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With the shadow of “honour killing” appearing to loom over a young intercaste couple, the Gujarat High Court has now provided them with protection from their own families.
The matter involves one Thakur Devrajbhai Ramanbahi who married the daughter of one Vishnubhai Prajapati on May 24, 2021. But as soon as the familes found out about the union, they took the woman away from her husband and brought her before a Panchayat. Here a divorce was announced infront of the community and Ramanbhai was asked to pay permanent alimony of Rs. 1 Lakh. These proceedings took place in presence of caste leader of their village. It was then; Thakur Devrajbhai Ramanbhai sought Court’s help to unite him with his wife. But her parents forced her to submit a statement saying she had been abducted, an allegation that later turned out to be false as she told the court she wanted to live with her husband.
High Court observed, “For the sake of young couple, on noticing the strong reactions of the family, in the presence of the Court also, we deem it appropriate to direct protection to the couple for the period of four weeks. The Superintendent of Police, Mehsana, shall appropriately direct the same and he shall before the end of four weeks shall take a call and decide as to whether there will be requirement of further protection in this case.”
Brief background of the case
The Special Criminal Application Habeas Corpus was filed before the High Court of Gujarat by Thakur Devrajbhai Ramanbhai (Applicant) on March 03, 2022. According to his parents, the divorce had already taken place customarily in the presence of caste leaders during which alimony was also determined.
The woman was then forced to submit an affidavit-in-reply to the Court that was recorded in the Court’s order. She stated that the Applicant “had abducted her with false promises” and that “after her father came to know about their marriage, she realized that they cannot stay together and hence went with her father.” The woman further submitted that the couple “have not stayed together till date and she also chose not to stay with the Applicant in future.” Moreover, she said that “her statement dated March 02, 2022 before the police has not been given by her and it is her decision to be with her family to upkeep the dignity and honour and respect of her family.”
But upon questioning her about the affidavit, the Court discovered that she had signed the said affidavit in fear of the strong reactions of the family which had dithered her from telling the truth.
The Court observed that “she is completely petrified and does not have any courage to resist her family, more particularly, the father and the brother who accompanied her.” The Court also appreciated that she hadn’t disclosed her mind to the family until she was before this Court from where she can join her husband without going back to her parents.
The Caste leader had also assured the Court that no untoward incident will happen.
Precedents relied upon by the Court
The Court while providing protection to the young couples relied upon a Supreme Court Judgment in the case of Laxmibhai Chandaragi B. and Anr. v. State of Karnataka and Ors. reported in (2021) 3 SCC 360, in which it was concluded that to marry of person of one’s choice is an integral part of Article 21.
“Educated younger boys and girls are choosing their life partners which, in turn is a departure from the earlier norms of society where caste and community play a major role……. We are fortified in our view by earlier judicial pronouncements of this Court clearly elucidating that the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock and that their consent has to be piously given primacy. It is in that context it was further observed that the choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. Such a right or choice is not is not expected to succumb to the concept of “class honour” or “group thinking.”
“In Shafin Jahan v. Asokan K M & Ors., this Court noticed that the intimacies of marriage lie within a core zone of privacy, which is inviolable and even matters of faith would have the least effect on them. The right to marry a person of choice was held to be integral Article 21 of the Constitution of India.”
The Court further to warn the Khap Panchayats or other assemblies, that they must not take law in their hands and cannot assume to be the law implementing agencies, relied upon the Supreme Court Judgment in the case of Shakti Vahini vs. Union of India and Ors. reported in (2018) 7 SCC 192. It stated: “The ‘Khap Panchayats’ or such assembly should not take the law into their hands and further cannot assume the character of the law implementing agency, for that authority has not been conferred upon them under any law. Law has to be allowed to sustain by the law enforcement agencies.”
The Court also further noted that, “288 cases of honour killings were reported between 2014 – 2016. According to the data of National Crime Records Bureau (NCRB), 28 honour killing cases were reported in 2014, 192 in 2015 and 68 in the year 2016.”
The Court also considered the various international instruments which considered honour killings as a serious human rights violation. The Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence addresses this issue.
Article 42 reads thus:- “Unacceptable justifications for crimes, including crimes committed in the name of so-called “honour”
1. Parties shall take the necessary legislative or other measures to ensure that, in criminal proceedings initiated following the commission of any of the acts of violence covered by the scope of this Convention, culture, custom, religion, tradition or so-called “honour” shall not be regarded as justification for such acts. This covers, in particular, claims that the victim has transgressed cultural, religious, social or traditional norms or customs of appropriate behaviour.
2. Parties shall take the necessary legislative or other measures to ensure that incitement by any person of a child to commit any of the acts referred to in paragraph 1 shall not diminish the criminal liability of that person for the acts committed.”
The Court further went on exploring the earlier legislations which came into existence to remove social menaces from the society. It stated, “It is worthy to note that certain legislation have come into existence to do away with social menaces like “Sati” and “Dowry”. It is because such legislation are in accord with our Constitution…. There cannot be any assault on human dignity as it has the potentiality to choke the majesty of law. Therefore, we would recommend to the legislature to bring law appositely covering the field of honour killing.”
High Court’s Order
The Division Bench of Justice Sonia Gokani and Mauna Bhatt of the Gujarat High Court on March 15, 2022 passed an Order in the case of the inter-caste marriage where the Court on finding out that the Couple might face danger from her family members provided protection to the Couple for almost four weeks.
The Court for the sake of young couple had directed the Superintendent of Police, Mehsana, to provide protection to the young couple for the period of four weeks and he shall also take a call before the end of four weeks on whether there is requirement of further protection to the couple or not.
The Court also directed her parents to handover all the basic belongings of their daughter, her degree certificate and other belongings, to the lady officer. The Court also directed the police officers to escort the couple safely from the Court premises and also said, “Any attempt on the part of any person to have the law in their hands shall be sternly dealt with by the police.”
The Court while disposing the case said, “Any difficulties if noticed, the same shall be brought to the notice of Superintendent of Police of the District who shall ensure due compliance of the order in its true spirit.”
The Order may be read here:
CJP fights for right to love
While the above case involved an intercaste couple, this practice of tearing apart couples from different backgrounds is also common among families of interfaith couples, and has been given a communal colour using terms like “Love Jihad”. CJP has previously worked towards creating greater awareness about the fake narrative of “Love Jihad”.
In December 2020, Citizens for Justice and Peace filed a Writ Petition had challenged the Constitutional validity of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 and the Uttarakhand Freedom of Religion Act, 2018 before Supreme Court of India. In January 2021, a three-judge Bench headed by Chief Justice S.A Bobde and including Justices V Ramasubramanian and AS Bopanna heard the petitions, and issued notices to UP and Uttarakhand.
On an application for amending the original Writ Petition in 2021, it was then amended to include the Madhya Pradesh Freedom of Religion Ordinance, 2020 and Himachal Pradesh Freedom of Religion Act, 2019. The Petition challenged all these four laws on the grounds that they are discriminatory, anti-women and contravene the right to privacy and personal liberty of citizens by criminalizing interfaith unions.
The CJP’s Writ Petition critically examines the impugned laws on the grounds of:
- Right to Personal Liberty and Autonomy
- Right to Freedom of Choice of Adults
- Right to Privacy
- Right to Conscience
- Right against Discrimination
- Constitutional Obligations and Powers of Governors
- Secularism
- Bhimrao Ramji Ambedkar’s ideology
- State incentives for inter faith marriages
- Law Commission Reports
- International Law
- Evolution and Interpretation of Rights in Constitutional Courts
The Petition states that Article 25 of the Constitution of India guarantees the right of an individual to convert oneself to another religion. The Acts impinge upon this right by imposing unreasonable and discriminatory restrictions and hence are unconstitutional.
The Petition also states, “The idea of a particular individual converting for the sake of marriage on his/her own will is a matter of Personal Choice, Autonomy, Privacy, Conscience –all basic and Fundamental Rights under Articles 14, 15,16, 19, 21 and 25 of the Constitution, and cannot be merely related to ‘disruption of public order, as enumerated under Article 25 of the Constitution’.”
The Petition has raised issues of privacy, extra-Constitutional powers to police and non-state actors, violation of the non-negotiable tenets of secularism, equality and non-discrimination. CJP has also argued that such laws are premised on “conspiracy theories” and assume that all conversions are being illegally forced upon individuals who may have attained the age of majority, throttling their personal liberty guaranteed under Article 21 of the Constitution.
Related:
CJP moves SC against “Love Jihad” laws
CJP’s Love Jihad Petition: SC issues notice to UP and Uttarakhand
CJP’s Love Jihad amendment petition allowed by SC
CJP moves SC to include MP, HP in its ‘Love Jihad’ petition
Love Azaad: CJP’s map tracking hate crimes against those who dare to love