This article is written by S A Rishikesh, from Institute of Legal Studies, Shri Ramswaroop Memorial University, Lucknow. This article highlights the plight of couples who exercise their right to choose their spouse while discussing the case of Chandrashekhar D Chavan v State of Maharashtra.
Table of Contents
Marriage is an essential institution of society that binds two people together as spouses, both legally and socially. Legally speaking, marriage is a union of two persons; it is a consensual, sexual, and contractual relationship. This relationship is duly recognized by law, legitimated by law, and can only be dissolved by law. The basic elements of a marriage are:
- The parties must be legally competent to marry each other.
- Mutual consent of the people that are going to get married.
- A marriage contract as required by the law of the land.
Family is the basic unit of society and it starts with marriage. It is important for the preservation of morals and civilization. Traditionally it was the legal duty of the husband to provide food, shelter, clothes and meet other demands of the wife, while the wife had to maintain the home and take care of the children in return. Though the concept of a legal contract remains intact, the roles are not the same as they were before. Marriage has gone through a lot of changes. For example, in the year 1967, the Supreme Court of the USA held prohibiting interracial marriages was against the principles of equality. The Supreme Court legalized same-sex marriage in the USA in 2015. The Court observed the nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.
Changes have occurred in India too, but not very significantly. The survey by The Lok Foundation-Oxford University, along with the Centre for Monitoring Indian Economy (CIME) shows Indians still marry the way their grandparents used to marry. As of January 2018, 93 percent of the respondents had arranged marriages, 3 percent had love marriages, and 2 percent were‘ love-cum-arranged’.
Possible issues over love marriages among youngsters and the Indian society: scope of the law
The Constitution of India guarantees every individual, the right to life and liberty through Article 21. The Supreme Court in various judgments from time to time has held that the right to marry a person of one’s choice is an integral part of Article 21. The right to marry is a universal right mentioned in Article 16 of the Universal Declaration of Human Rights. Hinduism recognizes marriage as one of the sixteen sacraments, a sacred bond that is not broken even after the death of a spouse. Modern Hindu law also recognizes marriage as a sacrament but also gives the liberty to adults to marry the person of their choice and dissolution of marriage by divorce. Muslim personal law recognizes marriage as a civil contract. To sum up, the right to marry also comes with the right to marry a spouse of one’s choice.
The right to choose one’s spouse refers to a ‘love marriage’. By marrying a spouse of one’s choice, he or she may not have violated any legal provision in India but definitely, it is not accepted by certain Indian families. The story of a Sikh woman Jas Kaur is an example of the same, where she was boycotted by her parents because she exercised her right to choose her spouse. Going against the tradition and culture of the society is never encouraged, rather, comes down heavily. Even today, Indian parents believe that their children are not wise enough to choose their life partners and it is their responsibility to find them a perfect partner. Even if the love marriages turn out to be successful, they are shown in a bad light and still, many elders do not approve of love marriages or consider them legitimate.
Another aspect that comes with love marriages is inter-caste and inter-religious marriages; this makes the matter more complex or taboo. Even today, caste plays a dominant role in marriages, and going against the social system is considered a sin. The couples who go with their choice, against their parent’s will are no less than black sheep in the eyes of Indian society, and their act is considered a revolt against the social customs. In a particular example, Ravindra Parimar, a Dalit boy married Shilpaba Upendrasinh Vala, a Rajput. The girl had to flee from her parental home to marry the boy of her choice. This shows that such couples feel a constant threat to their life for this and continuously change their place and city of residence to stay together. BBC even reported in 2012 that a village just about 40 km from the Indian capital had banned love marriages. Honour Killing is another phenomenon that makes love marriages more difficult for couples. Khushboo, a 19-year-old, married, pregnant girl, was killed by her father for marrying a boy of her choice. Delhi also reported a case of Honour Killing in June 2021; the case was covered under the title ‘Kindly protect us’: Target of honour killing wrote to Sonipat Police. Even in Karnataka, similar incidents took place in June 2021. Which makes it very clear that the issue of honour killing is prevalent all over India, even in 2021. The latest survey of the Pew Research Centre is evidence of unacceptance of interfaith and inter-religion marriages in India. The survey has been further explained by Ms. Rama Srinivasan, an anthropologist based in Germany. Religion, caste, patriarchy are all responsible for the fact most Indians are not allowed to choose who they will get married to. Ms. Rama even explains the uncooperative nature of bureaucracy and the need for a strong law that allows interfaith marriage.
The Special Marriage Act, 1954 was one of the steps taken by the government to help the inter-faith and inter-religion couples, recognizing their marriage and granting them police protection if the couple feels there is a threat to their life. However, the ground reality has always differed from the law in books. The Apex Court has noted that the human rights of a daughter, brother, sister, or son are not mortgaged to the so-called or so-understood honour of the family or clan or the collective. The Supreme Court has said the society must learn to accept intercaste, interfaith marriages; it would hardly be a desirable social exercise for parents to shun their children only because they decided to marry outside their caste or community.
An analysis of the case of Chandrashekhar D Chavan v. the State of Maharashtra
False cases being filed against couples by their family members, a technique used to separate them, is not uncommon. A similar case was brought before the Bombay High Court by the name of Chandrashekhar D Chavan v. the State of Maharashtra (2021).
Facts of the case
A missing complaint was filed by the petitioner, Mr. Chandrashekar D Chavan. The complaint stated that his daughter Maithili Chandrashekhar Chavan, eighteen years old at that time, had been kidnapped by a boy aged 20 years. The petitioner alleged a threat to the life of her daughter and prayed for the writ of Habeas Corpus. The petition was filed on February 1, 2021.
The record placed in the court by the Investigating Officer of the case stated that this case involves a love angle which the petitioner is reluctant to accept. The alleged missing girl was undoubtedly an adult and has eloped from her parental house with the boy, who is also an adult but not of marriageable age. The boy was twenty years old. The legal age of marriage in India is 18 for women and 21 for men.
The contention of the petitioner
The petitioner, father of the girl Chandrashekhar D Chevan filed a writ petition invoking the writ of habeas corpus. He apprehended that there was a danger to the life of his daughter.
Findings of the Court
The petition was filed on February 1, 2021. The matter was first heard on March 16, 2021, and the court observed the following:
- Based on the information provided by the Investigating Officer, it is learned that the missing girl is an adult and the missing boy is said to be born on March 29, 2000. He is less than twenty-one years of age.
- The court observed that a love angle is present in this case which the petitioner is reluctant to accept.
- The court asked the concerned District Superintendent of Police to look personally into this matter as the petitioner has some serious concerns and his daughter needs to be produced alive.
- The matter was further posted to March 19, 2021.
On the next date i.e., March 19, 2021, the honourable court made the following observations:
- On the directions of the court, the District Superintendent of Police made a team of two police officers, to be monitored by the Additional Superintendent of Police.
- The police requested time till March 31 to submit the progress report.
- The petitioner has faith in the actions taken by the police officials and this matter will now be taken further on March 31, 2021.
- If required, the police authorities will also take the assistance and help of the petitioner in finding his daughter.
March 31, 2021, was the final date of this case. The girl was produced before the court. The identity of the girl was established by her Aadhar Card. The photostat of the same was collected by the Investing Officer and now was a part of the police record.
Upon questioning, she revealed before the court her date of birth, that she is of 18 years of age, that she is in love with the boy accused by her father, that she and the accused had planned to marry once he attains the marriageable age of 21 years. She then requested not to record her current place of residence as she believed her father would use that to trace her and cause physical harm to the couple.
On being asked whether she desired to meet her father and talk to him, she offered the following answer; “I do not wish to meet my father or talk to him. I should not be forced to meet him or my mother. I do not desire to return to the home of my parents. I should not be forced to return to Morewadi, Tq. Ambejogai. I am accompanied by respondent No.5 (accused boy), who is not present in the Court Hall but is standing away from the Court at a distance. I will accompany him to the place from where we both travelled voluntarily to this Court, today.”
She also confessed that she had left her home voluntarily and she has not suffered any physical harm, physical abuse, or any form of tormentation and is happily living with the boy.
Justice Ravindra V. Ghuge and Justice B.U. Debadwar said since the missing girl is an adult and the boy is also an adult, though not of marriageable age, the law has no reason to detain the girl, especially considering the replies given by her.
The Court also added that if the missing girl or the respondent suffers any physical harm and if they allege that the petitioner has caused it, the petitioner would be held liable for action under the law. The Court expects the petitioner to show restraint and reciprocate by not committing any offence against the respondent.
Similar case laws
Seema Kaur And Anr v. State Of Punjab And Others (2021)
Facts of the case
Ms. Seema Kaur and Mr. Gurpal Singh filed a petition in the Punjab and Haryana High Court seeking protection of life and liberty from none other than the family members of the girl herself. The girl was 17 years of age and the boy was 20 years of age. The parents of the girl came to know about the love affair and tried to get her married to the boy of their choice. In response, the girl left her paternal home and started living with the boy in a live-in relationship, till the time they did not attain marriageable age. Further, the petitioner had also stated that her relationship would never be accepted by her parents as the boy belonged to a different caste, and her father, the respondent in the case, had already threatened to kill her.
Observation and Judgement
Justice Sant Parkash, while granting protection to the couple, observed that the couple has decided to live together and it is not for the court to judge them. Granting them protection may socially be considered wrong, but not granting them protection would mean failure of the court in protecting the life and liberty of the individual enshrined in Article 21 of the Indian Constitution.
The bench also highlighted the issue of honour killings prevalent in some parts of the country and hinted that it can also not be ignored in this case. Further, the court went on to say that once the individual is an adult and has chosen his or her life partner, it is for no one, be it a family member or any other person of the society, to cause hindrance to their peaceful life.
Shakti Vahini v. Union Of India (2018)
Facts of the Case
A writ petition was brought before the Supreme Court of India under Article 32 of the Indian Constitution. It sought directions for the state government and the central government to combat the crime of honour killing and frame a national framework for the same.
Observation and Judgement
Justice D. Mishra disposed of the petition but made some important observations in the due course of the case. He quoted French philosopher and thinker, Simone Weil, “Liberty, taking the word in its concrete sense, consists in the ability to choose.” Justice Mishra added to it, “We don’t live in a world in which there exists a single definition of honour anymore, and it’s a fool that hangs on to the traditional standards and hopes that the world will come around him.”
The case of Lata Singh v State of Uttar Pradesh (2006) was also quoted in the following case, which said, “…This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he or she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage.”
Gulshan v. State of Uttar Pradesh (2021)
The Allahabad High Court observed, “In the opinion of this court there is no place for citizens in our society who act in derogation of the much cherished constitutional values of individual liberty, and, instead, repose faith in archaic social values of family honour to an extent that they would go to eliminate a family member choosing a life partner for herself.”
Supreme Court guidelines
When a boy and a girl get married with their free consent, with a bonafide intention, committing no criminal and civil offences, and are also competent to marry, no individual in the society can question them. Taking it into account the Supreme Court has drawn certain guidelines to protect the fundamental rights of young individuals.
- Instruction to the states to identify the districts where incidents of honour killings have occurred in the past. And a Deputy Superintendent of Police rank officer to keep in check the same does not occur again.
- In case a couple expresses a threat to their lives, Section 144 of the Code of Criminal Procedure can be invoked by the police.
- Urged the local administration to take some proactive and positive action and provide all logistic support to such couples for solemnizing the marriage.
Giving direction and implementing them effectively remain two different things. Apart from legal measures, it is a social issue that requires changing the perspective of society. There is a need to run educational awareness campaigns across India to make the people understand that young adults must be given the choice to choose their spouses. Creating trouble in their lives in the name of custom and traditions will only attract a legal suit. Whenever there will be a conflict between the custom and the law of land, the law in existence will deal with it.
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