Do Indian women have a right to choose whether, when and whom to marry?


  1. A.   Analysing the problem in the indian context

Cases of child marriage, which are widespread in India, illustrate the denial of the right to chose ‘when to marry’ given the children are not capable of giving their consent freely. Similarly, the practice of forced marriage implicates denial of both the right to choose ‘when’ and ‘if’ to marry.  Cases where an individual chooses whom to marry, but is prevented from doing so in the face of family or community pressures, involve denial of the right to choose ‘whom’ to marry.

  1. B.    Protection under International Law : Choice in Marriage

In the past few years, the issue of the right to marry as a fundamental human right has increasingly gained attention at both international and national level. The practice of forced marriage, that is any marriage conducted without the free and full consent of both parties, has been explicitly recognised as a human rights abuse.[1] The Universal Declaration of Human Rights under Article 16 explicitly recognises that men and women have equal rights as to marriage, during marriage and at its dissolution. Article 16 (2) states: “Marriage shall be entered into only with the free and full consent of the intending spouses.” This provision could be interpreted to mean consent regarding all the three aspects of marriage, ie whether, when and whom to marry.

In addition, several other internationally recognised rights can be invoked in support of this explicit right. For example, the right to personal liberty and security, including freedom from arbitrary detention, the right to life, the right to bodily integrity, including freedom from gender based violence; the prohibitions on slavery or practices similar to slavery; the right to access justice, the right to equality before the law and equal protection of the law; the right to an effective remedy and the right to freedom from gender based discrimination have been recognized by Universal Declaration of Human Rights,[2] the International Covenant on Civil and Political Rights (ICCPR)[3], the International Covenant on Economic, Social and Cultural Rights(ICESCR)[4], the Convention on the Elimination of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the Supplementary Convention on Slavery, the Slave Trade and Institutions and Practices Similar to Slavery. [5]

C. Indian Legal Framework on choice to marry –

At a national level, while the Constitution of India does not recognise the right to marry explicitly, it does guarantee a number of fundamental rights which underpin it, including the right to life,[6] the right to personal liberty[7], the right to equality and the equal protection of the law[8] and the right to freedom of movement.[9] Cases concerning the right to marry – for example, cases of child marriage, early marriage, forced marriage, or interference with the right to marry – may result in the violation of a number of fundamental rights guaranteed by the Constitution. The enforcement of such rights by the Courts is unequivocally secured under Art. 32 of the Indian Constitution.[10] A number of different legal remedies are available in order to redress this right: these include constitutional remedies, such as writs of habeas corpus, criminal procedures such as prosecutions for abduction for the purpose of forced marriage or false imprisonment and civil remedies such as judicial divorces or decree of annulment. In addition, existing laws address the issue of child marriage, by establishing minimum ages of marriage as 21 for men and 18 for women, and penalise the contracting of marriages between persons under these ages.[11]

The Special Marriage Act, 1954 provides an opportunity for individuals to marry of their own choice across communities without sacrificing their faith or belief. No rites or ceremonies are required but the parties have to serve a thirty-day notice to the Marriage Registrar of the district in which either party has resided for a period of at least thirty days immediately preceding the notice. The marriage can be solemnised only if the notice has not been objected to by anyone. More often than not, the parents of the parties object to the marriage without any sufficient cause and the police convene with the parents in ensuring that the parties don’t get married. In this scenario, even though the parties are of legally required age and wish to solemnise marriage with full consent, the family and community pressure forces them to act otherwise. The growing number of honour killings is a living testimony of this.

Also, if a party has entered into marriage under duress or by force, then they have an option to dissolve the same. [12]  To this extent, it can be argued that parties’ freedom of whether, when and whom to marry has been recognised in law. However, the widespread practice of its violation highlights the lacunae in law and the need for an explicit right to marry under the Indian constitution or through a separate legislation.

D. Evaluation of available remedies

On the face of it, existing legal remedies seem sufficient to meet India’s international obligations to provide effective redress against forced marriage. However, there remain significant limitations within the existing legal framework which bear some scrutiny.

First, the continued application of personal laws, to govern rights within the family, including in relation to marriage, not only diminishes the impact of laws criminalising child marriage and forced marriage, but also contributes to their abuse and to the violation of rights. So, for example the recognition of the validity of child marriages under personal laws ensures their continuation, despite laws criminalising their solemnization.

Secondly, the couples choosing to marry under the Special Marriage Act, 1954, are compelled to undergo police investigations, and may face threats from the family or community, as a result of procedures requiring public scrutiny of their applications to marry, and notification of their intentions.[13]

Similarly where couples have married of their own choice, the parents of either party may file false charges of kidnapping or rape against the man, resulting in his facing arrest and criminal prosecution, and the woman being kept in an official shelter home in the name of protective custody. Thus, though legally parents’ consent is not required to get married, the lack of it creates several complicated issues. The main reason is the cultural practice where women are considered the ‘honour’ of the family and cannot marry without the consent of the parents.

The lack of implementation, rather than any existing lacunae in the law, is the major obstacle to effective redress in forced marriage cases. There is no data available on the number of women who are able to access civil remedies in cases of forced marriage. Further, women’s lack of awareness, and their limited capacity to negotiate their rights, frustrates their right to seek a divorce which is a lengthy, expensive and uncertain process. The lack of recourse to law is in large measure, an obstacle to women’s access to justice.

In many cases, the law is not implemented due to the gender bias or financial corruption within, or the incapacity of law enforcement machinery. Thus the police may refuse to accept complaints regarding domestic violence, in particular forced marriage, conduct gender-insensitive questioning of victims, or collude with the family to file false charges in cases where women have exercised their choice to marry. They may also view such matters as “family matters” and therefore as an appropriate subject for mediation rather than police intervention. [14]

The prevailing gender bias within the judiciary also acts as an obstacle to redress. Although the judiciary has played a critical role in providing effective remedies in such cases, particularly in the higher courts, stereotypical attitudes regarding women are commonly found among all actors within the justice system. Thus judges continue to direct that women be placed in protective custody without obtaining their prior consent, even where they have clearly stated that they have married of their own volition.

The failure of key actors within the criminal justice system to view forced marriage as a crime, let alone a violation of fundamental human rights and their consequent indifference to victims in such cases, ensure that the system is unable to deliver justice.

E. Why is there such deafening silence on the question of right to choice of marriage ? 

The issue of consent to marriage has not been of central concern to the women’s or human rights movements. One reason may be the normative nature of marriage – the understanding of marriage as an inevitable option for women is such that it is not possible to think beyond, or question this frame. Having refused to acquiesce, if the woman exercises her own choice with regard to the issue of whom to marry, and this decision is not accepted by either her family or her community, they may respond in several ways. They may accept the situation; if they don’t they may pressurise the woman through emotional pressure, fear of or actual social sanction, or in more extreme cases threats of or actual violence.[15]

F. Conclusion-

A woman cannot be treated as ‘Property’ for she is a human being and civilization has progressed at least thus far where we need to differentiate between ‘objects’ and ‘human beings’. The fact remains that by denying her the right to choose to marry along with denial of several other concomitant rights, we deny her the right to be ‘human’. It could be said that the Fundamental Rights guaranteed by the Constitution of India clearly advocate and protect dignity of women and therefore an inquiry into the question as to whether she is a property seems abhorrent. However, there definitely exists a gap between the prescription of law and the practice in the society. Furthermore, the existing legal remedies are gravely inadequate or are not implemented. Therefore, though there is a legal regime for protecting women’s right to choose – whether, when and whom to marry, it is a rather weak protection which in turn is substantiated by the fact that women continue to be sacrificed at the altar of ‘family honour’. Therefore there is a need –

First, to enact a separate law for protecting women’s right to choose to marry.

Secondly, to ensure better implementation of the existing laws, and to undo the loopholes in the available remedies as pointed in this paper.

Thirdly, to define the legal concepts as per the need of the modern times. Analysing a concept as per the definition given in a different time may lead us to a wrong conception of that concept.

 


[1] See generally Davidson Scott, Human Rights, Open University Press, 1993; Steiner Henry J, Alston Philip, International Human Rights in Context, Clarendon; Lauterpact, International Law and Human Rights, Robinson, 1950.

[2] See Art. 1, 3 and 9 of Universal Declaration of Human Rights, 1948.

[3] See Art. 3 of International Covenant on Civil and Political Rights, 1966.

[4] See Art. 3 of International Covenant on Economic, Social and Cultural Rights, 1966.

[5] http://www.un.org/law – UN site on international law generally with links to other relevant sites. See also Brownlie, Basic Documents in International Law, Oxford Univrsity Press, edn.5th.

[6] Refer Art. 21 of the Constitution of India, 1950.

[7] Ibid.

[8] Refer Art. 14 of the Constitution of India, 1950.

[9] Refer Art. 19 (d) of the Constitution of India, 1950.

[10] Refer Art. 32 of the Constitution.

[11] See Sec. 18 of Child Marriage Restraint Act, 1929.

[12] Dissolution of Muslim Marriages Act, 1939; Hindu Marriage Act, 1956.

[13] See S. 5-9 of Special Marriage Act, 1954.

[14]See also Lucinda M. Finley, “Breaking Women’s Silence in law : The Dilemma of the Gendered Nature of Legal Reasoning” , 1989, 64 Notre Dame law Rev. 886.

[15] See generally Andre Beteille, “The Reproduction of Inequality : Occuypation, caste and family”, in Patricia Uberoi, ed., Family Kinship and Marriage in India, Oxford University Press, Delhi, p.435-51.

 

Avani Bansal, University of Oxford

Tanvi Bansal, ILS Law College, Pune


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