Joginder Singh Toor

THE presence of newly wed couples in Punjab and Haryana High Court, every day, seeking protection against those, in whose cradle they spent their childhood, in whose care and custody they reached the age of puberty and marriage, got education to stand high in society, and all of a sudden, get afraid of them, scared to the verge of losing independence and discretion, to choose their life partner. The antagonism inviting anguish leading to harrowing results.

Who is to be blamed? The connoisseur and common man is baffled. Are laws inadequate? Is the education faulty, or the society being traditionally conservative, unable to adopt the social changes, the emerging values, the revolting trends in the youth against old values or the vested social, political and economic interests?

Marriage amongst Hindus, Jains, Budhists, Sikhs and the alike is a sacrament, among Muslims a contract and among Christians an understanding. It is not only marriage of the couples but that of the families, tribes and castes. It is sometimes social link, sometimes political bondage and at some other time source of strife. There have been wars for women, resulting in the loss or gain of kingdoms. Therefore, marriages used to be arranged by parents, families, tribes, approved by society around, the priest, the pope and the Parliament in some countries. Institution of marriage has diverse angles.

Laws tend to protect life and liberty of the people. As an integral part of which social behaviour and social institutions need laws for their protection, how so ever obsolete they become. Changing social conditions compel change in laws and protection of changing values and trends. In this direction certain laws relating to marriage and freedom of choice came into existence, certain existing laws had to be changed and some are still in the waiting because of baffling state of mindsets and antagonistic social values, refusing to get changed.

It being a universal phenomenon, the General Assembly of the United Nations adopted Universal Declaration of Human Rights in 1948 Article 16 of which provides:- “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. Marriage shall be entered into only with the free and full consent of intending spouses.”

Not stopping at adopting the declaration, the “United Nations International Covenant Civil and Political Rights” came into force on 23rd of March 1976 reiterating “the right of men and women of marriageable age to marry and to found a family, the marriage to be entered into with free and full consent of the parties.

Still further the Convention on Elimination of All Forms of Discrimination against Women adopted by the General Assembly of the United Nations in 1979 came into force on 3rd September 1981, as a result of 30 years’ experience based on several conventions and declarations requiring the states being parties, to take appropriate measures to eliminate discrimination against women and in all matters relating to marriage ensuring the “same right to enter into marriage, the same right freely to choose a spouse and enter into marriage only with their free and full consent.”

The people of India, in the Constitution adopted by them in 1950, took a solemn pledge in its preamble, to provide “justice social and political, liberty of thought and expression, belief, faith and worship, equality of status and of opportunity,” and in Article 51 reiterated the pledge to “foster respect for international law and treaty obligations in the dealings of organized people with one another.”

The Indian State, taking cognizance of circumstances social and political, prevailing in India, took certain legislative measures by enacting various Acts including Hindu Marriage Act 1955, providing the conditions of marriage, the parties to it, the way of entering into it and parting company by divorce, mutual or through court. Dowry prohibition Act 1961, Special Marriage Act 1954, besides Muslim Personal Law ( Shariat ) Application Act 1937, Christian Marriage Act 1872(already existing) and various other enactments numbering more than two dozens, connected with or relating to the status, dignity, vocation, representation and empowerment of women.

Any male of the age of more than 21 and female more than 18, amongst Hindus, Jains, Budhists, Sikhs, not related to each other within 4 degrees and not prohibited by conditions mentioned, have a right to enter into marriage, to live a free and uninterrupted life and take their own decisions. Similarly among Muslims and Christians, marriages are governed by laws and customs, if not abrogated, applicable to them.

Laws, conventions, declarations, treaties apart, social conditions being conservative, tribal instincts being dominating, caste factors being dictative, social economic and political status being incompatible, the youth is being denied the liberties, rights, the status and opportunities granted to them. Any attempt to enter into marriage, defying the above embargoes, is taken as a revolt, disobedience, disrespect and an act of dishonour, an insult to the family, the caste and the relatives. All of them unite to undo the same even if they have to take drastic measures not approved or permitted by law.

The High Courts grant protection passing an order, directing the local police officers to take care of the couple and to provide them security if need be. In spite of this false cases of alleged abduction, rape and intimidation are registered at the instance of the parents or relatives of the girl, against the bride groom, his friends and relatives. There are cases where boys and girls, who had got protection orders from the High Courts have been murdered in full day light, in the presence of so many to preserve the so called family honour and to demonstrate their muscle power.

There are instances where caste panchayats commonly known as ‘khap panchayats’ have in their general assembly meetings declared the marriages continued for years together, between boy and girl of the same village or belonging to the same caste or violating any of the customary norms, have been declared null and void by the ‘khap panchayats’ and the spouses have been ordered to live as brother and sister or to leave the village.

The Punjab and Haryana High Court has constituted a committee to suggest ways and measures which can be passed on to the states concerned for taking further legislatives and administrative measures.

The society even 60 years after independence, after equal years of passing UN Declaration, and adaptation of the Constitution, is in painful throes to accept the rights of men and women to take their own decision, to enter into marriage of their free will and consent. The girl is still a property and is not being allowed to acquire an equal status conceived in the Constitution and cherished by the youth.

The issue is acquiring graver dimensions and needs a national debate on this vital issue of ill termed ‘love marriage’, ‘run away marriage’ which in ancient India was known as Gandharva Marriage.

[Joginder Singh Toor, Advocate, Punjab and Haryana High Court, jogindersingh_toor@yahoo.com Mobile 91-98151-33530]

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