RIGHT TO CHOOSE LIFE PARTNER

For this Christmas holiday previous year, I went to the hills with my family  for a short stay.It was wonderful experience with calm and serene environment, cold winds, walking though the clouds and glittering city below after dark. That’s the beauty of Darjeeling and Himalayan ranges!  Honestly I feel blessed to be living in such a beautiful from where it only takes an hour ride to the hills.So we stayed at a bungalow away from the populous main town of Darjeeling. So we had an old caretaker and his daughter living around us who would run errands and manage our safe and comfortable stay. The aforementioned daughter soon became my good friend. Puja, was a vibrant hardworking , funny and studious girl.

She was in her first year and almost my age back then Because it is common for children in hills to delay starting their education and schooling.However, she had a dream of growing up as a doctor and live in big cities and work in big hospitals have her own car and own residence , which I believe she is very much capable of  achieving yet she had her own set of devils to conquer. She was being forced to marry an unknown man of whom she knows nothing , simply because the man was wealthier and her father thinks of him to be a good match for his daughter. But that would cost Puja giving up her dreams of an life . She did have frequent arguments with her father as she did not want to marry him. She wishes to have a say in choosing the person she would marry and live with for the rest of her live. Fair demand of her I believe.

Legally speaking , forcing to marry someone you do not want is a scenario which often develops into situations like honour killing and suicide. Honour killings are nothing but murders committed by family members who justify their action by proclaiming that a family member (most probably a woman) has brought disgrace upon them. The most recent statistics available to us of the last three years showed that more than 300 people were killed in the name of protecting the honour of the family, of which 71 such murders happened in 2016.Hence, it is indispensible to recognize right to marry a partner  of choice  under the right to life of Article 21 of the Indian Constitution as a quint essential social concept as is  marriageable age of girls is 18 years. Which again , has been recently  amended as 21 years for both men and women.In a country where even an unwelcome touching of feet is  considered as outraging modesty by courts in Parmeshwar Dhage v. State of Maharashtra, it was imperative to label forced marriages as illegal.

The right to marriage is also stated under Human Rights Charter within the meaning of the right to start a family.The right to marry is a universal right and it is available to everyone irrespective of their gender.

Every person has the right to choose his life partner and this is a fundamental right. But societal factors such as family pressure, the prevalence of honor killings, life threats, and the dire consequences if you don’t accept a desirable person are so ingrained in our culture that it makes it absolutely impossible to choose a life partner on your own. Once they reach the age of majority for marriage required under Section 5(iii) of the Hindu Marriage Act 1955, no one may legally compel them to marry against their will. Thus, they can formalize their marriage without the consent or permission of their parents. .Hindu Marriage Law recognizes inter-caste marriage. Therefore, they have the right to formalize their marriage under HMA, but they belong to different Hindu community. A marriage between two Hindus, regardless of their caste or community, is valid under section 5 of the HMA. So any person facing pressure for the unwanted marriage alliance can fall back on this two-way remedy. The first is the fundamental right to choose. When they reach the age of majority, they become life partners. Second, they can seek protection from the court in case of aggression or serious threat.

1.The right to choose a life partner is a fundamental right.

Recently, the Supreme Court ruled that the right to choose a partner is a fundamental right. The Court held that the right to marry one’s own choice is a fundamental right under Articles 21, 19(1)(a) and 14 of the Constitution of India. Freedom of expression and expression, combined with life and personal freedom, reveal the right to choose each other as life partners. Once a fundamental right exists in a person, no one can nullify that right by basing it on any philosophical, moral or social basis. [ Shakti Vahini v. Union of India, (2018) 7 SCC 192] The Supreme Court has expressed its concern over the growing threat and violence to inter-caste marriage. The court concluded that:

However, there are disturbing reports from various parts of the country that young men and women in inter-caste marriages are being threatened or subjected to violence. In our opinion, such acts of violence or threats or harassment are completely illegal and those who commit them should be severely punished. This is a free and democratic country, and once a person becomes a major, he can marry whoever he wants. If the parents of the boy or girl do not approve of this type of inter-caste or inter-religious marriage, they accept it as the maximum. What they can do is cut off social relations with the son or daughter, but may not make threats or initiate or incite acts of violence and harass the person who enters into such inter-caste or inter-religious marriage.[Lata Singh v. State of UP, (2006) 5 SCC 475;]

2.Get a protection order from the High Court u/a 227

The court directs the local administration to provide adequate security in the protection order. After that, according to the verdict of Lata Singh case, marriage ceremonies can be held under police protection. The Supreme Court instructed as follows:

“We therefore request that administration/police authorities across the country ensure that if any boy or girl who is a major has an inter-caste or inter-religious marriage with a woman or man who is a major, the couple does so. a person who has not been harassed by anyone, has not been subjected to threats or acts of violence, or who makes such threats or harassment or commits acts of violence by himself or by provocation, is prosecuted by the police by starting criminal proceedings against these persons and a criminal complaint is also filed. Strict action is taken against these persons as prescribed by law.”[ Lata Singh vs.UP State, (2006) 5 SCC 475]

One may also file a writ petition before the High Court under Article 226 of the constitution for getting a protection order.The court can pass a protection order if the petitioner is receiving apparent threats in the exercise of his legal right. Right to choose a life partner is a fundamental right so we can logically move a writ petition for the implementation of his right.

Some Recent Progressive Judgements in this Regard

Salamat Ansari vs. State of UP

Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty. The plea before the Court was concerning a Muslim man & Hindu woman who were living together peacefully as husband & wife for over a year, & the conversion in question, was voluntary and not forced.

The Court said that “We do not see Priyanka Kharwar & Salamat as Hindu & Muslim, rather as two grown-up individuals who out of their own free will & choice are living together peacefully & happily over a year.” The HC further observed that the intervention of the Courts is an infringement to Article 21 of the Constitution of India which includes right to freedom of choice & the right to live with dignity.

An FIR was lodged by the woman’s father alleging offences under Sections 363, 366, 352 & 506 of IPC & Section 7 & 8 of the POSCO Act.This writ petition has been filed, seeking a writ of mandamus, directing the respondent concerned, not to arrest the petitioners, with a further prayer for quashing the impugned F.I.R. dated 25.08.2019 registered as Case Crime No. 0199 of 2019, under Sections 363, 366, 352, 506 I.P.C. and Section 7/8 POCSO Act, Police Station- Vishnupura, District Kushi Nagar

The said that they do not see Priyanka Kharwar and Salamat as Hindu and Muslim, rather as two grown up individuals who out of their own free will and choice are living together peacefully and happily over a year. The Courts and the Constitutional Courts in particular are enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution of India. Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty. Interference in a personal relationship, would constitute a serious encroachment into the right to freedom of choice of the two individuals.If the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even State can have objection to relationship of two major individuals who out of their own free will are living together. Decision of an individual who is of the age of majority, to live with an individual of his/her choice is strictly a right of an individual and when this right is infringed it would constitute breach of his/her fundamental right to life and personal liberty as it includes right to freedom of choice, to choose a partner and right to live with dignity as enshrined in Article 21 of the Constitution of India.An individual on attaining majority is statutorily conferred a right to choose a partner, which if denied would not only affect his/her human right but also his/her right to life and personal liberty, guaranteed under Article 21 of the Constitution of India.

It was held in Shakti Vahini case that even if a marriage is prohibited in law, same shall be taken note of only when the courts are approached for recognition of such marriage, which finds further corroboration in the case of Nanda Kumar vs. State of Kerala, (2018) 16 SCC 602 which after relying upon Shafin Jahan held that on attaining majority an individual is entitled to make his/her choice which is pivotal and cannot be infringed by anyone.The Apex Court in Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368, decided on April 9, 2018, very rightly cited the case law of Gian Devi v Superintendent, Nari Niketan, Delhi 31, a three Judge Bench observed that where an individual is over eighteen years of age, no fetters could be placed on her choice on where to reside or about the person with whom she could stay. Also, in a more recent case of a three Judge Bench in Soni Gerry v. Gerry Douglas it is rightly stated that it needs no special emphasis to state that attaining the age of majority in an individual’s life has its own significance. She/He is entitled to make her/his choice. The courts cannot, as long as the choice remains, assume the role of parens patriae.

The daughter is entitled to enjoy her freedom as the law permits and the court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father. We say so without any reservation. Both the courts and the parents as also the relatives of two consenting adults must always keep this in mind while confronted with such cases! This will certainly be in the mutual interest of both the consenting adults also as also their families instead of resorting to violence or fighting court battles.Right to choose life partner is a recognized fundamental right guaranteed by constitution itself and consent of family,community,clan are not required for marriage between two adults.In essence, it is rightly held in para 11 while citing the case of KS Puttaswamy vs Union of India (2017) 10 SCC 1 that, Right to choose a partner irrespective of caste, creed or religion, is inherited under right to life and personal liberty, an integral part of the Fundamental Right under Article 21 of the Constitution of India.

Shifa Hasan and Another Vs State of U.P. and Others  WRIT – C No. – 16336 of 2021

This judgement by Hon’ble Manoj Kumar Gupta &Hon’ble Deepak involved an interfaith couple was being harassed by the daughter’s father on the basis of their religion. The court noted that both of them were majors. It was stated that the parents couldn’t oppose their relation on any basis. Rejecting the boy on the basis of his religion was incorrect since they were adults and they were liable for their own choices of partner irrespective of their religions.The background of the case is that a 24-year-old male, with his 19-year-old female partner, Shifa Hasan were living together out of love and affection. The father of the girl, was however unhappy with this relation because of the religion of the boy. They therefore filed an immediate petition asking for the protection of their life and their freedom. Shifa had then already filed an application for conversion from Muslim to Hindu. The district magistrate had also asked for the confirmation of ages of both of them to make sure they were not minors.

Allahabad High Court held that adults had the right to choose their life partner regardless of their religion, The interfaith couple, residing in Gorakhpur, was granted protection from the harassment. The court further stated while disposing the petition that it must be taken care that the applicants are not harassed by the father or by another person within the context of their relationship.This case was relevant as  it clarifies significant concepts and principles for good.It cannot be denied that two adults have the right to choose their spouse regardless of their religion. The request being a joint request of the two individuals who declare themselves in love and were majors,were considered competent to decide for their own future and therefore, in the legal opinion, no one, not even their parents, could oppose their relationship.

CONCLUSION

All this discussion brings us to one pertinent question.Whether women in India actually have a freedom to choose for themselves in terms of their own big life decisions? Or does the family, extended family, relatives, neighbour and your society members decide what is best for you and you can only agree or not with them?

Instances like forced marriage, marriage on death threats or compulsion and honour killing are clear violation of women’s fundamental right to life and right to choice- right to freely choose when, with whom, and whether or not to enter into, remain in, or exit an intimate or marital relationship. These rights are enshrined under national and international provisions, and even many judgments have been passed by the Supreme Court & High Courts of India to safeguard those rights.It is only a matter of time till we all acquaint and educate ourselves of these rights.And as for Puja, she convinced her father against the marriage and is all set to become a doctor.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at secondinnings.hr@gmail.com

In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.

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