If you are a major, you can even solemnize marriage with a criminal and no fetters can be placed on your choice; indeed, it may appear somewhat paradoxical to the ordinary mind but not to a legal mind. I am not pronouncing this verdict on unqualified grounds rather this phenomenon of the right to make a choice is the result of the peculiar stupendous judicial pronouncements. Recently, the right to choose a partner of one choice, the right to renounce one religion and accept another religion are such constructive, progressive, and liberal concepts that have garnered the substantive attention of large public discourse. But with the attention on the topic of choice of partner and religion, few people have paid attention to the subject matter of “Age of the Majority”.
According to Sec 3(1) of the Indian Majority Act 1875, an individual is said to attain the age of majority when he/she completes his/her 18 years. Article 21, does mandate that no person shall be deprived of his/her liberty but there is no such expression, expressly enumerated under this Article that we are having the liberty to marry a person, involved in criminal activities. Interestingly, it is worth mentioning that there are many rights guaranteed implicitly under Article 21 of the Indian Constitution as it is the mother in recognizing the “Unrecognised liberties”. It is desirable to note that one of such recognitions, was recognizing the significance of an individual who attains the age of majority.
The Hon’ble Supreme Court, while recently hearing the contention advanced by the petitioner in the case of Soni Gerry v. Gerry Douglas (2018) 2 SCC 197 that the daughter is under illegal custody/detention and the Court must free her from illegal restraint. The Hon’ble Court considered this particular fact that the daughter had completed 18 years of age on 19.9.2016, thus she had attained the age of majority. In this regard, the landmark observation that was made by the Court that – ‘when an individual attains the age of majority, it has its own significance. It was also observed that he/she is entitled to make his/her choice. The Hon’ble Supreme Court rejected the contention to pass the writ of habeas corpus and held that she was not under illegal detention.
AGE OF MAJORITY: A DETERMINATE FACTOR IN UPHOLDING THE TWO MAJOR RIGHTS
Recognising the two major rights- the right to marry a person of one’s choice and the right to renounce one religion and accept another religion are appositely valued and also its esteemed status is conferred under Article 21 of the Constitution of India.
Article 16 of the Universal Declaration of Human Rights also lays down the importance of age of majority that – “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.
“India is a free and democratic country and once a person becomes a major he/she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut-off social relation with son or daughter,….”- This was the erudite observation made in the much-celebrated case of Lata Singh v. State of U.P and Another, (2006) 5 SCC 475 that reverberates in the Constitutional guarantee of freedom from the patriarchal tyranny and autocracy.
The notion of liberty was also examined and evaluated in the case of Gian Devi v. Superintendent, Nari Niketan, Delhi (1976) 3 SCC 234, that the girl has attained the age of majority and no restraints can be placed on her choices of the person with whom she is to stay, nor can any restriction be imposed regarding the place where she could stay. Even the Court does not possess the right to determine.
The landmark case of Shafin Jahan v. K.M Ashokan & Ors. AIR 2018 SC 357 cannot be ignored as the same is an important development for the right to choose a partner of one’s choice. It is worth stepping into the facts of the case where a girl namely Hadiya aged 26 years converted herself to Islam and married a Muslim boy namely Shafin Jahan. In this case, the father Ashokan moved a habeas corpus petition before the Hon’ble Kerala High Court alleged that her girl Hadiya was the victim of systematic psychological manipulation and forcefully converted to Islam and in the furtherance of same, her daughter was likely to transport out of the country. The High Court accepted the contentions and allowed him to sustain the writ petition of habeas corpus and annulled the marriage of her with Shafin Jahan. The High Court of Kerala was in the view that even though she has attained the age of majority, she is weak and vulnerable and capable of being exploited in many ways in the circumstances noticed in this instant case. An investigation was also ordered to National Investigation Agency to investigate the ‘education, family background, antecedents and other relevant details of Shafin Jahan and it is fascinating to note that the principal finding of the report was that Shafin Jahan is accused in a criminal case and his Facebook posts show a radical inclination.
When this matter came before the Hon’ble Supreme Court, it was observed that Kerala High Court has failed to recognize the undisputed fact that the girl Hadiya is major, and when an individual attains the age of majority, he/she becomes capable to take her own decision. It was also observed that the annulment order passed by the Kerala High Court is the non-acceptance of her choice that simply transgresses her fundamental rights guaranteed under our Constitution. The Kerala High Court, being a Constitutional Court was not supposed to interfere in this matter as the very interference amounts to a miscarriage of justice and the liberty and dignity of two consenting adults who have been subjected to judicial affront. The Hon’ble Supreme Court also clarified that if there is any criminality in any sphere then NIA may continue its investigation however the validity shall not form the subject matter of the investigation and NIA cannot interfere with the marital status of the two major couples. The appeal was allowed and judgment of the High Court was set aside.
There are other landmark judgments as well but in this overall context, the importance of emphasizing the concept of age of majority and right to make a free choice that the basic elements of a dignified life are also the realization of the significance of the right to choose within the legitimate parameters of the law. The individual’s authority is supreme and no one possesses the right to dictate or limit a person’s choice. Our choices are cherished because they are ours. Indeed, it is not a privilege rather a right of a major and more importantly it is further protected by the Constitution of India which ensures that every person can make the determinations on the matters which is central to the pursuit of happiness and is the intrinsic part of liberty and dignity guaranteed by the Indian Constitution.
Grave Social Symptoms: The Unwarranted Interference and Distressful Silence
It is disheartening to see all the survey carried or report submitted have become veritable documents of the fact that consent of family or the society or the clan is still required to enter into a wedlock. Despite of the fact, no shackles can be placed on the choice of a major, still there is an unwarranted interference of the family or the society or the clan that guillotines the freedom and liberty guaranteed under the Constitution of India and the distressful silence of the protectors of this right succumbs the objective of our Constitutional guarantee of freedom of choice which is the quintessence of the 21st Century.
The 242nd Law Commission Report titled “Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework” demonstrates that how crimes and unwarranted interference against persons marrying have the catastrophic and grave chilling effect on the individual’s right to choose. The report highlights that- “As far as India is concerned, “honour killings” are mostly reported from the States of Haryana, Punjab, Rajasthan and U.P. Bhagalpur in Bihar is also one of the known places for ‘honour killings”. Even some incidents are reported from Delhi and Tamil Nadu. Marriages with members of other castes or the couple leaving the parental home to live together and marry provoke the harmful acts against the couple and immediate family members.”
The Report also underlines the pernicious interference of caste/community assemblies in the guise of ‘Khap Panchayats’ that underscores the liberty and instil the terror by inhuman treatment and inflicting the excessively harsh punishments on those individuals who tried to do exogamous marriage. Unfortunately, these merciless hands haunt the dignity of the individuals in the name of ‘moral vigilantism’ and distressful silence of the society waters them to continue this evil practise.
In 2018, Lok Foundation-Oxford University Survey run by the Centre for Monitoring India Economy (CMIE) reported that just 3 percent of marriages are love marriages. According to the 2011-12 India Human Development Survey, only 13 percent of married women in metro cities knew their husbands prior to marriage. Arranged marriages do not imply forced marriages necessarily however, this fact cannot be ignored that most of the Indian families and communities try to maintain endogamous marriage.
REASON BEHIND SUCH GRAVE SOCIAL SYMPTOMS
It is apt to refer to the case of Bhagwan Dass v. State (NCT of Delhi) (2011) 6 SCC 396 where the Hon’ble Supreme Court stated that many people feel that they are disgraced or dishonoured by the conduct of the young individuals who is related to them or belongs to their caste simply because they marry against their will or wishes or having an affair with someone, and as a result, they take the law into their hands and mentally, physically assault them and inflict the other atrocities which is not lawful in the eyes of law. The 242nd Law Commission Report mentions that the crimes against the young individuals take place as the result of doing exogamous marriage without receiving the family consent. Even the marriages between the young couples outside the gotra often called the violent reaction from the family or clan or society.
Ostensibly, it is clear that that the couples must be freed from the unlawful fetters or hindrances placed by the so-called social guardians who are doing nothing for the benefit for the society rather killing the soul of our Constitution. Hence, it is important to break down the same.
STEPS TAKEN
Undoubtedly, the Courts are playing the active and important role in asserting the choices of majors. For this reason, this particular subject matter becomes of utmost importance. The case of Sakti Vahini v. Union of India (2018) 7 SCC 192 is the evident and glaring example where the Hon’ble Supreme Court directed the police departments and State governments to adopt a robust mechanism to eradicate the crime of ‘Honour Killing’. The Hon’ble Court laid down certain guidelines which was preventive and punitive in nature. Also, the remedial measures were issued. However, if the governments and administrations at the different tiers will not work properly and become silent spectator then the importance of same will languish which is fortunately not in our case.
In order to boost and encourage the inter-caste marriages, the NDA government is providing Rs. 2.5 lakh for every inter-caste marriage with Dalit under the ‘Dr. Ambedkar scheme for social integration through inter-caste marriage’. This financial motivation was started in 2013 but there was a bar that total income must be less than Rs. 5 lakhs so that one can be eligible to receive the one-time monetary incentives of Rs. 2.5 lakhs. Recently, in order to infuse the teachings of BR Ambedkar in the society and to promote the social equity, the Ministry of Social Justice and Empowerment took this bold step and scrapped this bar. This will definitely help in the effective implementation and the administration of this scheme. Many states also have the similar schemes and protective, pre-emptive and corrective measures to curb the menace of crimes against the individuals and to assert their choices. For instance, Bihar government provides the National Saving Certificate amounting to Rs 25,000/- as monetary incentive to women performing inter-caste marriage. The Madhya Pradesh Government has a dedicated cell better known as ‘Crime Against Women Cell” that ensures the safety of couples.
CLOSING OBSERVATIONS
Indeed, The notion of ‘Significance of Age of Majority’ has achieved the landmark growth. Still, in the long growth, the directions issued by the Courts and policy, measures adopted by the Central and State governments has to reach at the grassroot levels and more importantly the society itself has to come forward to stamp out the acts of barbarism against the individuals “WHO HAVE ATTAINED THE AGE OF MAJORITY”.