Denying right to choose spouse based on caste is a violation of fundamental rights: Himachal HC

Emphasising the right of a woman to exercise her agency while choosing a spouse, the Himachal High Court said that "a girl is not cattle." It recognised that the constitution prohibits discrimination based on caste and doing so is a violation of fundamental rights. The court cited ancient scriptures to reiterate that giving a woman the choice to marry is a part of Indian culture. A report by MANYA SAINI. 

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THE Himachal Pradesh High Court on Tuesday in its ruling asserted that a woman has the freedom to decide independently on the matter of her spouse. The petitioner, Sanjeev Kumar alleged that the family of the woman had detained her to prevent their marriage on the grounds that he belonged to a lower caste.

The single-judge bench of Justice Vivek Thakur in its order said that unlike a non-living being or a cattle, a girl can make decisions based on her own rational judgement. The court stated that denying anyone the right to choose their spouse is a violation of that individual's fundamental rights, guaranteed by the Constitution of India that governs the state.

"It is to be remembered that a girl is not a cattle or non-living thing but a living independent soul having rights, like others, and, on attaining the age of discretion, to exercise her discretion according to her wishes. Unlike ancient western thought, wherein a female was supposed to be created by God from rib of a man for enjoyment of man, in India, a female was always considered not only equal but on higher pedestal than male since Vedic Era, except for evils of Medieval Period, which are necessarily to be eradicated in present era", the judge said.

The couple had consensually decided to marry and had submitted their application under the Special Marriage Act on February 1. The woman, Komal Parmar, a Rajput and Sanjeev Kumar, a Scheduled Caste were forced to take shelter in Palampur due to opposition in their village in Hamirpur. The petitioner alleged that Parmar's family "threatened and maltreated" Kumar's family prompting their return.

Parmar's family had denied the allegation that they were opposing the marriage on grounds of caste, and had instead claimed that she suffered from "mental health problems." However, she has denied this and appeared before the court to testify that her father's submissions were intended to defer the solemnisation of the marriage.

A Religious Defence 

In its order, the court has cited ancient scriptures and Vedic texts as a testament to the notion that "Independence of thought to an individual is a fundamental feature of Indian culture." It states that the "constitution is an embodiment of ancient values of Bhartiya Society," The judgement says that those who continue to defend caste-based discrimination through religion were "ignorant" as this was contrary to its "basic and true essence."

Further quoting the Shrimad Bhagwat Gita, the court observed that many people use the Smritis and Puranas to defend the validity of the caste system, "but forgot the basic principle that the highest source of religious norms are Vedas and anything in any other religious texts, including Smritis and Puranas, which is contrary to the principles propounded in Vedas, is to be considered ultra vires to Vedas and thus, contrary to Dharma and, therefore, is to be discarded."

Justice Thakur further remarked that ancient India recognised the woman's right to marry or refuse a person and inter-caste marriages were also allowed at the time. The judgement states that they are a part of the rich values and principles enshrined in our culture which were clouded by the "evils of the medieval period."

The judgement refers to the scriptures for examples of the marriages of Rukmini and Lord Krishna, Sati and Lord Shiva and Subhadra and Arjun where the union was solemnised despite significant opposition from the woman's family. It also cites the supposed inter-caste marriages of Shantanu and Satyavati along with Dushyant and Shakuntla.

Parmar had clarified that she did not wish to return to her parent's home fearing trauma but had a deep regard for her family, due to which she did not wish to initiate any action against them.

The court eventually ruled that Parmar may go and reside as per her wishes and instructed local authorities to provide rapid assistance in case of an emergency. It directed the Superintendent of Police, Shimla and Hamirpur, SHOs Sadar (Shimla) to ensure her safe passage from the court to the destination she intends to go by deputing police personnel for her protection.

(Manya Saini is a student of journalism at the Symbiosis Institute of Media and Communication and an intern with The Leaflet.)

Read the Judgement 

http://theleaflet.in/wp-content/uploads/2021/02/230100000022021_7-1.pdf