Ravi Kant , Advocate Supreme Court of India
All forms of gender based violence, “crimes of honour” deprive women of the right to life, liberty and security of person, the right to be free from torture or cruel, inhuman or degrading treatment or punishment, right to equality in the family and the right to the highest attainable standard of physical and mental health. In the broader context of patriarchal principles motivating “crimes of honour”, India is obligated as a state party to ensure that all discrimination against women in matters relating to marriage and family relations are eliminated, providing them with the same right to enter into marriage and to freely choose a spouse and to enter into marriage only with their free and full consent .This includes ensuring that informal decision making bodies operating on customary laws, such as the khap panchayat, are refrained from enforcing their dicta, and interfering with the right of women to choose their spouse.
India, as a state party to CEDAW has the legally binding obligation to “eliminate discrimination against women by any person, organization or enterprise,” as enumerated in article 2e. State parties have to take appropriate measures to eliminate prejudices and customary practices, such as “crimes of honour”, “which are based on the idea of the inferiority or the superiority of either of the sexes,” as enumerated in article 2e. Creating statutes that criminalize the different types of acts that fall within the ambit of “crimes of honour”, while essential, is certainly not adequate if there is no systematic enforcement of the statutes. Active prosecutions are one of the means to achieve the practical realization of eliminating discriminatory principles such as “crimes of honour”, in order to ensure that state parties meet their obligations to “take all appropriate measures to eliminate discrimination against women [article 2]. Taking preventative measures, such as promoting gender sensitization and initiatives on combating dated patriarchal notions, are also necessary to eliminate discrimination against women.
|INDIAS NATIONAL COMMITMENT
|Article 14 , Constitution of India||The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.|
|Article 15(1) , Constitution of India||The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.|
|Article 15(3) , Constitution of India||Nothing in this article shall prevent the State from making any special provision for women and children.|
|Article 21 , Constitution of India||No person shall be deprived of his life or personal liberty except according to procedure established by law.|
|Convention on the Elimination of All Forms of Discrimination against Women (1981)||Article 2
States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:
(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;
(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;
(g) To repeal all national penal provisions which constitute discrimination against women.
States Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;
1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
|Convention on the Elimination of All Forms of Discrimination against Women (1981)||General Recommendation No. 195 that “discrimination” includes “gender based violence …. that is directed against a woman because she is a woman or that affects women disproportionately.”
Gender based violence includes “acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.”
The Committee advises that traditional, patriarchal and archaic views that subordinate women to men contribute to gender based violence. These socially constructed gender based stereotypes legitimize and “justify gender-based violence as a form of protection or control of women.” “Crimes of honour”, including fatwaas, “honour killings,” rape, beatings and torture, forced separation and divorce, extortion and displacement, that are specifically and disproportionately targeted towards woman, are similarly justified as means to control women
|Commission on Human Rights||In its resolution 2000/31 on extrajudicial, summary or arbitrary executions, the Commission on Human Rights expressed concern at the large number of killings committed in the name of passion or in the name of honour reported by the Special Rapporteur, and called upon Governments to investigate such killings promptly and thoroughly; to bring those responsible to justice; and to ensure that such killings were neither condoned nor sanctioned by government officials or personnel. The Commission adopted similar resolutions in 2001 (resolution 2001/45) and 2002 (resolution 2002/36). In its resolution 2000/45 on the elimination of violence against women, the Commission defined the term “violence against women” as any act of gender-based violence that resulted in or is likely to result in physical, sexual or psychological harm or suffering to women, including crimes committed in the name of honour and crimes committed in the name of passion, and called upon States to condemn violence against women and not to invoke custom, tradition or practices in the name of religion to avoid their obligations to eliminate such violence. The Commission adopted similar resolutions in 2001 (resolution 2001/49) and 2002 (resolution 2002/52).
|Subcommission on the Promotion and Protection of Human Rights (former Sub commission on Prevention of Discrimination and Protection of Minorities)
|The Subcommission addressed crimes of honour in its resolutions 2000/10 and 2001/13 on traditional practices affecting the health of women and the girl child,3 in which it shared the concerns of the Special Rapporteur of the Subcommission on traditional practices affecting the health of women and the girl child about the perpetuation of certain harmful traditional practices, including crimes of honour, and appealed to all States concerned to intensify efforts to develop awareness of and mobilize national public opinion concerning the harmful effects of all forms of harmful traditional practices, in particular through education, information and training, in order
Attention has been drawn, particularly in recent years, to the issue of crimes against women committed in the name of honour at the international and national levels, and the issue has been addressed by intergovernmental and expert bodies within the United Nations system, and some measures have been taken by Member States to eliminate such acts.
|International Covenant on Civil and Political Rights .||As a member to this covenant the Union of India is mandated to provide to all its citizens the rights guaranteed under the following articles :
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a family shall be recognized.
3. No marriage shall be entered into without the free and full consent of the intending spouses.
4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
|Universal Declaration of Human Rights||The Union of India as a member to the Universal Declaration of Human Rights has an obligation to protect the lives, rights and liberty of individuals and protect them from such heinous crimes. The Universal declaration of Human Rights under Article 16 guarantees the following:
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
SUPREME COURT /HIGH COURT JUDGEMENTSJUDGEMENTS ON CRIMES OF HONOUR
WRIT OF HABEAS CORPUS ISSUES NOT ONLY FOR RELEASE FROM DETENTION BY THE STATE BUT ALSO FROM PRIVATE DETENTION / BEFORE THE COURT ACEDES TO THE REQUEST OF HUSBAND TO REGAIN CUSTODY HE NEEDS TO PROVE THE VALIDITY OF HIS MARRIAGE
MOHD. IKRAM HUSSAIN Vs. STATE OF U.P. & OTHERS AIR 1964 SC 1625
A writ of habeas corpus issues not only for release from detention by the State but also for release from private detention. At common law, a writ of habeas corpus is available to the husband for regaining the custody of his wife if she is wrongfully detained by anyone without her consent. Hence the order of the High Court was not without jurisdiction. However, issuing of a writ of habeas corpus at the instance of a husband is very rare in English law. In India, such a writ is probably never used by a husband to regain his wife and the alternative remedy under s. 100 of the Code of Criminal Procedure is always used. There is also the remedy of a civil suit for restitution of conjugal rights. In both these cases, all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact have first to be established. This is because the writ of habeas corpus is festinum remedium and the power can only be exercised in a a clear case. That is particularly so in cases where the petitioner is himself charged with a criminal offence in respect of the very person for whose custody he demands the writ. A writ of habeas corpus at the instance of a man to obtain possession of a woman alleged to be his wife does not issue as a matter of course. Though a writ of right, it is not a writ of course, especially when a man seeks the assistance of the court to regain the custody of a woman. Before a court accedes to his request, it must satisfy itself at least primafacie that the person claiming the writ is in fact the husband and whether a valid marriage between him and the woman could at all have taken place.
SUPREME COURT CALLS FOR COMPENSATION FOR ILLEGAL CONFINEMENT BY THE POLICE AT THE BEHEST OF GIRLS FAMILY IN A CASE OF CONTETIOUS INTERCASTE MARRIAGE / OPRDERS DISTRICT JUDGE TO FILE STATUS REPORT.
SUPREME COURT ORDERS COMPENSATION ON ILLEGAL CONFINEMENT, TORTURE AND HARRASMENT OF GIRL AND HER INLAWS ON THE BEHEST OF GIRLS FAMILY IN A CASE OF INTER CASTE MARRIAGE
ARVINDER SINGH BAGGA V. STATE IF U.P AIR 1995 SC 117
The Judgment of the Court was delivered by S. MOHAN, J.-
We have carefully perused the report. We are appreciative of the good work done by the learned District Judge. He had held a thorough inquiry by examining several witnesses to arrive at the truth. In our considered opinion the report is a fair one and deserves to be accepted. It is accordingly accepted.
The report in no uncertain terms indicts the police. It inter alia states:
“On a careful consideration of all the evidence on record in the light of the surrounding circumstances I accept the claim of Nidhi that she was tortured by the police officers on 24/25/26-7-1993. On 24-7-1993 she was pressurised by J.C. Upadhyay SHO, Sukhpal Singh SSI and Narendrapal Singh SI and threatened and commanded to implicate her husband and his family in a case of abduction and forcible marriage thereafter. She was threatened with physical violence to her husband and to herself in case of her default and when she refused, her family members were brought in to pressurise her into implicating them. On 25-7-1993 she was jolted out of sleep by Sukhpal Singh SSI and made to remain standing for a long time. She was abused and jostled and threatened by J.C. Upadhyay, Sukhpal Singh and Narendrapal Singh with injury to her body if she did not write down the dictated note. Sukhpal Singh SSI even assaulted her on her leg with danda and poked it in her stomach. She did not yield to the pressure. Then, on 26-7-1993 567 she was given filthy abuses and threatened by J.C. Upadhyay and Sukhpal Singh for writing a dictated note. She was pushed and jostled by them both. Sukhpal Singh SSI hit her with a danda on her leg and made threatening gestures aiming his danda on her head. Ultimately they both succeeded in making her write a note dictated by them whose contents were those which were incorporated by the investigating officer in his case diary as her statement under Section 161 CrPC. Thereafter on 27th July she was purported to be taken by K.C. Tyagi to the Court for the recording of her statement under Section 164 CrPC but was taken by J.C. Upadhyay SHO to Chauki Chauraha Police Outpost and kept there and brought to the police station and kept there. She was despatched from there to Nari Niketan only at 5 p.m. When ACJM 11 had passed orders for Nidhi being kept at Nari Niketan, Bareilly, K.C. Tyagi 10 was under obligation to take her from court to Nari Niketan straightway without any delay whatsoever but she was brought back to the police station and lodged there and only afterwards she was despatched from there for Nari Niketan. Then on 29-7-1993 while being taken to the court for the recording of her statement under Section 164 CrPC Nidhi was brought from Nari Niketan to the police station and there J.C. Upadhyay SHO commanded her to speak that which he had asked her to speak and if she did not make her statement accordingly and went with Charanjit Singh then she would not be spared by him and he would ensure that she underwent miserable lifetime.
He further told her that if she cultivated enmity with the police its consequences were only too obvious. So the torture extended uptil 29-7-1993. Torture is not merely physical, there may be mental torture and psychological torture calculated to create fright and submission to the demands or commands. When the threats proceed from a person in Authority and that too by a police officer the mental torture caused by it is even more grave.” This clearly brings out not only high-handedness of the police but also uncivilised behaviour on their part. It is difficult to understand why Sukhpal Singh SSI assaulted Nidhi on her leg with danda and poked it in her stomach.
Where was the need to threaten her? As rightly pointed out in the report that torture is not merely physical but may even consist of mental and psychological torture calculated to create fright to make her submit to the demands of the police? 5. A further reading of the report shows:
(ii) illegal arrest;
(iii) without personal knowledge or credible information that the arrested persons were involved in a cognizable offence; and
(iv)illegality of verbal order of arrest not contemplated under Section 55 CrPC.
This again is a blatant abuse of law.
The report clearly holds Narendrapal Singh SI of indulging in illegal arrest and detention in arresting Charanjit Singh Bagga and Rajinder Singh Bagga. Further, both of them were tortured as they were given danda blows at police station on 23-7-1993. The report blames J.C.Upadhyay SHO and K.C. Tyagi 10 for the wrongful detention of Nidhi. It concludes:
“The detention of a married woman in custody who is not an accused on the pretext of her being a victim of abduction and rape which never was to her knowledge and to the knowledge of the police officers concerned aforesaid is itself a great mental torture for her which cannot be compensated later but here we have found that she was tortured otherwise also by threats of violence to her and to her husband and his family and was given physical violence calculated to instil fear in her mind and compel her to yield and to abandon her marriage with Charanjit Singh Bagga which had been duly performed in Arya Samaj Bhoor and which had been duly registered in the office of Registrar of Hindu Marriages under the U.P. Hindu Marriage Registration Rules, 1973 framed by the Governor in exercise of the powers conferred by Section 8 of the Hindu Marriage Act, 1955 (Act No. XXV of 1955). She was made to write a statement as commanded by J.C. Upadhyay SHO and Sukhpal Singh SSI on 26-7- 1993 which was reproduced by the 10 in the case diary as her statement under Section 161 CrPC. The physical and mental torture was given to Nidhi on 24-7-1993 and 25-7-1993 by J.C. Upadhyay SHO, Sukhpal Singh and SSI and Narendrapal Singh SI but on 26-7-1993 it was done by only J.C. Upadhyay SHO and Sukhpal Singh SSI and there was no participation of K.C. Tyagi in the torture and harassment dated 24-7-1993, 25-7-1993 and 26-7-1993.”
On a perusal of all the above, we are really pained to note that such things should happen in a country which is still governed by the rule of law. We cannot but express our strong displeasure and disapproval of the conduct of the police officers concerned. Therefore, we issue the following directions:
1.The State of Uttar Pradesh will take immediate steps to launch prosecution against all the police officers involved in this sordid affair.
2. The State shall pay a compensation of Rs 10,000 to Nidhi, Rs 10,000 to Charanjit Singh Bagga and Rs 5000 to each of the other persons who were illegally detained and humiliated for no fault of theirs. Time for making payment will be three months from the date of this judgment. Upon such payment it will be open to the State to recover personally the amount of compensation from the police officers concerned.
Writ petition shall stand disposed of in view of the above terms.
JAMSHED AND ANOTHER VS STATE OF UTTAR PRADESH AND ORS
Gulshan Jahan had married Jamshed in the presence of witnesses and claimed to be major. However her father filed an FIR stating that she was a minor (14) and had been kidnapped by Jamshed. The High Court had to consider Gulshans disputed marriage and thereafter establish wether she was with Jamshed of her own sweet will. Medical examination established she was above 18 and the detention was illegal. Accordingly the court held that since Gulshan Jahan stated she had married Jamshed of her own choice and that the guardianship of her father had ceased the day she became a major and since both Gulshan and Jamshed were major the law did not prohibit them for loving each other They had to live therir lives with dignity and honour and make their life meaningful. The court also noted their right to privacy, to protection of life and personal liberty under Article 21 of the constitution.
JYOTI ALIAS JANNAT AND ANOTHER VS STATE OF UP AND OTHERS
According to Indian Majority Act 1875 a person who is 18 years of age is a major vide section 3 of the Act. The law deems that a major understands his / her welfare. Hence a major can go wherever he /she likes and live with anybody. India is a free, democratic, welfare country. Hence if a person is major even parents cannot interfere with that individual. Once a person becomes a major that person cannot be restrained from going anywhere and live with anyone. Individual liberty under Article 21 has the highest place in the constitution.
SHIV KUMAR GUPTA ALIAS RAJU VS STATE OF UP AND ORS 1999 LUCKNOW LAW REPORTER JOURNAL
Rani Gupta moved the court claiming her father was forcing her to marry a boy she disliked. Of her own free will she entered into marriage with a person of her choice. The Court accepted that she was a major and Rani was given the opportunity of making her statement to the court on her choice. The court stayed the arrest of her husband stating that the personal liberty of Rani Gupta should not be interfered with.
JOGINDER KUMAR V STATE OF UTTAR PRADESH AIR 1994 SC 1349
The Supreme Court in this case laid down guiding principles on the law of arrest.
In India, Third Report of the National Police Commission at p. 32 also suggested:
“An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines……” The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.
REGISTRATION OF MARRIAGES MADE MANDATORY
SMT SEEMA VS ASHWANI KUMAR Transfer Petition (civil) 291 of 2005 /Supreme Court
In the affidavit filed on behalf of the National Commission for Women (in short the ’National Commission’) it has been indicated as follows:
“That the Commission is of the opinion that non-registration of marriages affects the most and hence has since its inception supported the proposal for legislation on compulsory registration of marriages. Such a law would be of critical importance to various women related issues such as:
(a) prevention of child marriages and to ensure minimum age of marriage.
(b) prevention of marriages without the consent of the parties.
(c) Check illegal bigamy/polygamy
(d) Enabling married women to claim their right to live in the matrimonial house, maintenance, etc.
(e) Enabling widows to claim their inheritance rights and other benefits and privileges which they are entitled to after the death of their husband.
(f) Deterring men from deserting women after marriage.
(g) Deterring parents/guardians from selling daughters/young girls to any person including a foreigner, under the garb of marriage.”
As noted supra, except four statutes applicable to States of Maharashtra, Gujarat, Karnataka, Himachal Pradesh and Andhra Pradesh registration of marriages is not compulsory in any of the other States. As is evident from narration of facts though most of the States have framed rules regarding registration of marriages, registration of marriage is not compulsory in several States. If the record of marriage is kept, to a large extent, the dispute concerning solemnization of marriages between two persons is avoided. As rightly contended by the National Commission, in most cases non registration of marriages affects the women to a great measure. If the marriage is registered it also provides evidence of the marriage having taken place and would provide a rebuttable presumption of the marriage having taken place. Though, the registration itself cannot be a proof of valid marriage per se, and would not be the determinative factor regarding validity of a marriage, yet it has a great evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage is registered and the age of parties to the marriage. That being so, it would be in the interest of the society if marriages are made compulsorily registrable. The legislative intent in enacting Section 8 of the Hindu Act is apparent from the use of the expression “for the purpose of facilitating the proof of Hindu Marriages”. As a natural consequence, the effect of non registration would be that the presumption which is available from registration of marriages would be denied to a person whose marriage is not registered.
Accordingly, we are of the view that marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in their respective States, where the marriage is solemnized.
Accordingly, we direct the States and the Central Government to take the following steps:
(i) The procedure for registration should be notified by respective States within three months from today. This can be done by amending the existing Rules, if any, or by framing new Rules. However, objections from members of the public shall be invited before bringing the said Rules into force. In this connection, due publicity shall be given by the States and the matter shall be kept open for objections for a period of one month from the date of advertisement inviting objections. On the expiry of the said period, the States shall issue appropriate notification bringing the Rules into force.
(ii) The officer appointed under the said Rules of the States shall be duly authorized to register the marriages. The age, marital status (unmarried, divorcee) shall be clearly stated. The consequence of non-registration of marriages or for filing false declaration shall also be provided for in the said Rules.
Needless to add that the object of the said Rules shall be to carry out the directions of this Court.
(iii) As and when the Central Government enacts a comprehensive statute, the same shall be placed before this Court for scrutiny.
(iv) Learned counsel for various States and Union Territories shall ensure that the directions given herein are carried out immediately.
The false registration of kidnapping charges on eloping couples is very well reflected in the NCRB data. Inspite of thesestates being lersser trafficking prone areas there has been a substantial increase of Kidnapping and abduction in these three states
LATA SINGH CASE (2006)
Writ Petition (Crl.) 208 of 2004
This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her husband’s relatives.
We are of the opinion that no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioner’s brothers who were only furious because the petitioner married outside her caste.
We are distressed to note that instead of taking action against the petitioner’s brothers for their unlawful and high-handed acts (details of which have been set out above) the police has instead proceeded against the petitioner’s husband and his relatives. Since several such instances are coming to our knowledge of harassment, threats and violence against young men and women who marry outside their caste, we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one.
The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished.
This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/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 that they 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 intereligious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.
We sometimes hear of ‘honour’ killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism. The police at all the concerned places should ensure that neither the petitioner nor her husband nor any relatives of the petitioner’s husband are harassed or threatened nor any acts of violence are committed against them. If anybody is found doing so, he should be proceeded against sternly in accordance with law, by the authorities concerned.
We further direct that in view of the allegations in the petition (set out above) criminal proceedings shall be instituted forthwith by the concerned authorities against the petitioner’s brothers and others involved in accordance with law. Petition allowed.
PRADEEP KUMAR SINGH VS STATE OF HARYANA 2008(3) RCR (Criminal) 376
In this case the High Court laid down the law to decide on complaints against the boy by the girl parents in the case of runaway couple:
In this case, a large number of cases of run away couples were decided by this Court with the following directions:
(i)Whenever any intimation is received by the SSP/SP of concerned District regarding the marriage of a young couple with a threat and an apprehension of infringement of the right of life and liberty by the police at the instance of the family members of one of the spouses, the SSP/SP concerned will consider the representation and will himself/herself look into the matter and issue necessary directions to maintain a record of the said intimation under Chapter 21 of the Punjab Police Rules.
(ii) On receipt of above said intimation of marriage by any police officer, necessary directions will be issued to the concerned Police Station to take necessary steps in accordance with law to enquire into the matter by contracting the parents of both boy and girl. The matter regarding age, consent of the girl and grievance of her family will be determined. In the eventuality of any complaint of kidnapping or abduction having been received from any of the family members of the girl generally the boy (husband) will not be arrested unless and until the prejudicial statement is given by the girl (wife). Arrest should generally be deferred or avoided on the immediate receipt of a complaint by the parents or family members of the girl taking into consideration the law laid down by Hon’ble Supreme Court in Joginder Kumar’s case (supra);
(iii)If the girl is major (above 18 years), she should not forcibly be taken away by police to be handed over to her parents against her consent. Criminal force against the boy should also be avoided.
(iv)So far as the threat to the young couple of the criminal force and assault at the hands of the private persons is concerned, it would always be open to the police to initiate action if any substantive offence is found to have been committed against the couple;
(v)In case of any threat to the breach of peace at the hands of the family members of the couple it will always be open to the State authorities to take up the security proceedings in accordance with law;
(vi)It will not be open to the “run away couple” to take law in their hands pursuant to the indulgence shown by the police on the basis of their representation sent to the SSP/SP of the concerned District;
(vii)If despite the intimation having been sent to the SSP/SP there is an apprehension or threat of violation of right of personal life and liberty or free movement, the remedy of approaching the High court should be the last resort;
(viii)In case there is an authority constituted for issuance of marriage certificate as per the law laid down by Supreme Court in Seema’s case (supra) in the concerned districts, the couple of so called `run away marriage’ should get the marriage registered in compliance with the directions of the Supreme Court and a copy of the same should also be forwarded to the police along with the representations or any time subsequent thereto.
(ix)Nothing said here-in-above will prevent the immediate arrest of a person who fraudulently entices a girl with false promises and exploits her sexually as per the statement of the girl.”
AMINDER KAUR VS STATE OF PUNJAB AND ORS CRM-M 29790 of 2009 (O&M)
The Child Marriage Restraint Act, 1929 was enacted with a view to restrain solemnisation of child marriages.However, subsequently it was amended in 1949 and 1978 in order to raise the age limit of the male and female persons for the purpose of marriage. The Child Marriage Restraint Act, 1929 though restrains solemnisation of child marriages yet it did not declare them to be void or invalid. Since there was a hue and cry in the Society to prevent and provide more deterrent solutions by making stringent provisions to eradicate the evil practice of solemnisation of child marriages, the present Act i.e. The Prohibition of Child Marriage Act, 2006 came into being in the year 2006. The relevant provisions of the Act are as under :
Definitions – In this Act, unless the context otherwise requires-
(a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;
(b) “child marriage” means a marriage to which either of the contracting parties is a child;
(f) “minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority.”
9. Punishment for male adult marrying a child – Whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.
10.Punishment for solemnising a child marriage – Whoever performs, conducts or directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.
11.Punishment for promoting or permitting solemnization of child marriages –
(1) Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend upto one lakh rupees.
12.Marriage of a minor child to be void in certain circumstances – Where a child, being a minor – (a) is taken or enticed out of the keeping of the lawful guardian; or (b) by force compelled, or by any deceitful means induced to go from any place; or (c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes,
Interestingly the question that has been raised by the counsel for respondent No.4 was conspicuous by its absence in all the judgments which have been cited by the learned counsel for the petitioners. Therefore, the questions which arise for consideration of this Court are :
(i)In a case of run away marriage where the girl is admittedly minor, who has been enticed away from the lawful keeping of a guardian by her alleged husband against whom a case under
Sections 363/366-A IPC is also registered, whether such a marriage is void in terms of Section 12 of the Act?
(ii)Whether the persons who are in someway party to the such child marriage, are also liable for punishment under Sections 10 and 11 of the Act?
(iii)Whether a person who has enticed/taken away minor from the keeping of lawful guardian and against whom a case under the provisions of IPC has already been registered can claim police protection in the name of his life and liberty?
In this case the facts are not in dispute. Petitioner No.1 was a minor girl being 16 years and 2 months of age at the time of alleged marriage. According to Section 3 of The Majority Act, 1875 every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. According to Section 2 (f) of the Act “minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority. According to Section 2 (a) of the Act, “child” means a person, who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age and according to Section 2 (b) of the Act, “child marriage” means a marriage to which either of the contracting parties is a child. Then according to Section 12(a), the marriage of petitioner No.1 which falls within the definition of child and within the definition of minor being the age of 16 years and 2 months who has been enticed away out of the keeping of the lawful guardian cannot contract the marriage and her marriage shall be null and void.In view of those provisions, I have no other choice but to hold that marriage of petitioners No.1 and 2 which is alleged to have been performed on 21.10.2009 as per Marriage Certificate (Annexure P-1 undated) as void marriage and none of the judgments which have been cited by the learned counsel for the petitioners in support of their case, is applicable to the facts and circumstances of the present case because in the case of Ravi Kumar (supra), the Division Bench had considered only the provisions of Sections 5 and 18 of the Act of 1955 to observe that in case of violation of 5 (iii) of the Act of 1955, the punishment is only 15 days simple imprisonment with fine of Rs.1000/- or both but the marriage is not illegal or void. However, much water has flown thereafter and now for the contravention of Section 5(iii)of the Act of 1955, the punishment under Section 18 (a) has been enhanced to 2 years rigorous imprisonment and/or with fine upto Rs.1 lac or with both. Moreover, the case of Ravi Kumar (supra) was decided on 5.10.2005. At that time, the Act was not in force as it did not receive the accent of President of India and has been notified w.e.f 1.11.2007. Therefore, the learned counsel for the petitioners cannot take the advantage of the observations made in the case of Ravi Kumar (supra). Insofar as the case of Ridhwana and another (supra) is concerned, in that case also this Court had prima-facie found that there is evidence collected by the police that girl was more than 18 years of age but still while parting with the judgment for the sake of argument, it was decided that even if girl is 16 years and 2 months age and has married with her own sweet will, no offence is said to have been committed. This Court had no occasion to refer to the provisions of Section 12 of the Act. Therefore, the ratio laid down in these cases is not applicable. The case of Lata Singh (supra) itself talks about the persons who were major at that time when they got married and on that premise, it was held that if the persons are major and have got married on their own, their life and liberty should not be threatened by the persons who are against their marriage. Hence, the said judgment is also of no help to the present petitioners. In the case of Pardeep Kumar Singh (supra) this Court had laid down as many as nine directions but in none of the directions it has been provided that if the girl is minor and has been enticed away for the purpose of marriage by alleged husband, the said marriage is valid. Hence, I have found that provisions of Section 12 of the Act would apply with full rigour in the present case and the marriage which has been solemnised by petitioner No.2 with petitioner No.1, who is child and a minor, is unsustainable in the eyes of law and is thus, declared as void. The second question involved in this case is that whether the persons, who have performed the marriage are also liable for punishment. In this regard Sections 10 and 11 of the Act provides for punishment for such persons and Section 15 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence shall be cognizable and non-bailable. Therefore, I hold that the person who has performed or abetted the child marriage of petitioner No.1, is also equally liable and for that purpose, I direct the state to take appropriate action by lodging the case against the persons who are responsible for the performance of the child marriage in the present case. In respect of the third question, the petitioners cannot be allowed to take the benefit of the constitutional remedy of protection of their life and liberty on the pretext of their void marriage. The life and liberty of petitioners No.1 and 2 is only endangered and is being threatened by respondent No.4 so long their marriage legally subsists but once their marriage is declared to be void, there is no threat left to their life and liberty. Moreover, such a case where the allegation against the husband is of enticing away minor girl from the lawful keeping of guardian/parents and a case has been registered under Sections 363/366-A IPC, no protection under Section 482 Cr.P.C. can be granted by this Court because in that eventuality police protection has to be granted to a fugitive of law.
FIAZ AHMED AHANGER AND ORS VS STATE OF JAND K 2009 (3) RAJ 692
“In such cases of inter-caste or inter religion marriage the Court has only to be satisfied about two things:
(1) That the girl is above 18 yeas of age, in which case, the law regards her as a major vide Section 3 of the Indian Majority Act, 1875. A major is deemed by the law to know what is in his or her welfare.
(2) The wish of the girl.
In the circumstances, we direct that nobody will harass, threaten or commit any acts of violence or other unlawful act on the petitioner, Chanchali Devi/Mehvesh Anjum and the petitioner’ family members and they shall not be arrested till further orders in connection with the case in question. If they feel insecure, they can apply to the police and, in such event, the police shall grant protection to them.”