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This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discusses society’s consent as a hindrance in the marriage of two consenting adults thereby leading to the contravention of both fundamental and individual rights of the adults. 

Introduction 

Marriage has been and remains an integral part of Indian society. In India, marriage is a sacrament as it takes place not between two individuals but between two families, and therefore, this sacrosanct union of two individuals comes with certain challenges with respect to society and its perception of marriage. The institution of marriage, like other social phenomena, has been undergoing significant changes. Taking the children’s opinions for their marriage, the marriage’s diminishing stability, and the bridegroom’s family’s increased greed are some of the visible changes in the institution of marriage. Economic progress, technological advancements, greater materialism in society, and legislative attempts are only a few of the significant causes that have led to changes in the institution of marriage.

The Hindu Marriage Act, 1955 recognizes marriage as a contract between two individuals and thus abiding by Section 10 read with Section 14 of the Indian Contract Act, 1872, free consent between the parties is an essential ingredient of a valid contract. Although Indian law clarifies the need for free consent between the parties getting married, society’s beliefs and thought-process often overpower legal force. The judiciary has many times stepped in to avoid existing laws from getting degraded by stringent ignorance from the people of the society. This article intends to highlight how society’s consent holds more face value in comparison to the consent of two adults wanting to get married with respect to India and how the Indian judiciary has time and again arrived at such scenarios protecting the consenting adults from facing unnecessary harassment. 

Society and marriage : the age-old friendship

Fundamentally, marital relationships govern human behaviour amongst people of different sexes. It has evolved and progressed in tandem with humanity’s socioeconomic advancement. It’s a social proclamation of a new connection. It has a significant influence on social welfare since it is a demographic occurrence. Kinship is seen as a primary realm of the kinsmen. The kinship system, which is made up of families and other forms of kin groups, is one of the most essential structural subsystems of any civilization. 

Because not everyone can afford a socially acceptable union, family, community, and clan, rebellions become unavoidable. Without the backing of their families, many couples marry in small, private ceremonies, while others forgo even that formality and begin living together. This ‘disobedience’ to community standards is sometimes regarded as so dangerous that the family believes the only way to redeem themselves is to engage in ‘honour killing.’ The Indian courts, notably the constitutional courts, have consistently defended the rights of couples who engage in such daredevilry, especially against anticipated murder. But a recent judgment delivered by the Punjab and Haryana High Court has brought in serious concerns on the citizen’s hope about the Indian judiciary.

The High Court of Punjab and Haryana declined to provide protection to a live-in couple on the grounds that the Petitioners sought a ‘stamp of approval’ on their live-in relationship under the guise of requesting protection, putting their lives at risk. The Court’s remark has pierced the reasonable society’s conscience. When the couple sought the High Court in need of protection after leaving their community’s orthodox and life-threatening clutches, it was the court’s constitutional responsibility to preserve their life and liberty in line with the law, rather than relying on supposed morality. This is a textbook example of egregious injustice that requires the Supreme Court’s quick involvement.

Legal protection available for consenting adults getting married

Unlike Article 16 of the Universal Declaration of Human Rights, the Indian Constitution does not specifically recognize the freedom to marry as a fundamental or constitutional right. Marriage is controlled by many statutory enactments, but its recognition as a Fundamental Right has only come about as a result of Supreme Court judgments in India. Article 141 of the Constitution makes such a statement of law binding on all Indian courts. 

Article 21 of the Indian Constitution guarantees the Right to Marry the person of one’s choice. The Right to Life is guaranteed by the Constitution. This privilege may only be taken away by legislation that is substantively and procedurally fair, just, and reasonable. Intrinsic to the liberty which the Constitution guarantees as a Fundamental Right is the ability of each individual to make decisions on matters central to the pursuit of happiness.

In Justice KS Puttaswamy (retd) and others v. Union of India and others (2018), a Constitution Bench of nine Justices of the Supreme Court of India dealt extensively with the issue of choice. The Court had unanimously concluded that “the Right to Privacy is safeguarded as an integral aspect of the Right to Life and personal liberty under Article 21,”. In paragraph 81 of Justice Dr. DY Chandrachud’s majority opinion, the Court stated that the fundamental Right to Privacy in India would cover at least three aspects: 

  1. Privacy of the person, 
  2. Informational privacy, and 
  3. Privacy of choice, which protects an individual’s autonomy over fundamental personal choices.

The third point among the aforementioned points includes the Right to Marry a person of his or her own choice. 

The Prohibition of Child Marriage Act, 2006, the Guardians and Wards Act, 1890, the Majority Act, 1875, the Family Courts Act, 1984 and the Protection of Women from Domestic Violence Act, 2005 are other notable legislation existing in India that stands for a person’s Right to Marry.  Thus not only do we have statutory provisions promoting the Right to Choose and Marriage as an integral part of the Right to Life and Personal Liberty, but the Indian courts have also delivered progressive judgments that have remained robust precedents to abide by in this regard. 

Growth of Khap Panchayats and their dominance 

Khaps are caste and community-based assemblies in northern India that have a voice on a variety of topics, including marriage, dowry, and children’s education, based on ancient practices. They are mainly composed of senior men from the Jat group. The Supreme Court had ruled in Shakti Vahini v Union of India & ors (2018), that any attempt by Khap Panchayats or any other assembly to hinder or prohibit two consenting adults from marrying is totally ‘illegal,’ and established preventative, corrective, and punitive measures in this respect. The Court’s decision was based on a petition brought by Shakti Vahini, a Non-Governmental Organization (NGO) in 2010. The Petitioner had asked the Court to order the states and the federal government to implement a strategy to prevent honour murders. 

The Indian courts and their viewpoint on consenting adults wanting to get married 

The Supreme Court, as well as other Constitutional Courts, have often recognized that a static judicial interpretation of the Constitution would suffocate the spirit of the Constitution in a country undergoing fast social and economic development. A citizen of India has the Right to Protect their own privacy, as well as the privacy of their family, marriage, reproduction, maternity, child-bearing, and education, among other things. The freedom to marry a person of one’s choice is enshrined in Article 21 (Right to Life and Liberty) of the Constitution, according to the Supreme Court, which overturned a Kerala High Court ruling that annulled Hadiya and Shefin Jahan’s marriage in 2017. Two distinct lengthy concurring judgments were issued by the three-judge bench, one by Chief Justice Dipak Misra and Justice A M Khanwilkar and the other by Justice D Y Chandrachud. 

Lata Singh v. State of Uttar Pradesh (2008)

Lata Singh v. State of UP, a 2006 case involving an inter-caste marriage, was one of the early instances dealing with society’s barriers to adults getting married with mutual free consent. The Supreme Court ruled that because the Petitioner was a major, she had the Right to Marry whoever she chose and that there was no statute prohibiting an inter-caste marriage. The verdict, on the other hand, was limited to the facts of the case and did not constitute a “statement of the law” by the Court. The Court did, however, specifically accept the Petitioner’s ability to pick her own spouse.

Re: Indian Woman says gang-raped on orders of Village Court published in Business & Financial News (2014)

Newspaper reports of a 20-year-old Indian woman being gang-raped on the instructions of a village court were taken up by the Supreme Court suo motu. Because the woman had a connection with a man from a different caste, the local court or community panchayat issued their penalty. The Supreme Court emphatically stated that “An intrinsic part of Article 21 of the Constitution would be the freedom of choice in marriage. Such crimes are the outcome of a State’s ineptitude or unwillingness to defend its citizens’ Fundamental Rights. Article 21, which deals with the Right to Life and Personal Liberty, is a broad article that encompasses the inalienable Right to Marry the person of one’s choice”. 

Mayra Alias Vaishnavi Vilas Shirshikar and Anr v. State of UP and Ors. (2021)

The Allahabad High Court, in an extremely commendable, courageous, cogent, composed, and convincing judgment titled Mayra alias Vaishnavi Vilas Shirshikar and others vs State of UP and others  (2021), dealt with a batch of 17 petitions that were concerned with an interfaith marriage contracted by the Petitioners who sought protection from the Court, while underscoring that Uniform Civil Code (UCC) is long overdue thereby calling upon the Central Government to implement the mandate of Article 44 of the Constitution of India. The Hon’ble High Court made the following observations: 

  1. The State and private respondents are prohibited from interfering with the Petitioners’ Right to Life, Liberty, and Privacy as men and women. Taking the same into account, the Court ordered that the Petitioners’ safety and protection should be ensured by the police authority of the individual districts whenever asked or required.
  2. Once the two adult persons agree to engage in valid and legal matrimony, the consent of the family, the community, the clan, the State, or the Executive is not required. Their willingness must be delivered piously, gracefully, and dignifiedly. The Marriage Officer/Registrar cannot refuse to register a validly solemnized marriage and/or demand that the district authority approve the conversion in case of inter-faith or inter-caste marriages.
  3. The duty of the court is to uphold the right and not to abridge the sphere of the right unless there is a valid authority of law. The choice of a partner, whether within or outside marriage, lies within the exclusive domain of each individual.
  4. Marriage’s intimacies are contained inside an inviolable zone of seclusion. Questions of faith have no bearing on an individual’s full freedom to pick a life partner.
  5. Interfaith marriage is not prohibited by the Unlawful Conversion Act of 2021. The Marriage Registrar/Officer does not have the jurisdiction to refuse to register a marriage simply because the parties have not secured the requisite conversion consent from the district authorities. This type of permission is optional and not required. If construed otherwise, the Act would fail to pass the rationality and fairness test and would fail to meet the requirements of Article 14 and Article 21 of the Indian Constitution.

Swaleha Hussain v. State of Uttarakhand & another (2021)

“Adults, of course, have the freedom to marry whoever they want. As a result, neither family members nor acquaintances of the family should use any form of pressure” stated a Bench of Chief Justice Raghvendra Singh Chauhan and Justice Alok Verma of the Uttarakhand High Court in a recent case of Swaleha Hussain v. State of Uttarakhand & another (2021). The Uttarakhand High Court ordered the Uttarakhand State and the Director-General of Police to ensure that if a complaint is received about threats made to a young couple or those about to marry, an FIR is supposed to be filed right away, and severe action is to be taken against the perpetrators. 

Significantly, the Court noted that it is inundated with criminal applications from those who are about to get married or who have already got married. In many of these situations, the Court remarked that people who are engaged in an inter-caste and inter-community marriage, or marriage against the family’s desires, face threats from family members or anti-social groups.

Navjet Singh Johar and others v. Union of India (2018)

A five-judge Constitution Bench of the Supreme Court of India in Navjet Singh Johar and others v. Union of India (2018) declared Section 377 of the Indian Penal Code, 1860, a colonial-era provision that criminalized homosexual relations, unconstitutional to the extent that it prohibited voluntary sexual intercourse between two consenting adults. Whether the Right to Marry exclusively applies to heterosexual couples rather than same-sex couples was answered by the Court in this landmark decision.

Justice Chandrachud in the present case had observed that members of the LGBT community “are entitled, like all other citizens, to the entire spectrum of Fundamental Rights, including the liberties protected by the Constitution, as well as equal citizenship and “equal protection of the law.” As a result, once members of the LGBT community are “entitled to the entire spectrum of constitutional rights,” it is clear that same-sex couples planning to marry must be granted the basic right to marry the person of their choice. If such a right is denied, individuals can undoubtedly go to the constitutional courts to have their fundamental and inherent rights enforced.

Conclusion 

It is extremely necessary for a society and its people to think progressively when it comes to matters of societal importance. Over-concern about the marriage of two consenting adult individuals often takes a back step in the process of societal development. Education and awareness are the two key elements that can contribute to regulating positive changes within a society thereby helping in the metamorphosis of the thought-process of individuals of every age group living in a society. Laws can help to be a catalyst in driving the society towards an optimistic outlook to some extent, but it is the perception and mindset that needs to change for this Indian society when it comes to marriage. 

References 

  1. https://www.researchgate.net/publication/323525314_Significance_of_Marriage_as_Social_Institution_in_Indian_English_Writings.
  2. https://www.outlookindia.com/website/story/supreme-court-declares-khap-panchayats-illegal/310063.
  3. https://www.livelaw.in/top-stories/supreme-court-live-in-couple-ph-high-court-socially-morally-unacceptable-remark-order-protection-175308.
  4. https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=1483&context=faculty_scholarship.

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