Author and academic, Delhi University
The failure of the judicial system in ensuring effective protection of the right to choice in marriage, especially in the face of a modern equitable law, and/or collusion of the state agencies in sabotaging this right, is assuming alarming and dangerous proportions. The news reports on the video gone viral of Sakshi Mishra, a Brahmin girl in Uttar Pradesh, and Ajitesh, a Dalit boy, being hounded by the girl's family belonging to Rajesh Mishra, a BJP MLA, is currently making headlines. The couple also filed a petition in the Allahabad High Court seeking protection for themselves and Ajitesh’s family.
Legal rights violated
The right to choose, if, when and whom to marry, is a fundamental human right. It is guaranteed by most human rights instruments. Provisions of the Indian Constitution on non-discrimination on the basis of sex, equal protection of law, equality before law and the protection of life and personal liberty, safeguard this right. In other words, the introduction of modern concepts like adulthood and sanctity given to individual rights has legally turned the individual settlement of marriage between two consenting heterosexual adults to be legitimate.
The state is under obligation to enforce such a right. Yet, its failure in ensuring effective protection to the right of choice in marriage is assuming alarming and dangerous proportions. It only reinforces the coercion of individuals by family/community, which is applied independently, or in collusion with the state apparatus. The ideological underpinning of all concerned is the same. The emphasis is missing on a dynamic, liberal and progressive implementation of legal rights. Instead, its infringement is aided by the acceptance of customary norms that empower the family or community to take marriage decision on behalf of two individuals.
The Hindu Marriage Act
This right to marry was enacted through The Hindu Marriage Act in 1955. According to this Act, except for certain incest taboos, the legal restrictions on marriage of two adult Hindus — of a girl above 18 and a boy above 21 years of age — are almost non-existent. This implies that under the law, inter-caste marriages are permitted. The state is obliged to enforce such a right. But is this obligation being honoured? No.
Explaining this, a criminal lawyer in Rohtak stated that this was primarily because most inter-caste cases are hypogamous and often the boy belongs to a Dalit or a backward community. The general impression gathered from my field work is that the assertion of such rights by groups suffering customary exclusion and disabilities meets with little encouragement, if not active hostility, at the hands of local officials, including lower level judiciary, who share the viewpoint of the higher-caste groups. Also, lower courts are known to be amenable to the pulls and pressures of the local society. This factor helps explain partially the verdicts of the lower courts in runaway cases which readily accept the ‘guilt’ of the female and inflict heavy sentences upon the male — a sentence which is salutary and is inflicted to set an example.
At the level of the high court, where an appeal is made, such a bias is not noticeable. Consequently, at this level, such a case verdict, contested on written testimony rather than oral, stands either diluted or done away with. But by then, violence has almost always been inflicted.
The realisation that violence around marriages of choice is a human rights violation requiring attention from the state has taken a long time to gain recognition in India. Human rights activists and other progressive and democratic groups like the People’s Union for Civil Liberties (PUCL), People’s Union for Democratic Rights (PUDR), and Association for Advocacy and Legal Initiatives (AALI) in Lucknow and other women’s support groups have provided legal, physical and emotional support to the women’s fight in their right to choose their life partners and have played a critical and, indeed, life-saving role in the ultimate outcome of the conflict. The National Commission for Women has also provided succour to women placed in situations of distress regarding the recognition of their marriage.
These organisations have consciously reached out to the administration and the police in proposing ways and means to ease the situation for such couples. A brief attempt was also made in Muzzafarnagar in UP in August 2001 to set up an ‘Adult Rights Wing’ aimed at providing succour to young couples who were either forced to commit suicide or face ostracism and death for breaching caste, community and customary codes. Set up with great fanfare, the cell was to give security and legal assistance to those who wished to marry in courts, following family constraints. The district magistrate of Muzzafarnagar stated that all divisional magistrates had been instructed to ensure speedy disposal of applications received by adults and give them police protection.
However, our investigating team found that within three years, in 2004, the cell had ceased to function. There was also no information of any case being successfully dealt with through the intervention of this cell.
Supporting runaway couples
In 2018, the Supreme Court declared marriage between consenting adults to be legal, notwithstanding their caste. The SC also initiated a pilot project on the issue by examining the situation in the districts of Haryana, Punjab and Uttar Pradesh where attacks on young couples were common. It instructed the police and the state to give such couples protection by housing them in protection homes. Even before that, the Punjab and Haryana High Court had directed the state government to set up protection homes for runaway couples in 2010. Official data reveals that while only six couples had sought protection in 2010, within four years, there were 1,465 such couples housed in protection homes in Haryana. The fear of being killed was behind the rising number of runaway couples. These shelters have been set up in the Police Lines of every district.
Such homes, however, can only be a temporary mechanism to protect such couples in the short term. They are unlikely to develop an understanding between the family/community and couples. There have been cases of couples getting killed within two to three years of leaving protection homes after the reconciliation had taken place. The legitimacy of such marriages still remains elusive.
It is high time we devise ways to socially legitimise them, accept them and give them recognition. For this, we should recall Ambedkar’s saying that the only way to a caste-less society is inter-caste marriages.