“States have schemes promoting intercaste and interfaith marriages on one hand, but create legal barriers to prevent them. In the process, this move undermines the agency of women,” Kothari said.
The Gujarat government’s move to mandate consent of parents for registration of a marriage flies in the face of constitutional rights of individuals that are routinely safeguarded by several court rulings.
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Agency and personal autonomy are key facets of Article 21 of the Constitution which guarantees the protection of life and personal liberty. This right has been interpreted by the Supreme Court to include the freedom to choose a partner without external interference.
High Courts also routinely protect couples seeking police protection from their families. On February 16, the Gujarat High Court allowed a 16-year-old girl, who refused to return to her parents, to stay in government care. The minor’s parents had objected to her relationship with a boy of her choice, although the two were willing to wait to “attain marriageable age”.
Speaking to The Indian Express, Senior Advocate Jayna Kothari said requiring parental consent is essentially an attempt to curb interfaith and intercaste marriages.
“States have schemes promoting intercaste and interfaith marriages on one hand, but create legal barriers to prevent them. In the process, this move undermines the agency of women,” Kothari said.
In a 2021 ruling in Laxmibai Chandaragi B versus State of Karnataka, the Supreme Court reiterated that the consent of “the family or the community or the clan” is not necessary for adults to marry.
“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 expected to succumb to the concept of ‘class honour’ or ‘group thinking’,” it had said. In this case, the top court had also directed police authorities to lay down guidelines and implement training programmes to train police personnel on socially sensitive cases which may impact such as a person’s right to marry.
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In 2018, the Supreme Court, in Shafi Jahan v KM Ashokan, in a case of interfaith marriage that was challenged by the woman’s parents, had upheld an individual’s right to marry a person of one’s own choice as well as the right to choose a religion. In doing so, the Court overruled a Kerala High Court verdict which had invoked its parens patriae jurisdiction (a legal doctrine allowing the state to play the guardian for individuals unable to care for themselves) and annulled their marriage, noting that “a girl aged 24 years is weak and vulnerable and capable of being exploited in many ways” and it was the duty of the Court to ensure her safety.
In a landmark 2006 ruling in Lata Singh v State of Uttar Pradesh, the Supreme Court recognised the family as a site of violence and protected inter-caste marriages.
The Delhi High Court in 2009 and the Allahabad High Court in 2021 had even struck down the mandatory 30-day notice of a couple’s intention to marry under the Special Marriage Act, citing an invasion of privacy, even from family.
“Such publication of notice and further procedure would not be violative of their fundamental rights as they adopt the same of their free will,” the Allahabad High Court had said.
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