LAW RESOURCE INDIA

Vicissitudes of gotra row

Posted in FUNDAMENTAL RIGHTS, GENDER, HUMAN RIGHTS, JUSTICE, LIBERTY AND JUSTICE, RIGHTS, VICTIMS by NNLRJ INDIA on March 14, 2010

Sustain the crusade against khap panchayatsby Virendra Kumar IN THE TRIBUNE

The gotra row, as stirred up by the bizarre decisions of the khap panchyats, refuses to die down. It all began with the controversy on sagotra marriage – a marriage between a boy and a girl belonging to the same gotra. Recently, such a controversy came into focus when following the diktat of Kadyan Barha Khap Panchayat, the members of the Dharana village community resorted to social boycott with the Gelhout family residing in the same village.

The reason for this social sanction was that the Gelhouts married their son Ravinder to the daughter Shilpa of the Kadyans of the same gotra. Such a social sanction could be lifted only if the former agreed to annul the marriage of their son. If this was not done, they must leave the village within a stipulated period of time. Since the couple did not resile, they were ordered not to enter the village.

This controversy appeared in a precipitated form when Ved Pal Mor (23), was lynched by an irate mob in Singhawala village of Narwana in Haryana on July 22, 2009. Worse, this appalling act was done in the very presence of the police that accompanied the warrant officer of the Punjab and Haryana High Court along with Mor (the petitioner), who was deputed to ‘recover’ his wife from the house of in-laws in a writ of habeas corpus.

What was the provocation for this ghastly act? Mor’s only fault was that he dared to marry the girl of adjoining village Matour of the same gotra by violating the so-called well-entrenched social norms of the community to which he belonged. On this gory incident, the government maintained studied silence. So was the response of almost all political bigwigs who aspire to gain power by garnishing votes at the election.

Is it legal and constitutional for the khap panchayats either to pronounce nullity of marriage or to enforce expulsion against the members of the community who are not willing to abide by their dictum? A peep into the social and legal history of India reveals that sagotra marriage invariably falls within the ambit of prohibited relationship. We find resonance of this rule in the Hindu Dharmashatras. The Mitakshara Hindu law (a commentary on Hindu Dharmashatras, which still constitutes the basis of the modern codified Hindu law to a large extent), for instance, expressly states that a girl who is a sapinda, sagotra or samanaparavara does not acquire the status of a wife on marriage.

However, the redeeming feature of this shastric rule was that it was not rigid or inexorable. It kept on changing with the flux of time, but only through the adoption of silent, non-violent, customary practices. The Judicial Committee of the Privy Council summed up this social phenomenon perceptively long-long ago in Ramnad case (1868) by observing that under the Hindu system of law, clear proof of usage will outweigh the written text of law.

The deviation from the prohibition of sagotra marriage is not only fairly old but also widespread. This is evident from the judicial decisions emanating from the wide spread jurisdictions of Bombay, Madras and Lahore. See, for instance, Minakshi vs. Ramanadha (1888) from Madras; Santappayya vs. Rangappayya (1895) from Madras; Ramachanra vs. Gopal (1908) from Bombay; and Sri Krishen vs. Sham Sunder (1933) from Lahore – in all these cases sagotra marriages amongst the members of different communities were legally recognised because in each case a custom permitting such marriage had been clearly made out.

The rational of deviation is that the rules of prohibition are directory in nature and not mandatory. Such an approach instantly opens wide vistas for the play of human rights jurisprudence.

Keeping in view the changing disposition of society, the legislature intervened way back in 1946. Through the enactment of Hindu Marriage Disabilities Removal Act (XXVIII of 1946), a reform was sought to be introduced by sanctioning sagotra marriages. It proclaimed that notwithstanding any text, rule or interpretation of the Hindu law or any custom or usage to the contrary, a marriage between Hindus, which is otherwise valid, shall not be invalid by reason only of the fact that the parties thereto belong to the same gotra or pravara. After Independence, this reformative measure was made more comprehensive with retrospective effect under the provisions of the Hindu Marriage Act of 1955.

Despite these legislative reforms, proclaimed and adopted as a matter of public policy, Haryana’s khap panchayats do not seem to recognise and accept the reformative direction. Instead they impose their bigoted will with force on others, which is brazenly unsocial, undemocratic, illegal and un-constitutional.

In a civil society, use of force is the exclusive preserve of the state and none else. Jurisprudentially, it is its most distinguishing feature. Thus, the state is duty bound to act and intervene, more so when it comes to the protection and preservation of human rights so eloquently guaranteed under the Constitution. Even otherwise, all the institutional arrangements in a civil society operate within and not outside the basic framework of the Constitution.

Under the pressure of public opinion, however, the state machinery has been prompted to take note of violation of human rights. An encouraging role of the state has come to light when a determined couple, whose marriage had come under a cloud when the panchayat of Boora gotra had opposed their marriage on the ground that Saharans and Booras shared brotherly relations, got married under the cover of police protection, albeit outside village (The Tribune, Feb 7, 2010).

For keeping up this crusade, the pressure of public opinion so systematically built up by the national press requires sustenance through continual debate and discussion by involving the representatives of various social organisations, voluntary bodies and social activists. It should be done preferably at the village level through the medium of language and culture of the villagers themselves. Indeed, it is the bounden duty of every citizen to develop scientific temper, humanism and the spirit of inquiry and reform.

The writer is Director (Academics), Chandigarh Judicial Academy, Chandigarh

http://www.tribuneindia.com/2010/20100314/edit.htm#3

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