Muskan Suhag
I. Introduction
In Indian communities, where inter-caste marriages lead to honour killings, and inter-religious marriages invite even greater problems (like the concept of love jihad), there exist several barriers to marrying someone of one’s choice. Moreover, as the Indian discourse is currently rife with discussions and debates over the legalization of same-sex marriages, one of the important points raised is the fundamental right to choose a life partner of one’s choice. In such a context, the proposal of mandating parental consent in the registration of love marriages, which exposes another imposition of unnecessary restrictions on this right, becomes ever more relevant.
Members of the Gujarat Legislative Assembly have recently demanded an amendment to the Registration of Marriages Act.[1] They aim to make the consent of parents a mandatory provision for the registration of love marriages, adding to the existing conservative barriers to the right to freedom of choice[2] in marriages.[3] The MLAs cited vague reasons like an increase in ‘social unrest’ and incidences of crimes in the state, due to marriages solemnized without parental consent. They further intend to add provisions like ensuring that such marriages be registered in the same taluka where the man or woman lives.[4] However, these reasons seem like a cover-up for reinstating the customary practice of marriage arranged by families or at the very least approved by the families. This in turn reinforces that their children cannot marry someone belonging to another religion or caste (since a majority of parents and relatives wouldn’t ever allow them to), gravely curbing the fundamental right to choose a partner of choice.[5] Further, instead of being beneficial for the common populace, this demand would reduce the efficacy of the Act and make the process more cumbersome, as can be understood from the example of Tamil Nadu, which had implemented a similar policy and had to subsequently roll it back.[6]
The Hon’ble Supreme Court has already upheld the freedom of choice in marriage, stating that neither society nor parents have the power to interfere when free consenting adults decide to marry each other.[7] This holds significance in the hotly debated same-sex marriage discourse as well. Further, the proposal seems to have missed out on the potential adverse effects if it materializes. The issues pertaining to love marriages, like love jihad and honour killings, are indeed significant and are rightly being extensively deliberated upon amongst lawmakers. However, mandating parental consent might not serve the legislators’ purposes.
Accordingly, this piece delves into the problems associated with the proposal of the assembly legislators to contend that the move can potentially have adverse effects in social and legal contexts simultaneously. In a legal context, it would lead to a serious impairment of the fundamental right to freedom of choice.[8] Socially too, it might do more harm than good in a largely conservative society where a large number of parents do not consent to love marriages, reducing couples’ chances of formalizing their relationship, and where the concept of live-in relationships is also not yet well-established and accepted.
To begin with, this piece rebuts two main arguments put forth by the legislators i.e., that the proposal will bring down the crime rate substantially and that it is required to save women from allurements and kidnappings. The points put forth are that the proposal might not be able to fulfil either of the two targets as it is not an apt measure to rein in the said crime rate and that there already exist sufficient safeguards for women, making this proposal unnecessary.
Next, it discusses how the move appears to have a political undercurrent — seemingly an appeasement tactic for the affluent Patidar community (they had originally put forth this demand)[9] which despises love marriages without parental consent, owing to the ‘social problems’ created by such marriages. Then it highlights the fact that the Indian Judiciary has upheld the right to choose one’s life partner as a fundamental right and that parental consent is not necessary,[10] making the proposed mandate an infringement of this fundamental right.
Fourthly, the case study of Tamil Nadu has been presented, where parental consent was indirectly enforced but had to be rolled back a year later,[11] to demonstrate that such a mandate reduces the efficacy of the law instead of improving it. This is because it deprives the couples willing to marry without parental consent of their prerogative to formalise their relationship. It might also direct them towards the option of being in a live-in relationship which does not enjoy the same status as that of a formalized marriage and is less viable as an option. In conclusion, it becomes ever more important to recognize the adverse impact of such unnecessary restrictions on individual liberties such as the right to choose a partner amidst the contemporary debates over same-sex marriages and love jihad.
II. Problems with the Move
The demand in question was made on March 17, 2023, during the Assembly debate on the budgetary allocations of the Legal Department. “Marriages solemnised without the consent of parents add to the crime rate in the State. If such marriages are registered with the consent of parents, the crime rate would see a drop of 50%,” said Fatesinh Chauhan, an MLA from Kalol and a prominent face of the Vishwa Hindu Parishad.[12]
However, the legislator seems to have committed the fallacy of weak induction. There is no concrete basis to relate the overall crime rate in a state to the peaceful registration of marriages or to believe that with parental consent, the crime rate would fall by as much as 50%. Further, even if one does consider it to be true that marriages without consent lead to crimes, these would comprise crimes like honour killings, wherein the ones marrying without consent are not at fault to begin with. They are merely exercising their fundamental right to choose their partner. It is upon society to make conditions conducive enough for adults to exercise rights as basic as this, devoid of any violence against them.
It is imperative for society to open up to a more progressive attitude, appreciating individual liberties instead of enforcing age-old customs and traditions which hamper individual rights and liberties. This is not to say that traditions must be side-tracked but that they must be more open to accepting ideas which allow individuals to exercise their individual choices and rights better. The idea of mandating parental consent is rooted in the age-old tradition of marriages being arranged by parents and relatives, with little autonomy given to even adult children to choose their life partner. Thus, the idea of mandating parental consent fails to appreciate the liberties an adult has a right to, including the freedom to choose one’s life partner. Furthermore, the very reason adults are forced to elope from their homes is due to the fear of honour killings, and/or because their families would not allow them to marry the person of their choice. Therefore, the proposal seems a misfit to deal with such ‘crimes,’ which might be better reined in via the improvement in administrative controls.
The MLA further posited, “There are several cases in Kaalol where girls have been lured by anti-socials and kidnapped. To save them, such an amendment is necessary.”[13] One of the basic tenets of marriage is consent. If an adult woman consents to marry an individual of her own volition, it cannot be called allurement or kidnapping. If she doesn’t consent, there are laws to protect her from possible dangers, be it physical like abduction (Section 362, IPC)[14] and sexual assault (Section 354 A, IPC)[15] or cybercrimes like stalking (Section 354 D, IPC).[16] Every woman is entitled to free legal aid[17] and can avail of several services provided by the government, including women’s helplines or approaching the nearest women’s police stations created for enhanced safety of the female populace. Further, steps aimed at empowering women physically through self-defence training as well as socially, through education, better employment opportunities and female-oriented law-making (by better representation in parliament and other legislative bodies) would be better-suited initiatives to ensure the safety of women.
Mandatorily requiring parental consent is unwarranted and would be equivalent to undermining the freedom of an adult woman to choose her life partner. Furthermore, the demand that the marriage should be registered in the same taluka as the couple resides would only make the registration process cumbersome and difficult for those couples who elope to marry due to the fear of honour killings. This would in turn reinforce casteism and conservatism. Thus, the proposal seems to bring no particular benefit, and on the contrary, strikes at the heart of the right to freedom of choice.
Further, it is not surprising to note otherwise feuding parties (the BJP and Congress) coming together for such a move. It would appease the strong Patidar community (a major vote bank in Gujarat politics), which opposes the elopement of couples and wishes to reinforce the age-old traditions of arranged marriages or at least, parental consent, to prevent “social unrest.” The community demanded last year that the signature of at least one parent be taken in registration, in case a girl of the community enters into wedlock with a man of her choice.[18] Mr R.P. Patel, president of Vishv Umiya Dham, a prominent Patidar organisation, and the convener of the Patidar Organisation Co-ordination Committee contended that sometimes girls are lured into marriages because of the property owned by their parents; these marriages often do not last long and create ‘social problems’.
However, there is no definite explanation as to what exact social problems Mr Patel was referring to. After the 2005 amendment to Section 6 of the Hindu Succession Act of 1956,[19] every daughter has the right over the ancestral property of her father, no matter whether she is married or not. Hence, it is possible that their concern is rooted in casteism and a fear that women married to men of other castes would claim their share of inherited property.[20] This is seemingly unacceptable to them and must be curbed because it can cause ‘social problems’ in the community. This signifies the conservative approach of the community and accordingly finds support from politicians, for whom the Patidar community is a major vote bank.
III. Choosing a Partner - A Fundamental Right; Parental Consent Unnecessary
In keeping with the spirit of the fundamental rights provided in the Indian Constitution, the Indian Judiciary has made it very clear that the rights to freedom under Article 19[21] and the right to life and liberty under Article 21[22] include the right to choose one’s life partner and that parental consent is not necessary. In the case of Shakti Vahini v Respondent: Union of India (UOI) and Ors., the Hon’ble Supreme Court notably held, “…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. Their consent has to be piously given primacy…”[23]
Also, in the case of Salamat Ansari v State of U. P., the Allahabad High Court underpinned the fact that all adults have the freedom to choose their life partner, which is an intrinsic part of the right to life and liberty of every individual. The Hon’ble Court posited that neither any individual nor the society/state can object to the relationship of two individuals who live together, of their own volition.[24] Thus, it can be inferred that the question of mandating parental consent does not arise. Going further, the Hon’ble Bench stated: "...the 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 a 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..."
Regarding the demand of the Patidars for parental consent to be made necessary for women of the community to marry a man of their own choice, the case of Shafin Jahan v Asokan K.M.[25] holds much relevance. In this case, Justice of India D.Y. Chandrachud had opined that "…The superior courts, when they exercise their jurisdiction parens patriae, do so in the case of persons who are incapable of asserting free will such as minors or persons of unsound mind. The exercise of that jurisdiction should not transgress into the area of determining the suitability of partners to a marital tie. That decision rests exclusively with the individuals themselves. Neither the state nor society can intrude into that domain. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state…"
IV. Tamil Nadu: A Case Study
One of the states in India where a similar idea of mandatory parental consent was materialized recently in a slightly different way is Tamil Nadu. In 2017, the Tamil Nadu government made identity documents of parents mandatory to register a marriage.[26] The authorities pointed to several complications created due to spelling mistakes in the names of the parents on the registration certificates as the primary reason behind the move.[27] Such a mandate indirectly made the consent of parents a compulsory provision for the registration of love marriages. This is because the authorities on the ground would repeatedly insist on the personal appearance of parents. It made it tougher for couples who did not have parental consent, thus creating an unnecessary burden on the couples willing to register their marriage.[28] It further deprived consenting adults of their right to lend a formal character to their wedding. Consequently, the government faced opposition due to the unwarranted restriction imposed, and a year later, the Tamil Nadu government rolled it back.[29]
Hence, the case of Tamil Nadu brings out the problems faced by couples who exercise their freedom to choose their life partner without parental consent. The amendment only reduced the efficacy of the law instead of improving it. This is because it essentially disallows couples who marry without familial consent from formally registering their marriages, excluding them from the law’s ambit and the protection provided therein. Though live-in relationships have been declared legal and “a relationship in the nature of marriage.”[30] there is no codified law for such couples in India yet, nor do religions in India include live-in relationships within their ambit or laws, hence depriving couples in live-in relationships of the well-established laws that legally married couples are endowed with. Thus, by and large, such moves, which essentially mandate parental consent, might not be able to fulfil the aim of the legislators i.e., to arrest ‘social unrest’ (if any is so caused by such marriages). Instead, the proposal might even lead these couples (who wish to marry without parental consent) to drop the idea of formalising their relationship and opt for live-in relationships, which do not enjoy the same status and are not on an equal footing with formally registered marriages, rendering the option unviable.
V. Conclusion
Thus, it can be observed that this demand of the Gujarat assembly legislators for mandatory parental consent in the registration of marriages seriously vitiates the fundamental right to choose a partner of one’s choice. As has been held by the Hon’ble Supreme Court in the case of Shafin Jahan v Asokan K.M.[31] amongst others, the right to choose a life partner of one’s choice is a part of the fundamental rights to life[32] and choice[33] as enshrined in our constitution; neither any individual nor the family/society has any right to object when two consenting adults decide to accept one another as life partners. Thus, a mandatory requirement of parental consent for registration imposes an unnecessary restriction upon this fundamental right. The proposal to mandate parental consent vitiates these rights since it reinforces a legalised version of the tradition of arranged marriages where family consent is paramount. This leaves little autonomy to those marrying; owing to such mindsets, a large number of families and parents seek to prevent inter-caste or inter-faith marriages, which would, in turn, cause problems for non-conforming couples. It will hinder registration for couples, especially those who wish to marry outside their communities or religion. Thus, as society progresses and recognizes the significance of individual rights over societal norms which curb them, such a mandate might prove to be a hindrance in realising one’s basic rights.
Furthermore, as far as the safety of women from allurement is concerned, the proposal still might not be as relevant as there exist laws and services at the disposal of victims; meanwhile, measures aimed at the overall empowerment of women would be more effective in this regard. Further, in the name of social unrest, it seems like an attempt of politicians to curb the freedom of individuals with a progressive mindset who transcend boundaries of caste, creed and religion in choosing their life partners. They have not provided any strong basis for drawing out the relation between the purported social unrest and instances of love marriages. The proposal would not improve the efficacy of the law or arrest ‘social unrest’ as propounded (as has been witnessed in Tamil Nadu in 2018). Instead, adults would be unable to register their marriages, depriving them of another prerogative to formalise their relationship. They would have to turn to live-in relationships, which are not on an equal footing with legally formalized and registered marriages, thus exposing couples to further vulnerabilities. The main problem apparently is the fear of the property being transferred to spouses of other castes, which is unacceptable to the affluent, high-caste communities. Such apprehensions should not come in the way of an individual’s fundamental rights. Thus, the proposal seems to be misplaced concerning the proposed aim of arresting social unrest. Instead, it would essentially disallow couples who have chosen their partners without familial/parental consent from formal registration, exposing them to unrequired hassles and increased societal scrutiny and vulnerabilities. The move might do more harm than good in a society where formal recognition of marriage is vital and alternatives like live-in relationships are not well-received, and at a nascent stage in law and policy-making.
Moreover, while India currently deliberates upon the right to choose the life partner of one’s choice in the debate of legalising same-sex marriages, such reinforcement of conservatism, which hampers the rights of individuals to lead a life the way they want to and with the person(s) they want, is uncalled for. It is solely the person’s prerogative to decide one’s life partner, be it from a different sex or not, the same caste or not, or with parental consent or not. In conclusion, it is imperative to fathom the adverse impact of such unnecessary and unreasonable restrictions on essential rights of the people, such as the right to choose one’s life partner freely, if India is to progress as a nation and realize its ambition of becoming a leader internationally.
End-Notes
[1] The Gujarat Registration of Marriages Act, 2006.
[2] Shakti Vahini v Respondent: Union of India (UOI) and Ors., [2018] AIR 2018 SC 1601.
[3] Mahesh Langa, ‘Gujarat lawmakers seek regulation of ‘love’ marriages’ The Hindu (Ahmedabad, 22 March 2023).
[4] ibid.
[5] Salamat Ansari v State of U.P., 2020 SCC OnLine All 1382.
[6] P.V. Srividya, ‘TN circular sneaks in parental consent in marriage registration’ The Hindu (Krishnagiri, 10 March 2018).
[7] Shakti Vahini (n 2).
[8] The Constitution of India 1950, art 19.
[9] ‘MLAs seek regulation of ‘love’ marriages in Gujarat’ (The Hindu) https://epaper.thehindu.com/ccidist-ws/th/th_kolkata/issues/29659/OPS/GRMB16BRQ.1+GL2B17864.1.html> accessed 28 June 2023.
[10] Shakti Vahini (n 2).
[11] Srividya (n 6).
[12] Langa (n 3).
[13] Pritha Mallick, ‘In Gujarat Assembly, MLAs Demand Parents Sign Be Made Mandatory for Love Marriage Registrations’ (News 18, 17 March 2023).
[14] Indian Penal Code 1872, s 362.
[15] Indian Penal Code 1872, s 354A.
[16] Indian Penal Code 1872, s 354D.
[17] The Legal Services Authorities Act, 1987, s 12.
[18] The Hindu (n 9).
[19] The Hindu Succession Act, 1956, s 6.
[20] The Hindu (n 9).
[21] The Constitution of India, art 19.
[22] The Constitution of India, art 21.
[23] Shakti Vahini (n 2) [41].
[24] Salamat Ansari (n 5) [8].
[25] Shafin Jahan v Asokan K.M., [2018] 16 SCC 368, [88].
[26] Srividya (n 6).
[27] ibid.
[28] J Sam Daniel Stalin, ‘In Tamil Nadu, Now Parents' Documents Not Needed For Marriage Registration’ NDTV (Tamil Nadu, 14 March 2018).
[29] ibid.
[30] Indra Sarma v V.K.V. Sarma (2013) 15 SCC 755.
[31] Shafin Jahan (n 25).
[32] The Constitution of India 1950, art 21.
[33] The Constitution of India 1950, art 19.
Muskan Suhag is a second-year student at the National University of Study and Research in Law, Ranchi. She takes interest in understanding ongoing social developments vis-a-vis the law.
Cover Credits: Painting titled "The Marriage of the Virgin". By Pietro Vannucci known as Pietro Perugino, circa 1448-1523.