ldrkA
Jh jke dqekj 'kkL=h& D;k ekuuh; ea=h th d`ik djds cryk;saxs
fd ml vuqfpr jhfr esa dsoy pqfV;k dkVuk gh gS ;k dksbZ vkSj Hkh izdkj gS
\
 227

Jh eqt¶Qj glu& vxj dksbZ /keZ cny ysrk gS vkSj mldh

pqfV;k dkV nh tk; rks mldks vuqfpr ugha dgk tk ldrk] ysfdu ftl
rjhds ls mUgksua s izpkj fd;k og vuqfpr FkkA
**************************************************************
759 m0iz0 fo/kku lHkk cq/kokj] 13 viSzy]
1960
iz'uksRrj
vYilwfpr rkjkafdr iz'u
lEHky esa ,d fgUnw ckyd dk cykr~ /keZ& ifjorZu
**1& Jh xksfoUnflag fo"V ¼ftyk vYeksM+k½
¼vuqifLFkr½&D;k ljdkj dks Kkr gS fd fnukad 29 ekpZ] 1960 dks
lEHky] ftyk eqjknkckn] esa ,d vig`r vYio;Ld fgUnw ckyd dk
tcjnLrh /keZ ifjorZu fd;s tkus dh fjiksVZ feyus ij iqfyl us 6
O;fDr fxj¶rkj fd;s ftuesa ls ,d us [k.M e.Myk/kh'k dks c;ku
fn;k fd mDr yM+dk 1 ?kUVs ds Hkhrj mifLFkr dj fn;k tk;sxk
\ ;fn gka] rks D;k yM+ds dks cjken dj fy;k x;k gS\
x`g ea=h ¼Jh deykifr f=ikBh½& th gkaA ,slh fjiksVZ Fkkuk
lEHky] ftyk eqjknkckn esa fy[kkbZ xbZ vkSj bl lEcU/k esa 6
O;fDr fxj¶rkj fd;s x;sA buesa ls fdlh O;fDr us yM+ds dks ,d
?kUVs esa mifLFkr djus dk c;ku ,l0 Mh0 ,e0 dks fn;k bldh
lwpuk ljdkj ds ikl ugha gSA yM+dk vHkh rd cjken ugha gqvk
gSA
**2& Jh xksfoUnflag fo"V ¼vuqifLFkr½& D;k ;g lgh gS
fd lEHky ds Fkkusnkj rFkk dqN izeq[k fgUnw ukxfjdksa dks ekj
Mkyus dh /kedh ds i= feys gSa \
Jh deykifr f=ikBh& ,slh dksbZ lwpuk ljdkj dks vHkh
rd izkIr ugha gqbZ gSA
******************************************************
 228
28 m0iz0 fo/kku lHkk 25 Qjojh] 1986 vad&4

iz/kkuk/;kid izkbejh fon~;ky; Qrsgx<+] Q:Z[kkckn n~okjk /keZ ifjorZu

8& Jh czEg nRr fn~oosnh&
D;k eq[;ea=h crkus dh d`ik djsaxs fd tuin Q:Z[kkckn
esa izkbejh fon~;ky; uxyk nhuk ¼Qrsgx<+½ ds iz/kkuk/;kid Jh
fxjoj yky gfjtu n~okjk /keZ ifjorZu dj ysus dh lwpuk ftyk
eftLVªV Q:Z[kkckn dks tqykbZ] 1985 esa izkIr gqbZ gS \ ;fn gka]
rks mldk dkj.k D;k gS vkSj bl laca/k esa ljdkj us vc rd D;k
dk;Zokgh dh gS \
Jh ohj cgknqj flag&
th ughaA vU; iz'u ugha mBrsA
****************************************************
42 m0iz0 fo/kku lHkk 24 ekpZ] 1986 bZ0 vad&10

Jh ohj cgknqj flag&

izkIr lwpuk ds vuqlkj T;ksfruxj dq"B jksx fuokj.k dsUnz
eksguyky xat esa jg jgs dq"B jksxh Jh fueZy] Jh 'kadj rFkk Jh thou dks
tcju ck/; djds bZlkbZ /keZ esa ifjofrZr ugha fd;k x;k gS cfYd mUgksaus
LosPNk ls bZlkbZ /keZ viuk;k gSA T;ksfruxj dq"B fuokj.k dsUnz eksguyky
xat] y[kuÅ esa vKkr cPpksa dk /keZ ifjofrZr djus dh dksbZ ;kstuk ugha gSA
T;ksfr uxj dq"B fuokj.k dsUnz eksgu ykyxat] y[kuÅ ds rhu dq"B jksfx;ksa
dk /keZ ifjorZu&
54& Jh 'kkjnk izrki&
D;k eq[; eU=h crkus dh d`ik djsx a s fd T;ksfr uxj dq"B fuokj.k
dsUnz eksgu yky xat ¼y[kuŽ ds rhu dq"B jksxh Jh fueZy 'kadj vkSj thou
dks tcju djds bZlkbZ /keZ esa ifjofrZr fd;k x;k gS \ D;k ;g lgh gS fd
bl dsUnz
 229
n~okjk dqN idM+s x;s vKkr cPpksa dks bZlkbZ /keZ esa ifjofrZr djus dh ;kstuk
gS\ ;fn gka] rks ljdkj bldh jksdFkke gsrq D;k dk;Zokgh djus tk jgh gS \
*****************************************************
60 m0iz0 fo/kku lHkk 10 ekpZ] 1989 bZ0 vad&10

izns'k esa /keZ ifjorZu dh ?kVukvksa ds lEcU/k esa fu;e 301 ds vUrxZr
lwpuk
Jh v'kksd cktis;h&
ekU;oj] izns'k esa /keZ ifjorZu dh ?kVuk;sa fpUrk dk dkj.k curh tk
jgh gSA o"kksZa ls izns'k esa LFkkfir vkilh ln~Hkko rFkk ,d nwljs ds HkkbZ pkjk
ij iz'u&fpUg yxrk tk jgk gSA xr fnuksa tuin esjB esa xzke eokuk esa
ve`r izpkj ds volj ij gfjtuksa dks ve`r iku djkdj fl[k /keZ Lohdkj
djkus ls lkjs tuin dh fgUnw /kekZoyfEc;ksa dks xgjk vk?kkr igqWapk gSA ;|fi
/keZ Lohdkj djus dh Lora=rk lafo/kku esa fufgr gSA ijUrq ncko] Hk; vFkok
fdlh ykyp esa Mkydj /keZ ifjorZu djk;k tk jgk gS] fpUrk dk dkj.k gSA
;g Hkh tkudkjh feyh gq;h gS fd esjB esa gfjtuksa us LosPNk ls fl[k /keZ
vaxhdkj ugha fd;k cfYd mu ij fujUrj ncko Mkyk x;k] rjg&rjg ls mUgsa
ykyp fn;s x;s rFkk fl[k /keZ Lohdkj djus ds ckn lqugys lkekftd Hkfo";
dk LoIuk fn[kk;k x;kA bl o"kZ dh tuojh ds vUr ls ysdj vc rd /keZ
ifjorZu dh cgqr lh ?kVuk;sa izdk'k esa vk pqdh gS ijUrq xzke eokuk esa cM+s
iSekus ij gfjtu fgUnqvksa n~okjk fl[k /keZ Lohdkj djuk iwjs {ks= esa vlUrks"k
vkSj fpUrk dk dkj.k cu x;k gSA bl ?kVuk ls iwjs {ks= esa vlUrks"k dh
lqxcqxkgV gS] fdlh Hkh le; lkEiznkf;d ruko mRiUu gks ldrk gSA
vr% yksd egRo ds bl rkRdkfyd ,oa lqfuf'pr fo"k; dh vksj
lnu dk /;ku vkdf"kZr djus dh vuqKk pkgrk gWw fd vuqjks/k djrk gWw
fd ljdkj vuqpfr /keZ ifjorZu dh ?kVukvksa dks jksdus dh dkjxj dne
mBk;sA
 230
66 m0iz0 fo/kku lHkk 23 tuojh] 1991 vad&3
tuin cqyUn'kgj esa fLFkr vej flag iksLV xzstq,V dkyst y[kkoVh ds
okf"kZd lEesyu esa gfjtuksa dk /keZ ifjorZu
156&Mk0 y{ehdkUr cktis;h&
D;k eq[; ea=h ;g crkus dh d`ik djsaxs fd lbZn vCnqy lRrkj]
iz/kkukpk;Z] vej flag] iksLV xzstw,V dkyst] y[kkoVh] ftyk cqyUn'kgj
dh v/;{krk esa xzke vthtkckn] tuin cqyUn'kgj esa 2 ekpZ] 90 dks gq,
okf"kZd lEesyu esa gfjtuksa dk /keZ ifjorZu djk;k x;k gS \ ;fn gka] rks
D;k 'kklu bldh tkap djkdj Jh lRrkj ds f[kykQ dk;Zokgh djsxk \
Jh eqyk;e flag ;kno&
th gkaA
fnukad 2 ekpZ] 1990 dks xzke vthtkckn] tuin cqyUn'kgj esa
bLykeh enjlk dk okf"kZd lEesyu gqvk Fkk ftlesa lbZn vCnqy lRrkj]
iz/kkukpk;Z vejflag fMxzh dkyst y[kkoVh us Hkkx fy;k FkkA lEesyu esa
Jh xaxkoklh iq= Jh fd'kun;ky tkVo rFkk Jh ekud pUn us LosPNk ls
bLyke /keZ Lohdkj fd;k Fkk ijUrq 4&5 fnu ckn xkao tkykSu esa
vk;ksftr iapk;r esa iqu% bu nksuksa O;fDr;ksa us fgUnw /keZ dks Lohdkj dj
fy;k vkSj fgUnw /kekZoyfEo;ksa dh rjg gh jg jgs gSaA
vko';drk izrhr ugha gksrhA

*********************************************************************************
 231

40 m0iz0 fo/kku lHkk 14 ebZ] 2001 vad&5

tuin gjnksbZ] Fkkuk eYykoka ds xzke efV;keÅ esa tcju /keZ ifjorZu
dh tkudkjh

39& Jh ';kenso jk; pkS/kjh&

D;k eq[;ea=h crkus dh d`ik djsaxs fd Fkkuk eYykoka xzk0
efV;keÅ ft0 gjnksbZ esa tuojh] 2001 esa jes'k ukbZ ds 16 o"khZ; iq= dk
tcfj;k /keZ ifjorZu fd;k x;k Fkk \ ;fn gka] rks D;k ljdkj bl laca/k
esa dksbZ dk;Zokgh dj jgh gS \ ;fn gka] rks D;k \ ;fn ugha] rks D;ksa \
Jh jktukFk flag&
xzke efV;keÅ Fkkuk eYykoka] tuin gjnksbZ fuoklh eats'k iq=
ckcw ukbZ mez 15&16 o"kZ ds /keZ ifjorZu djk;s tkus ds izdj.k esa Jh
jes'k ukbZ iq= ckcw ukbZ }kjk Fkkuk eYykoka ij fnukad 27&02&2001 dks
djhc nks lIrkg iwoZ dh] ?kVuk dh fyf[kr lwpuk nh x;h Fkh ftlds
vk/kkj ij eq0v0la0&32@2001 /kkjk 295 ,@324@342 Hkk0na0fo0 dk
vfHk;ksx fo:) gdhd iq= lqcsnkj] vghd iq= vtht] rljhQqy iq=
eq'rkd ,oa eUuku iq= gdhd fuoklhx.k xzke efV;keÅ Fkkuk eYykoka
gjnksbZ iathd`r gksdj mldh foospuk dh x;hA gdhd o vghd fnukad
27&02&2001 dks gh fxj¶rkj dj tsy Hksts x;sA vfHk;qDr rljhQqy o
eUuku dze'k% fnukad 14&03&2001 o 19&03&2001 dks ek0 U;k;ky; ds
le{k vkReleiZ.k dj tsy x;sA foospuksijkUr lHkh vfHk;qDrx.kksa ds
fo:) vkjksi i= fnukad 31&03&2001 dks U;k;ky; izsf"kr fd;k x;kA
iz'u ugha mBrkA
******************************************************************************
 232

35 m0iz0 fo/kku lHkk 18 twu] 2012 bZ0 vad&5

tuin esjB ds xzke gjkZ Fkkuk l:jiqj esa jkgqy iq= t;iky dk /keZ
ifjorZu djkus dk dfFkr izdj.k
13& Jh lR; izdk'k vxzoky&
D;k eq[; ea=h crkus dh d`ik djsaxs fd esjB tuin ds xzke gjkZ
Fkkuk l:jiqj esa ukckfyx jkgqy iq= t;iky tkfr dqEgkj dks ,d fo'ks"k
leqnk; ds O;fDr;ksa us cgyk&Qqlykdj ekg vizSy] 2012 esa /keZ
ifjorZu dj fn;k x;k Fkk \ ;fn gka] rks ljdkj }kjk nksf"k;ksa ds fo:)
vc rd D;k dk;Zokgh dh x;h gS \ ;fn ugha] rks D;ksa \
Jh vf[kys'k ;kno&
jkgqy }kjk dksbZ /keZ ifjorZu ugha fd;k x;k gSA orZeku esa og
vius ekrk&firk ds lkFk ldq'ky jg jgk gSA
iz'u ugha mBrkA
iz'u ugha mBrkA

403 m0iz0 fo/kku lHkk

lk{kjrk fudsru] y[kuÅ }kjk /keZ ifjorZu rFkk bls nh xbZ tehu
*36& loZJh jkeyky jkgh] vuUrjke tk;loky] lw;ZukFk mik/;k;
¼ftyk tksuiqj½] gjujk;u] ¼ftyk ihyhHkhr½] euksgj yky ¼ftyk dkuiqj½]
jkts'oj flag ¼ftyk cjsyh½] cStukFk] 'khryk izlkn flag ¼ftyk xksM
a k½]
egkre ¼ftyk xksj[kiqj½] jke foykl ikaMs;] eksgEen vljkj vgen rFkk
uRFkkjke jkor ¼ftyk ckjkcadh½&
D;k ljdkj dks bl ckr dh tkudkjh gS fd y[kuÅ esa lk{kjrk
fudsru uke dh vejhdk ljdkj dh lgk;rk ls dksbZ ,slh laLFkk py
jgh gS] tks lk{kjrk fodkl ds uke ij Hkkjrh; ukxfjdksa dk /keZ ifjorZu
djus
 233

dk dk;Z dj jgh gS \ ;fn gka] rks D;k ljdkj 'kh?kz bls jksdus dk iz;kl
djsxh \
Jh pj.k flag&
lk{kjrk fudsru ¼fyVjslh gkml½ uke dh laLFkk y[kuÅ esa
LFkkfir gSA ftls oYMZ ,twds'ku budkjiksjsVsM] U;w;kdZ ls rFkk ns'k
fons'k dh vU; laLFkkvksa ls vkfFkZd lgk;rk feyrh gSA vHkh rd ,slh
dksbZ ckr ns[kus esa ugha vkbZ ftlls ;g le>k tk; fd ;g laLFkk
lk{kjrk ds uke ij /keZ ifjorZu dk dk;Z dj jgh gSA
*37& loZJh jke yky jkgh] vuUrjke tk;loky] lw;ZukFk] mik/;k;]
gjujk;u] euksgjyky] jkts'oj flag] cStukFk] 'khryk izlkn flag]
egkre] jke foykl ikaMs;] eksgEen vljkj vgen rFkk uRFkkjke jkor&
D;k ljdkj ;g Hkh crykus dh d`ik djsxh fd lk{kjrk fudsru
uke dh bl laLFkk dks dsUnzh; ;k izkns'kh; ljdkj }kjk Hkwfe nh xbZ gS \
;fn gka] rks ;g Hkwfe mRrj izns'k ds fdu&fdu LFkkuksa ij fdruh&fdruh
rFkk fdl dk;Z ds fy;s nh xbZ gS \
Jh pj.k flag&
jkT; ljdkj dh dksbZ Hkwfe bl laLFkk dks ugha nh xbZ fdUrq
dsUa nzh; ljdkj }kjk nh xbZ gS ;k ugha bldh lwpuk ugha gSA

**************************************
 CHAPTER-XII
LEGISLATIVE COMPETENCE OF
STATE LEGISLATURE TO REGULATE
FREEDOM OF RELIGION
 234

CHAPTER - XII
LEGISLATIVE COMPETENCE OF STATE
LEGISLATURE TO REGULATE FREEDOM OF
RELIGION

A written constitution lays down certain mechanism of enactment which

a Parliament established under that constitution must obey. A written
constitution establishes fundamental maxims certain rules of conduct by which
departments of government shall shape their policies and their conduct. Its
importance lies in the fact that it seeks to control those who govern and those
who are governed. It sets the standard by which is measured the duties, the
obligations, the powers, the privileges and the rights it has conferred. This
means that there are restrictions on the power of Parliament as well as State
Legislature to make laws.
A constitution expresses the sovereign will of people and embodies the
soul of people. It is both a legal document and a political testament. It is the
fountain of all power and the source of all authority. Its provisions are not mere
rules of conduct for the guidance of society, but also command to be obeyed. It
is not an equation in mathematics to be interpreted by reference to numbers; it
is, in a sense, organic. It grows with the society for which it was conceived.
It is true that not all the provisions of a constitution are mandatory and
thus subject to jurisdiction. A constitution creates authorities and vests certain
powers in those authorities. It gives certain rights to persons as well as to
bodies of persons. It imposes obligations as much as it confers privileges and
powers.
 235

All of these duties, obligations, powers, privileges and right must be

exercised in accordance with the letter of the constitution. More than that, they
should be exercised and enforced in accordance with the spirit of the
Constitution. Its supremacy and its permanence depend upon its maintenance as
the fundamental law. ‗To what purpose‘, asked Chief Justice John Marshall in
Marbury vs. Madison, 1 Cranch 137, L.Ed 60 (1803), are powers limited, and
to what purpose is that limitation committed to writing, if these limits may, at
any time, be passed by those intended to be restrained.‘
An enactment is void from the beginning if it is inconsistent with the
constitution, or in contravention of the constitution. A constitution brings into
sharp focus the theory of parliamentary sovereignty.
In order to legislate on any subject, it is first necessary to examine the
Legislative Competence. Constitution of India, enumerates the legislative
powers of Union and State. The present subject is related to religion, therefore,
while examining the proposed law, we have to see the provisions of
Constitution because, in view of provisions of Article 13, there is supremacy of
the Fundamental Rights over any other law in case of inconsistency. Article 13
reads as under:-

Article 13. Laws inconsistent with or in derogation of the

fundamental rights.- (1) All laws in force in the territory of India
immediately before the commencement of this Constitution, insofar as
they are inconsistent with the provisions of this Part, shall, to the extent
of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the
rights conferred by this Part and any law made in contravention of this
clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires-

(a) ―law‖ includes any Ordinance, order, bye-law, rule, regulation,

notification, custom or usage having in the territory of India the
force of law;
 236

(b) ―laws in force‖ includes laws passed or made by a Legislature or other

competent authority in the territory of India before the
commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be
then in operation either at all or in particular areas.

(4) Nothing in this article shall apply to any amendment of this

Constitution made under Article 368.

Under the Constitution, protection against impairment of the guarantee of

fundamental rights is determined by the nature of the right, the interest of the
aggrieved party, and degree of harm resulting from the State Action.
For the present report, the relevant Fundamental Right is the ―Freedom of
Conscience and the Free Profession, Practice and Propagation of Religion,
which is enumerated in Article 25 which reads as follows:-
―Article 25- Freedom of conscience and free profession, practice and
propagation of religion.-(1) Subject to public order, morality and health
and to the other provisions of this Part, all persons are equally entitled to
freedom of conscience and the right freely to profess, practice and
propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or
prevent the State from making any law-

(a) Regulating or restricting any economic, financial, political or other

secular activity which may be associated with religious practice;

(b) Providing for social welfare and reform or the throwing open of
Hindu religious institutions of a public character to all classes and
sections of Hindus.

Explanation I.- The wearing and carrying of kirpans shall be deemed to

be included in the profession of the Sikh religion.

Explanation II.- In sub-clause (b) of clause (2), the reference to Hindus

shall be construed as including a reference to persons professing the Sikh,
 237

Jaina or Buddhist religion, and the reference to Hindu religious

institutions shall be construed accordingly.‖

Religion, as such has not been defined in the Constitution, but the
protective umbrella of Article 25 is very wide. It covers not only freedom of
conscience and belief, but also to profess, practice and propagate religion.
However, the protection under the Constitution regarding ―Religion‖ is not
absolute and it is subject to Public Order, morality and health.
Article 25 involves a separation between ‗religious‘ activities, on the one
hand, and ‗secular‘ and ‗social‘ activities, on the other. While the former are
protected the latter are not. Sub-clause (a) of Clause (2) of Article 25 reserves
the right of the State to regulate or restrict any economic, financial, political or
other secular activities, which may be associated with religious practices and
there is a further right given to the State by Sub- clause (b) under which the
State can legislate for social welfare and reform even though by so doing it
might interfere with religious practices. Social reform measures are always
permissible under our constitutional scheme and would not be void on the
ground of interfering with freedom of religion. Thus, the Hindu Marriage Act,
for instance, which introduces the principle of monogamy for the Hindus, is
undoubtedly a law providing for social welfare and social reform.
Whether ―Right to Conversion‖ is guaranteed by Article 25?

The most controversial substantial question associated with freedom of

religion is whether ―Right to Freedom of Conversion‖ is concomitant of ―Right
to Freedom of Religion‖ envisaged in Article 25 of the Constitution.
The issue of conversion was also given a thought in the process of
making Constitution of India. We may refer the Debates of Constituent
Assembly as follows:-
―The report of the Sub-committee on fundamental rights headed by J.B.
Kripalani submitted to the Chairman of the Advisory Committee Sardar
 238

Vallabh bhai Patel on April 16, 1947 contained two provisions, one to the
effect that: ―no person under the age of 18 shall be made to join or
profess any religion other than the one in which he was born or be
initiated into any religious order involving a loss of civil status‖, and
another to the effect that: ―Conversion from one religion to another
brought about by coercion or undue influence shall not be recognized by
law and the exercise of such coercion shall be an offence‖ [See B. Shiv
Rao, The Framing of India‘s Constitution, Vol. II, Page 173-174].
Members such as K.M. Munshi, F.R. Antony, D.R. Thakur, Rev. J.J.M.
Nicholas-Roy, D.N. Dattu et al, have expressed different opinion over the
issue of retaining such provision as a part of fundamental right. The issue
of conversion of minor has caused much fury in the course of
deliberations. (See Ibid. Vol. III Pages, 488-503). On persistent demand
by some of the members, the matter was again referred to Advisory
Committee for reconsideration. Upon such a re-consideration, the
Advisory Committee opined that: ―It seems to us on further consideration
that this clause enunciates a rather obvious doctrine which it is
unnecessary to include in the Constitution and we recommend that it is
dropped altogether‖ [See Ibid. Vol. II, Page 305]. The matter again came
up for consideration before the Constituent Assembly on 30th August
1947. Speaking on the subject Sardar Patel said that the Advisory
Committee came to the conclusion that it is not necessary to include this
as a fundamental right. It is illegal under the present law and it can be
illegal at any time. Some of the Members, even thereafter, advocated that
absence of a provision in this regard may encourage people to go in for
large scale conversions to bring about increase in the population of
particular sections and once again efforts may be made to further divide
this country [See Ibid. Vol. V, Page 364]. Finally Sardar Patel in clear
terms expressed that ―there is no difference of opinion on the merits of
the case that forcible conversion should not be or cannot be recognized by
law‖. But the same cannot become a justifiable fundamental right.
Thereafter, the Constituent Assembly adopted the motion that the clause
should not be put in the Fundamental Rights. The idea behind deletion of
such a provision from the Constitution was that the issue of forced
conversion or conversion by undue influence or fraud could very well be
 239

dealt with by an ordinary legislation and there is no need to make

provisions in the Constitution for every conceivable things.‖

Therefore, the Constituent Assembly also took serious note of Conversion

and the final view was that the issue of forced conversion or Conversion by
undue influence or fraud could very well be dealt with by an Ordinary
Legislation and there is no need to make provisions in the Constitution for every
conceivable things.
Admittedly, there is no Central Law prohibiting forced conversion,
although, attempt was made by introduction of (1) Indian Conversion
(Regulation and Registration) Bill, 1954 (2) Backward Communities (Religious
Protection) Bill, 1960 and finally (3) Freedom of Religion Bill, 1979.
However, none of the above bill could be passed by any House of the
Parliament.
The power to legislate has been provided in the Constitution and the
relevant Articles are as under:-
―Article 245- Extent of laws made by Parliament and by the
Legislatures of States.- (1) Subject to the provisions of this Constitution,
Parliament may make laws for the whole or any part of the territory of
India, and the Legislature of a State may make laws for the whole or any
part of the State.

(2) No law made by Parliament shall be deemed to be invalid on the

ground that it would have extra-territorial operation.

Article 246. Subject matter of laws made by Parliament and by the

Legislature of States.- (1) Notwithstanding any thing in clauses (2) and
(3), Parliament has exclusive power to make laws with respect to any of
the matters enumerated in List I in the Seventh Schedule ( in this
Constitution referred to as the ―Union List‖).

(3) Notwithstanding anything in clause (3), Parliament, and, subject to

clause (1), the Legislature of any State also, have power to make laws
 240

with respect to any of the matters enumerated in List III in the Seventh
Schedule (in this Constitution referred to as the ―Concurrent List‖).

(3) Subject to clauses (1) and (2), the Legislature of any State has
exclusive power to make laws for such State or any part thereof with
respect to any of the matters enumerated in List II in the Seventh
Schedule (in this Constitution referred to as the ―State List‖).

(4) Parliament has power to make laws with respect to any matter for any
part of the territory of India not included in a State notwithstanding that
such matter is a matter enumerated in the State List.

Article 254. Inconsistency between laws made by Parliament and

laws made by the Legislatures of States.- (1) If any provision of a law
made by the Legislature of a State is repugnant to any provision of a law
made by Parliament which Parliament is competent to enact, or to any
provision of an existing law with respect to one of the maters enumerated
in the concurrent List, then, subject to the provisions of clause (2), the
law made by Parliament, whether passed before or after the law made by
the Legislature of such State, or, as the case may be, the existing law,
shall prevail and the law made by the Legislature of the State shall, to the
extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of
the matters enumerated in the Concurrent List contains any provision
repugnant to the provisions of an earlier law made by Parliament or an
existing law with respect to that matter, then, the law so made by the
Legislature of such State shall, if it has been reserved for the
consideration of the President and has received his assent, prevail in that
State:

Provided that nothing in this clause shall prevent Parliament from

enacting at any time any law with respect to the same matter including a
law adding to, amending, varying or repealing the law so made by the
Legislature of the State.‖
 241

State of Orissa was the first State of India to enact ―Orissa Freedom of
Religion Act, 1967. Thereafter, State of Madhya Pradesh has also enacted ―The
Madhya Pradesh Freedom of Religion Act, 1968.
Both these Acts were challenged before the respective High Court mainly
on the ground of legislative competence as well as infringement of Fundamental
Right envisaged under Article 25 of the Constitution.
The Orissa Act was challenged by way of Mrs. Yulitha Hyde and Ors.
vs. State of Orissa and others AIR 1973 Ori 116 in which the main contentions
were as follows:-

(a) The State Legislature has no legislative competence to legislate on

matters covered by the Act, and
(b) The Act infringes the Fundamental Right guaranteed under Article
25 of the Constitution.

Hon‘ble Orissa High Court observed and held as under:-

―We shall now proceed to examine the legislative competence of the

Orissa State Legislature to enact the impugned Statute. Learned
Government Advocate has contended that the impugned Act is clearly
referable to entry 1 of List II or Entry 1 of List III and as such the
legislation is competent. Counsel for the petitioners. however, contend
that there is no specific entry in Schedule VII of the Constitution dealing
with the topic of 'religion' and. as such entry 97 of List I of Schedule VII
alone must apply.

The Act essentially deals with the subject-matter of "religion" and its
provisions do not indeed relate to "public order". Learned Government
advocate has experienced some amount of embarrassment during the
hearing of these applications in the absence of a firm disclosure upon
affidavit as to which entry the State looks upto to justify the competence
of the Act. The adoption of alternate entries in his argument is indicative
of the uncertain situation. We do not find any basis to hold that the Act
can be held to be covered by the topic of 'Public Order' in Entry I of List
II.
 242

An analysis of the Act, however, has left no doubt in our mind that the
pith and substance of the statute is not creation of offences and therefore,
it does not relate to 'criminal law'. The real topic is religion and indeed
not criminal law. Again religion is not a matter specified in List II but
must be taken to be covered only in List I. Therefore, even in terms of the
entry, the State Legislature shall not have legislative jurisdiction.

In our view, therefore, the matter relating to which the Act has been
enacted is not enumerated either in List II or List III and comes under
entry 97 of List I. The State Legislature has, therefore, no power to make
the law in question.

12. Our conclusions, therefore, are :

(1) Article 25(1) guarantees propagation of religion and conversion is a

part of the Christian religion.

(2) Prohibition of conversion by 'force' or by 'fraud' as defined by the Act

would be covered by the limitation subject to which the right is
guaranteed under Article 25(1).

(3) The definition of the term 'inducement' is vague and many

proselytizing activities may be covered by the definition and the
restriction in Article 25(1) cannot be said to cover the wide definition.

(4) The State Legislature has no power to enact the impugned legislation
which in pith and substance is a law relating to religion. Entry No. 1 of
either Last II or List III does not authorise the impugned legislation.

(5) Entry 97 of List I applies.

13. On the conclusions, each of these three applications must succeed.

We declare that the Act is ultra vires the Constitution and direct the issue
of a writ of mandamus to the opposite-party-State Government not to
give effect to the Act. The four criminal cases pending before the
Magistrate at Gunupur are hereby quashed.‖
 243

Before the Madhya Pradesh High Court, the matter was agitated in
Rev. Stainislaus vs. State of Madhya Pradesh and others AIR 1975 MP
163, the extract of which is as follows:-
―The petitioner raised a preliminary objection as to the tenability of the
prosecution contending that the Act was ultra vires the powers of the
State legislature, as it did not fall within the scope of Entry No. I to List II
and Entry No. 1 to List III of the Seventh Schedule. But, in fact it falls
within Entry No. 97 of List I of the Seventh Schedule and as such, the
Parliament alone had the power to enact legislation on the subject and the
State legislature in the name of public order could not have enacted such
a legislation. The other contention raised was that the provisions of
Sections 3, 4 and 5 (2) of the Act contravene Article 25 of the
Constitution of India guaranteeing freedom of religion, the Act is void as
being in violation of the petitioner's fundamental rights. On these two
grounds the prosecution was said to be untenable.

In the present cases the petitioner has raised three constitutional questions
challenging the vires of the Madhya Pradesh Dharma Swatantrya
Adhiniyam, 1966. We propose to discuss them in a serial order as
follows:

(i) that Sections 3, 4, 5 (2) and 6 of the M. P. Dharma Swatantrya

Adhiniyam, 1968, are violative of the petitioner's fundamental rights
guaranteed by Article 25(1) of the Constitution of India;
(ii) that in exercise of powers conferred by Entry No. 1 of List II, read
with Entry No. 1 of List III of the Seventh Schedule, the Madhya
Pradesh legislature in the name of public order could not have enacted
the said legislation. But the matter would fall within the scope of
Entry No. 97 of List I of the Seventh Schedule, which confers
residuary powers on the Parliament to legislate in respect of any
matters not covered by List I, List II or List III. Therefore, it is
contended that the Parliament alone had the power to legislate on this
subject and the legislation enacted by the State legislature is ultra vires
the powers of the State legislature;
 244

(iii) that Section 5 (1) and Section 5 (2) of the M. P. Dharma Swatantrya
Adhiniyam, 1968, amount to testimonial compulsion and, therefore,
the said provisions are violative of Article 20(3) of the Constitution of
India.

Coming to the second question regarding legislative competence of the

State legislature, the learned counsel urged that the subject-matter will be
covered by Entry No. 97 of List I of the Seventh Schedule, which is as
follows:

"Any other matter not enumerated in List II or List III including any tax
not mentioned in either of those Lists."

The suggestion, therefore, is that the matter will be covered by the Entry
relating to the residuary power of the Parliament. It is strenuously urged
that the subject-matter will not be covered by Entry 1 of List II, i.e. the
State List, which is as follows:

"Public order (but not including the use of naval, military or air forces or
any other forces of the Union in aid of the Civil power)."

With due respect to the learned Judges of the Orissa High Court, we are
unable to concur with the reasoning of that Division Bench for the
reasons already mentioned by us above, particularly with reference to the
several cases and the pronouncement of their Lordships of the Supreme
Court made in those cases. We would, therefore, differ from the Division
Bench of the Orissa High Court and would hold that the subject-matter of
the M. P. Dharma Swatantrya Adhiniyam, 1968, is covered by Entry No.
1 of List II of the Seventh Schedule and as such, the Madhya Pradesh
Legislature was competent to enact that piece of legislation. Further, we
would hold that Sections 3, 4 and 5 of the M. P. Dharma Swatantrya
Adhiniyam, 1968, do not violate Article 25(1) of the Constitution of
India. But, on the other hand, they establish the equality of religious
freedom for all citizens by prohibiting conversion by objectionable
activities such as conversion by force, fraud and by allurement. In our
opinion, the provision relating to conversion by allurement cannot be
 245

challenged either on the ground of legislative competence or on the

ground of violation of Article 23(1) of the Constitution.‖

Co-incidentally, both these judgments of High Courts of Orissa as well as

Madhya Pradesh were challenged before Hon‘ble Supreme Court in Rev.
Stainislaus vs. State of MP 1977 AIR 908 SC in which Hon‘ble Supreme
Court considered the validity of judgments of Orissa High Court as well as
judgment of Madhya Pradesh High Court and also considered the Legislative
Competence of State Legislatures and the alleged infringement of Article 25 of
the Constitution.
Hon‘ble Apex Court observed and held as under:-
―The common questions which, have been raised for our consideration
are (1) whether the two Acts were violative of the fundamental right
guaranteed under Article 25(1) of the Constitution, and (2) whether the
State Legislatures were competent to enact them ?

We have no doubt that it is in this sense that the word ‘propagate‘ has
been used in Article 25 (1), for what the Article grants is not the right to
convert another person to one‘s own religion, but to transmit or spread
one‘s religion by an exposition of its tenets. It has to be remembered that
Article 25 (1) guarantees "freedom of conscience" to every citizen, and
not merely to the followers of one particular religion, and that, in turn,
postulates that there is no fundamental right to convert another person to
one‘s own religion because if a person purposely undertakes the
conversion of another person to his religion, as distinguished from his
effort to transmit or spread the tenets of his religion, that would impinge
on the "freedom of conscience" guaranteed to all the citizens of the
country alike.

Thus if an attempt is made to raise communal passions, e.g. on the ground

that someone has been "forcibly" converted to another religion, it would,
in all probability, give rise to an apprehension of a breach of the public
order, affecting the community at large. The impugned Acts therefore fall
within: the purview of Entry I of List II of the Seventh Schedule as they
are meant to avoid disturbances to the public order by prohibiting
conversion from one religion to another in a manner reprehensible to the
 246

conscience of the community. The two Acts do not provide for the
regulation of religion and! we do not find any justification for the
argument that they fall under Entry 97 of List I of the Seventh Schedule.

In the result Civil Appeals No. 1489 and 1511 of 1974 and Criminal
Appeal No. 255 of 1974 fall and are dismissed while Civil Appeals No.
344-346 of 1976 are allowed and the impugned judgment of the Orissa
High Court dated 24 October, 1972 is set aside. The parties shall pay and
bear their own costs, in Madhya Pradesh appeals. The State shall pay the
respondent costs in the Orissa appeal according to previous direction.‖

The verdict of Hon‘ble Supreme Court is the last verdict of the land and
in view of provisions of Article 141 of the Constitution, the law declared by the
Supreme Court is the laws of land.
In these circumstances, it is clear that the Entry I of List II of the Seventh
Schedule of Constitution of India empowers the State Legislature to legislate on
the matter in hand and also it does not violate the Fundamental Right as
guaranteed under Article 25 of the Constitution.

********************************************
 CHAPTER-XIII
EXISTING PROVISIONS OF LAW
RELATING TO RELIGION AND NEED
FOR NEW LEGISLATION

INDIA

Upon people in India

 247

CHAPTER- XIII
EXISTING PROVISIONS OF LAW
RELATING TO RELIGION AND NEED FOR
NEW LEGISLATION

OFFENCES RELATING TO RELIGION

IN INDIAN PENAL CODE
Section 295. Injuring or defiling place of worship with intent to
insult the religion of any class.- Whoever destroys, damages or
defiles any place of worship, or any object held sacred by any class of
persons with the intention of thereby insulting the religion of any
class of persons or with the knowledge that any class of persons is
likely to consider such destruction, damage or defilement as an insult
to their religion, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or
with both.
Section 295-A. Deliberate and malicious acts intended to outrage
religious feelings of any class by insulting its religion or religious
beliefs.- Whoever, with deliberate and malicious intention of
outraging the religious feelings of any class of citizens of India, by
words, either spoken or written, or by signs or by visible
representations or otherwise, insults or attempts to insult the religious
or the religious beliefs of that class, shall be punished with
imprisonment of either description for a term which may extend to
three years, or with fine, or with both.
 248
Section 296. Disturbing religious assembly.- Whoever voluntarily
causes disturbance to any assembly lawfully engaged in the
performance of religious worship, or religious ceremonies, shall be
punished with imprisonment of either description for a term which
may extend to one year, or with fine, or with both.
Section 297. Trespassing on burial places etc.- Whoever, with the
intention of wounding the feelings of any person, or of insulting the
religion of any person, or with the knowledge that the feelings of any
person are likely to be wounded, or that the religion of any person is
likely to be insulted thereby,
commits any trespass in any place of worship or on any place of
sepulture, or any place set apart for the performance of funeral rites or
as a depository for the remains of the dead, or offers any indignity to
any human corpse, or causes disturbances to any persons assembled
for the performance of funeral ceremonies,
shall be punished with imprisonment of either description for a
term which may extend to one year, or with fine, or with both.
Section 298. Uttering words, etc., with deliberate intent to wound
religious feelings.- Whoever, with the deliberate intention of
wounding the religious feelings of any person, utters any word or
makes any sound in the hearing of that person or makes any gesture in
the sight of that person or places any object in the sight of that person,
shall be punished with imprisonment of either description for a term
which may extend to one year, or with fine, or with both.
Section 503. Criminal intimidation.- Whoever threatens another
with any injury to his person, reputation or property, or to the person
or reputation of any one in whom that person is interested, with intent
to cause alarm to that person, or to cause
 249

that person to do any act which he is not legally bound to do, or to

omit to do any act which that person is legally entitled to do, as the
means of avoiding the execution of such threats, commits criminal
intimidation.
Explanation.- A threat to injure the reputation of any deceased
person in whom the person threatened is interested; is within this
section.
508. Act caused by inducing person to believe that he will be
rendered an object of Divine displeasure.- Whoever voluntarily
causes or attempts to cause any person to do anything which that
person is not legally bound to do, or to omit to do anything which he
is legally entitled to do, by inducing or attempting to induce that
person to believe that he or any person in whom he is interested will
become or will be rendered by some act of the offender an object of
Divine displeasure if he does not do the thing which it is the object of
the offender to cause him to do, or if he does the thing which it is the
object of the offender to cause him to omit, shall be punished with
imprisonment of either description for a term which may extend to
one year, or with fine, or with both.
The aforesaid provisions of Indian Penal Code, although deal
with offences relating to religion like, injuring or defiling place of
worship with intent to insult the religion of any class, deliberate and
malicious acts intended to outrage religious feelings of any class by
insulting its religion or religious beliefs, disturbing religious
assembly, trespassing on burial places etc., uttering words etc., with
deliberate intent to wound religious feelings, criminal intimidation,
act caused by inducing person to believe that he will be rendered an
object of Divine displeasure, but still do not deal with the specific
Acts of conversion from one
 250
religion to another by use or practice of misrepresentation, force,
undue influence, coercion, allurement or by any fraudulent means or
by marriage. Certainly, the allurement means and includes offer of
any temptation in the form of any gift, gratification or material benefit
either in cash, kind, employment, free education in reputed school run
by any religious body, easy money, better lifestyle, divine pleasure or
otherwise. The provisions of Indian Penal Code practically deal with
respect of all religions and prohibits to injure or defile any place of
worship with intent to insult the religion of any class. Certainly, the
religious feelings of any class must not be insulted by any person and
it has transpired that the recent murder of Kamlesh Tiwari at
Lucknow was the result of deliberate outraging of religious feelings
of religion of Islam. As far as the provision in Section 508 of I.P.C.
relating to divine displeasure is concerned, it is only restricted to do or
to omit to do anything which he is legally entitled to do.
It appears that in most of the cases of religious conversion, the
allurement is the key ingredient. The Missionaries in India are
providing gift, gratification, material benefit as well as allurement of
free education in reputed school and better life style. Their main
target is the members of Scheduled Castes and Scheduled Tribes, who
are basically under privileged persons. In civilised society no
religious body should be allowed to convert any person or a group of
persons on the basis of allurement.
Inter-religion marriages are also very common now-a-days but
that also involves the conversion. If the conversion has been made
voluntarily, there is no problem. But if the conversion is made by
undue influence, coercion or force or by some fraudulent means or for
some hidden agenda, certainly that should not be permissible. Under
the Constitution of India, every
 251

citizen has right to profess any religious faith. But it has been
experienced that in most of the cases, the convert persons do not
know about ABCD of that particular religion, to which he has been
converted. The relevant instances can be seen in the judgments of
Hon‘ble High Court of Judicature at Allahabad and more particularly
by the judgment of Hon‟ble Mr. Justice Surya Prakash Kesarwani,
in which His Lordship had recorded the statements of so-called
converts, who have specifically stated in their statements on oath that
they do not know anything about the religion to which he or she has
been converted and the sole purpose of conversion was to contract of
marriage with a person of another religion. Certainly, our society and
more particularly the parents and family members of such person do
not recognize such conversion and the so-called marriage. The result
is that the girl, who has converted her religion for the purpose of
marriage, is neither accepted by her parents nor by the society and it
also creates law and order problem. It cannot be said to be a better
position for our society because the converted couples have to reside
in the society and if the society do not recognize their marriage, it
further creates various problems to them. Therefore, the Commission
feels that if anybody wants to convert himself from one religion to
another, he should follow certain procedure. Therefore, taking into
consideration all these aspects, Sections 8 and 9 of the proposed Draft
deal with declaration before conversion as well as declaration of
conversion of religion so that the said conversion, if it has been made
by free will and voluntarily, may be recognized under the law. The
Commission has also considered various judgments of Hon‘ble
Supreme Court as well as High Courts, who have delivered judgments
on conversion.
 252

Hon‘ble the Bombay High Court in Dr. Abdur Rahim Undre

Vs. Smt. Padma Abdur Rahim Undre AIR 1982 Bombay 341, has
specifically dealt with this aspect and has emphasized that there
should be declaration in such a way that it would be known to those
who it may interest. Hon‘ble Bombay High Court has further said
that if a public declaration is made by a person that he has ceased to
belong to his old religion and has accepted another religion he will be
taken as professing the other religion. Various other States of India,
like Madhya Pradesh, Jharkhand, Orissa, Chhattisgarh, Himachal
Pradesh, Uttarakhand, Arunachal Pradesh etc. have enacted laws on
this point. Issues of conversion have also been raised several times
in U.P. Legislative Assembly, but till now no effort has been made to
make a specific law on the point of freedom of religion. Therefore, in
the opinion of Commission, the existing provisions of Indian Penal
Code, which have been enumerated above, do not specifically, deal
with the problem of religious conversion and they are also not
sufficient to deal with the situation.
Therefore, in the opinion of the Commission, there is urgent
need to legislate specific law on this point.

******************************************
 253

CHAPTER -XIV

RECOMMENDATIONS OF THE
COMMISSION

The study reveals that Ten out of Twenty Eight States of India
have already enacted law on the freedom of religion. The debates of
U.P. Legislative Assembly also reveal that since independence,
problem of conversion is subsisting in various parts of the State. As
has already been mentioned in Chapter XIII that existing provisions
of Indian Penal Code are not sufficient to curb and control the
conversion caused by allurement, fraud, misrepresentation,
inducement etc., therefore, the Commission recommends as follow:-

(i) The State Legislature should consider to enact a

separate law to regulate the conversion as well as to
control conversion at behest of fraud, inducement,
allurement, coercion as well as conversion done for the
sole purpose of marriage.
(ii) The words, allurement, coercion, conversion, force,
fraudulent means, minor, religion, religious priest and
undue influence should be defined.
 254

(iii) There should be total restriction on conversion from one

religion to another by use or practice of allurement,
misrepresentation, force, undue influence, coercion, or
by any fraudulent means or by marriage.
(iv) The person who abets, convinces or conspires the
incidents of conversion by use or practice of
misrepresentation, force, undue influence, coercion,
allurement or by any fraudulent means or by marriage
should also be covered by the prohibition.
(v) It is experienced that sometimes a person is converted
due to force or allurement but subsequently when he
realizes that he had taken wrong stand and intends to
come back to his previous religion, such person must
not be deemed to be guilty for conversion.
(vi) It should be provided that any aggrieved person, his
parents, persons related to aggrieved person by blood,
marriage or adoption, shall be competent to lodge a
complaint before the competent authority.
(vii) Any person who contravenes the provisions of
proposed Act and converts or attempts to convert any
person from one religion to another by use of
misrepresentation, force, allurement etc. should be
punished and in the opinion of the Commission,
minimum punishment should be one
 255
year which may extend to five years. Such person
should also be imposed fine. In the opinion of the
Commission, the amount of fine should be left to the
jurisdiction and discretion of the competent court.
(viii) The Commission is of the view that the majority of
conversions are regarding the members of Scheduled
Castes and Scheduled Tribes on the ground of
allurement, better education, better lifestyle and other
aspects. Therefore, the Commission is of the view that
if a minor, a women or a person belonging to Scheduled
Castes and Scheduled Tribes is converted in
contravention of the provisions of the proposed Act,
there should be enhanced sentence of not less than two
years which may extend to seven years and fine.

(ix) Taking into consideration the recent news in print media,

electronic media as well as some judgments of Allahabad
High Court, it appears that conversions are being done for
sole purpose of marriage by the man of one religion with
the women of another religion either by converting
himself before or after marriage or by converting the
women before or after marriage. Therefore to curb such
practice it is
 256

necessary to make a provision to declare null and void

such marriages where conversion was done for sole
purpose of marriage and like other matrimonial disputes,
jurisdiction should be given to Family Court or where
Family Court is not established to the Court having
jurisdiction to try such cases. Liberty should be given to
either parties to present the petition in the competent
court.
(x) To ascertain the jurisdiction for petition of declaring any
such marriage, which was the result of conversion, the
jurisdiction of the Court has to be prescribed.
(xi) In this changing world, it is not possible nor advisable to
restrict the voluntary/free will conversion, but at the same
time, it is required that anyone, who desires to convert his
religion should follow a prescribed procedure so as to
inform such conversion to the world at large as well as the
society in which he or she is residing.
(xii) Certainly, for every conversion from one religion to
another, there is some process like purity sanskar, reading
of Qualma, attending Church, which is adopted for
converting any person from one religion to another
religion, as done by some religious priest. To check the
misuse, it is proposed to identify such religious priest and
provision should also be made for giving one month‘s
advance notice
 257
in the prescribed form to the District Magistrate and it
should be the duty of the District Magistrate to get an
enquiry conducted and if anyone attempts to convert
another person without procedure prescribed, such
religious priest should be held guilty and be punished
accordingly and in such cases, the Commission is of the
view that imprisonment of three months which may extend
to one year may be provided. But as far as religious priest
is concerned, if such religious priest does not fulfill his
obligation to give notice to the District Magistrate, such
violation should be taken as more serious and, therefore,
punishment of not less than six months which may extend
to two years, should be provided.
(xiii) In the existing Freedom of Religion Acts of Himachal
Pradesh and Uttarakhand, there is provision of prior
information by person desirous to convert his religion as
well as religious priest, but the Law Commission of India
has also considered this aspect and has submitted its
Report No. 235 dated 27th December 2010, in which the
Law Commission, after considering various judgments of
Hon‘ble Supreme Court and High Courts as well as
considering the response submitted by Kerala Law
Academy Law College, Thiruvananthapuram, Revd.
 258

Archbishop of Bhopal, the Catholic Church Body of

Madhya Pradesh and certain other Christian
organizations/individuals of Madhya Pradesh, has
recommended to send a declaration of his conversion to
the Officer-in-Charge of Registration of Marriage. The
Law Commission has also recommended the further action
to be taken by the registering official and a provision has
also been recommended to appear personally before the
Registering Officer and confirm the contents of
declaration so that it may be concluded that conversion is
genuine. Accordingly, in the opinion of the Commission,
a subsequent declaration of conversion of religion should
be sent to District Magistrate of the district, in which the
converted person resides ordinarily. In view of the
recommendations of Law Commission of India, a proper
procedure should also be provided to verify such
conversion.
(xiv) It should also be provided in the proposed Act that if an
Institution or Organization violates the provisions of
proposed Act, the registration of such organization or
institution should be cancelled by the competent authority
and further it should also be provided that the State
Government should also not provide any financial aid or
 259

grant to such institution or organization.

(xv) The parties to the offence under the proposed Act should
also be defined and the burden of proof should be on the
person, who caused conversion and where such conversion
has been facilitated by any person, on such other person.

In view of aforesaid recommendations, the Commission has

prepared a Draft Bill, which is contained in Chapter XV.

*********************************
CHAPTER – XV
DRAFT BILL
 260

CHAPTER – XV
DRAFT BILL
The Uttar Pradesh Freedom of Religion Act, 2019
AN
ACT
to provide freedom of religion by prohibition of conversion from one
religion to another by misrepresentation, force, undue influence, coercion,
allurement or by any fraudulent means or by marriage and for the matters
connected therewith or incidental thereto.

Be it enacted in the Seventieth Year of the Republic of India as follows:

1. Short title, extent and commencement. - (1) This Act may be called the
Uttar Pradesh Freedom of Religion Act, 2019.

(2) It shall come into force on such date as the State Government may, by
notification in the Official Gazette, appoint.

2. Definitions. - In this Act, unless the context otherwise requires:

(a) "Allurement" means and includes offer of any temptation in the form of:
(i) any gift, gratification, easy money or material benefit either in cash
or kind;
(ii) employment, free education in reputed school run by any religious
body; or
(iii) better lifestyle, divine displeasure or otherwise;
(b) "Coercion" means compelling an individual to act against his will by the
use of psychological pressure or physical force causing bodily injury or
threat thereof;
(c) "Conversion" means renouncing one‘s own religion and adopting another
religion
 261
Explanation-own religion means the religion of one‘s forefather.
(d) "Force" includes a show of force or a threat of injury of any kind to the
person converted or sought to be converted or to any other person or
property including a threat of divine displeasure or social
excommunication;
(e) "Fraudulent means" includes misrepresentation of any kind or any other
fraudulent contrivance;
(f) "Minor" means a person under eighteen years of age;
(g) "Religion" means any organized system of faith, belief, worship or
lifestyle, as prevailing in India or any part of it, and defined under any law
or custom for the time being in force;
(h) "Religious priest" means priest of any religion who performs purification
Sanskar or conversion ceremony of any religion and by whatever name he
is called such as pujari, pandit, mulla, maulvi, father etc.;
(i) "Undue influence" means the unconscientious use by one person of his
power or influence over another in order to persuade the other to act in
accordance with the will of the person exercising such influence.
3. Prohibition of conversion from one religion to another religion by
misrepresentation, force, fraud, undue influence, coercion, allurement or
marriage. - No person shall convert or attempt to convert, either directly or
otherwise, any other person from one religion to another by use or practice of
misrepresentation, force, undue influence, coercion, allurement or by any
fraudulent means or by marriage nor shall any person abet, convince or conspire
such conversion:
Provided that, if any person reconverts to his immediate previous
religion, shall not be deemed to be a conversion under this Act.
4. Person competent to lodge complaint:-Any aggrieved person, his parents,
brother, sister, or any other person who is related to him by blood, marriage or
adoption may lodge a complaint of such conversion which contravenes the
provisions of section 3.
5. Punishment for contravention of provisions of Section 3. - Whoever
contravenes the provisions of Section 3 shall, without prejudice to any civil
liability, be punished with imprisonment for a term, which shall not be less than
one year but which may extend to five years and shall also be liable to fine:

Provided that whoever contravenes the provisions of Section 3 in respect

of a minor, a woman or a person belonging to the Scheduled Caste or Scheduled
Tribe shall be punished with imprisonment for a term which shall not be less
 262

than two years but which may extend to seven years and shall also be liable to
fine.

6. Conversion done for sole purpose of marriage to be declared null and

void. - Any conversion which was done for the sole purpose of marriage 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 null and 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.
7. Court to which petition shall be presented. - Every petition under Section 6
shall be presented to the Family Court or where Family Court is not established,
the Court having jurisdiction to try such cases within the local limits-

(i) the marriage was solemnized; or

(ii) the respondent, at the time of the presentation of the petition, resides; or
(iii) the parties to the marriage last resided together; or
(iv) in case the wife is the petitioner, where she is residing on the date of
presentation of the petition.
8. Declaration before conversion of religion and pre-report about
purification Sanskar. - (1) One who desires to convert his religion, shall give a
declaration in the form prescribed in Schedule I at least one month in advance,
to the District Magistrate or the Additional District Magistrate specially
authorized by District Magistrate that he wishes to convert his religion on his
own and at his free consent and without any force, coercion, undue influence or
allurement.
(2) The religious priest, who performs purification Sanskar or conversion
ceremony for converting any person of one religion to another religion, shall
give one month's advance notice in the form prescribed in Schedule II of such
conversion, to the District Magistrate or any other officer not below the rank of
Additional District Magistrate appointed for that purpose by the District
Magistrate of the district where such ceremony is proposed to be performed.

(3) The District Magistrate, after receiving the information under sub-sections
(1) and (2), shall get an enquiry conducted through police, with regard to real
intention, purpose and cause of that proposed religion conversion.

(4) Contravention of the sub-section (1) and/or sub-section (2) shall have the
effect of rendering the said conversion, illegal and void.
 263

(5) Whoever contravenes the provisions of sub-section (1) shall be punished

with imprisonment for a term which shall not be less than three months, but
may extend to one year and shall also be liable to fine.
(6) Whoever contravenes the provisions of sub-section (2) shall be punished
with imprisonment for a term which shall not be less than six months, but may
extend to two year and shall also be liable to fine.
9. Declaration of conversion of religion:- (1) The converted person shall
send a declaration in the form prescribed in Schedule III within one month of
the date of conversion, to the District Magistrate of the District in which
converted person resides ordinarily.
(2) The District Magistrate shall exhibit a copy of the declaration on the notice
board of the office till the date of confirmation.
(3) The said declaration shall contain the requisite details, i.e., the particulars of
the convert, such as, date of birth, permanent address, and the present place of
residence, father‘s/husband‘s name., the religion to which the convert originally
belonged and the religion to which he or she converted, the date and place of
conversion and nature of process gone through for conversion.
(4) The converted individual shall appear before the District Magistrate within
21 days from the date of sending/filing the declaration, to establish her/his
identity and confirm the contents of the declaration.
(5) The District Magistrate shall record the factum of declaration and
confirmation in a register maintained for this purpose. If any objections are
notified, he may simply record them, i.e., the name and particulars of objectors
and nature of objection.
(6) Certified copies of declaration, confirmation and the extracts from the
register shall be furnished to the parties, who gave the declaration or to his
authorized legal representative on his request.
(7) The contravention of sub-section 1 to 4 shall have the effect of rendering
the said conversion illegal and void.
10. Punishment for violation of provisions of Act by an institution or
organisation. – (1) If any institution or organization violates the provisions of
this Act, the person or persons in charge of the affairs of the organisation or
institution, as the case may be, shall be subject to punishment as provided under
Section 5 and the registration of the organization or institution under any law
for the time being in force may be cancelled by competent authority upon
reference made by District Magistrate in this regard.

(2) State Government shall not provide any financial aid or grant to such
institution or organization violating the provisions of this Act.
 264

11. Parties to offence. - When an offence is committed under this Act, each of
the following shall be deemed to have taken part in committing the offence and
to be guilty of the offence, and shall be charged as if he has actually committed
it, that is to say,-

(i) every person who actually does the act which constitutes the offence;
(ii) every person who does or omits to do any act for the purpose of enabling
or aiding another person to commit the offence;
(iii)every person who aids or abets another person in committing the
offence;
(iv)any person who counsels, convinces or procures any other person to
commit the offence.
12. Burden of proof. - The burden of proof as to whether a religious conversion
was not effected through misrepresentation, force, undue influence, coercion,
allurement or by any fraudulent means or by marriage lies on the person who
has caused the conversion and, where such conversion has been facilitated by
any person, on such other person.

13. Power to remove difficulties. - (1) If any difficulty arises in giving effect to
the provisions of this Act, the State Government may, by order published in
the Official Gazette, make such provisions, not inconsistent with the provisions
of this Act, as appear to it, to be necessary or expedient for removing the
difficulty:

Provided that no such order shall be made after the expiry of a period of
two years from the date of commencement of this Act.

(2) Every order made under this section shall, as soon as may be after it is made,
be laid before State Legislature.
14. Power to make rules. - (1) The State Government may, by notification in
the Official Gazette, make Rules for carrying out the provisions of this Act.
(2) All Rules made under this section shall be laid before the State Legislature,
as soon as may be, after they are made, and shall be subject to such
modifications, as the State Legislature may make, during the session.
(3) Any modification so made under sub-section (2) shall be published in
the Official Gazette, and shall thereupon take effect.

*****
 265

SCHEDULE -I
Form of declaration ( See Sub-section (1) of Section 8)
Intimation regarding intended conversion from one religion to another
To,
The District Magistrate
District ………………………….
Uttar Pradesh

Sir,
I ………………………………… s/o ………………………….r/o
…………………intend to perform necessary ceremony for conversion from
.........................................religion to
………………………………………….religion, do hereby, give intimation of
intended conversion as required by sub-section (1) of section 8:
1. Name of the person to be converted …………….
2. Name of the :
(a) father of the person to be converted………….
(b) mother of the person to be converted………………………….
3. Address of the person to be converted……………………
House No. …………….Ward No. ………………………
Mohalla …………………Village …………………………….Tah.
……………………District………………………
4. Age ……………………..(DOB)
5. Sex……………………..
6. Occupation and monthly income ………………..
7. Whether married or unmarried………………
8. Name of persons, if any, dependent upon the person to be converted
………………..
9. If any minor , name and full address of the guardian, if any……………..
10. Whether belong to Schedule Caste or Schedule Tribe and if so, particulars of
such caste……………………
11. Name of the place where the conversion ceremony is intended to take place
with full details …………House No……………. Ward NO. ……….Mohalla
……………..Village …………………………….District
…………………………..
12. Date for Conversion……………..
13. Religious priest:
(i) Name, qualification and experience………………………..
(ii) Address …………………………………………………….

VERIFICATION
 266

I, ………………………do hereby declare that what is stated above is true to the

best of my knowledge and belief , nothing has been concealed.
Signature
Date…………………..
Place………………..

SCHEDULE-II

Form of notice (See Sub-section (2) of Section 8)

Notice by the religious priest regarding intended conversion from one religion to
another.
To
The District Magistrate
District……………..
Uttar Pradesh

Sir,
I……………………….s/o …………..r/o……………….do hereby, give notice
as required by Sub-section (2) of Section 8 for intended conversion
from………………………religion to …………….religion and particulars of
aforesaid intended conversion are as below:
1. Name of the person to be converted…………………
2. Name of the:
(a) father of the person to be converted…………………
(b) mother of the person to be converted……………….
3. Address of the person to be converted
House No………… Ward No……………………
Mohall…………….Village………..Tah………….District……
4. Age…………….(DOB)
5. Sex………………
6. Occupation and monthly income…………….
7. Whether married or unmarried…………….
8. Name of persons, if any, dependent upon the person to be
converted………………………….
9. If a minor, name and full address of the guardian, if any……
10. Whether belongs to Scheduled Caste or Scheduled Tribe and if so,
particulars of such Caste…………….
11. Name of the place where the conversion ceremony is intended to take place
with full details ………..House No……..Ward
No………….Mohalla………….Village…………..District……………
12. Date for conversion………………………………
 267

13. Religious priest:

(i) Name, qualification and experience………………………..
(ii) Address …………………………………………………….

VERIFICATION.

I, ………………………do hereby declare that what is stated above is true to the

best of my knowledge and belief, nothing has been concealed.

Signature
Date………………………
Place……………………..

SCHEDULE-III

Form of Declaration (See Section 9)

Intimation regarding conversion from one religion to another,
To,
The District Magistrate
District………………..
Uttar Pradesh……………..

Sir,
I…………………………………s/o ………………..r/o
……………………..having performed the necessary ceremony for conversion
from…………………………religion to………………..religion , do hereby,
give intimation of the conversion as required by Section 9 as under:
1. Full Name of the person converted:
(1) before conversion-----------------------------------
(2) after conversion ( if the name is changed)………………..
2. Name of the:
(a) father of the person converted……………………
(b) mother of the person converted………………………………..
3. Address of the person converted
House No………….Ward No….............................
Mohalla……………………….Village…………………..Tah…………………
…..District……………..
 268

4. Age………………………..(DOB)
5. Sex…………………
6. Occupation and monthly income……………………..
7. Whether married or unmarried………………………
8. Name of persons, if any, dependent upon the person
converted……………………….
9. If a minor, name and full address of the guardian, if
any……………………………
10. Whether belongs to Scheduled Caste or Scheduled Tribe and if so, particulars
of such Caste……………………………….
11. Name of the place where the conversion ceremony has taken place with full
details …………….House
No………………….Ward…………………….Mohalla…………………………
….Village…………….....District………………...
12. Date of conversion…………………………………
13. Religious priest:
(i) Name, qualification and experience………………………..
(ii) Address …………………………………………………….
14. Names, addresses and other particulars (relationship with the person
converted, if any) of at least two persons other than religious priest who had
taken part in the conversion ceremony:
(1)…………………………..
(2)……………………….

VERIFICATION.
I,……………………. do hereby declare that what is stated above is true to the
best of my knowledge and belief, nothing has been concealed.
Signature……………………….
Witness: (1)……………………
Witness: (2)……………….

Date………………
Place………………