LAW RESOURCE INDIA

National Legal Research Desk on Violence Against Women and Children

Supreme Court of India

NATIONAL LEGAL RESEARCH DESK

The Constitution of India provides for special treatment of women, guarantees equality and prohibits discrimination. The government of India has been strengthening various laws focused on women and children. This has been more visible since the Beijing CEDAW Conference. The recent years have been witness to some landmark interpretations and directives related to Violence against Women.  Despite the constitutional mandate of equal legal status for men and women, the same is yet to be realized. The dejure laws have not been translated into defacto situation for various reasons such as illiteracy, social practices, prejudices, cultural norms based on patriarchal values, poor representation of women in policy-making, poverty, regional disparity in development, lack of access and opportunity to information and resources, etc. The ground situation more or less remains the same.

Most of the laws come with various institutional machinery, partnership between various stakeholders and active role of NGOs.  These institutions need to be in existence in order for the law to be effective. Also the policies and programmes made at the top takes a long time to percolate to the bottom and there is an urgent need of sharing information and resoursces.

 The awareness on laws and access to justice remains dismal. At the district and the state level sensitivity on women rights among judicial officers, administration and the police is very low. This leads to a situation where the implementation of the law becomes difficult.  Recently India has increased its budgetary support for the implementation of various laws on violence against women and it becomes increasingly more important for the organization like Shakti Vahini to work on governance specially related to women and children issuesThe National Legal Research Desk (NLRD) has been instituted to strengthen the implementation of the laws related to Women and Children in India. NLRD focuses on documenting the recent changes in the law, collect and compile the Recent Landmark Judgments of the Supreme Courts of India & the High Courts and ensure wide scale dissemination of the same through the government and the non government machinery. The NLRD will work with Law Enforcement Agencies, Police Academies, Judicial Agencies, Government Agencies, Statutory Agencies, NGOs, Civil Society and Mass Media on promoting Access to Justice for Women and Children. The NLRD website is a knowledge Hub for compilation of all Laws, Judgements and Resource materials on Violence against Women and Children in India. In the first phase (2012) it will focus on the laws related to Human Trafficking, Domestic Violence, Juvenile Justice, Rape Laws, PCPNDT Act , Honour Crimes and Victim Compensation.

NATIONAL LEGAL RESEARCH DESK

Advertisements

Law Commission proposes legislation to curb ‘honour killings’

Posted in CRIME AGAINST WOMEN, FUNDAMENTAL RIGHTS, GENDER, Honour Kilings, HUMAN RIGHTS by NNLRJ INDIA on June 8, 2011

J. Venkatesan IN THE HINDU

The draft has been approved and is expected to be released shortly for comments

There must be a bar on assembly for discussing young persons marrying as per their choice

Village elders have no right to interfere with the life and liberty of such couples

 NEW DELHI: To tackle the menace of ‘honour killings‘ in some parts of the country and deal with illegal orders from by ‘khap panchayats,’ the Law Commission has proposed legislation to prosecute persons or a group involved in such endangering conduct and activities.

The proposed legislation, ‘The Endangerment of Life and Liberty (Protection, Prosecution and other measures) Act, 2011,’ drafted by Law Commission Member and senior advocate R. Venkataramani, has been discussed and approved by the Commission, which is headed by Justice P. Venkatarama Reddi. It is expected to be released shortly for comments.

The Commission has turned down the demand for introducing a clause in Section 300 of the Indian Penal Code (murder) to bring ‘honour killings’ under the ambit of this Section. It says: “There is no need to introduce a provision in Section 300 in order to bring the so-called honour killings within the ambit of this provision. The addition of such a clause may create confusion and interpretational difficulties. The existing provisions in the IPC are adequate to take care of the situations leading to overt acts of killing or causing bodily or other acts to the targeted person who allegedly undermined the honour of the caste or community.”

The idea behind the provisions in the draft legislation is that there must be a threshold bar on congregation or assembly for discussing and condemning the conduct of young persons above the age of majority in marrying as per their choice even if they belong to the same ‘gotra’ (which is not prohibited) or they belong to different castes or communities. ‘Panchayatdars’ or village elders have no right to interfere with the life and liberty of such young couples and they cannot create a situation in which such couples are placed in a hostile environment in the village/locality concerned.

Under the proposed law, “the act of endangerment of life and liberty shall mean and include any manner of acts of threat, encouragement, commending, exhorting and creating an environment whereby loss of life and liberty is imminent or threatened and shall include (a) enforcement of measures such as social boycott, deprivation of the means of livelihood, denial of facilities and services which are otherwise generally available to the people of the locality concerned and (b) directly or indirectly compelling the persons concerned to leave or abandon their homestead in the locality.”

“Further, it shall be unlawful for any group of persons to gather, assemble or congregate with the … intention to deliberate, declare on, or condemn any marriage or relationship such as marriage between two persons of majority age in the locality concerned on the basis that such conduct or relationship has dishonoured the caste or community or religion of all or some of the persons forming part of the assembly or the family or the people of the locality concerned.”

It shall be presumed that any person or persons found to be part of the unlawful caste assembly did so with the intention to act in endangerment of life or liberty. Such an assembly shall be treated as an unlawful assembly and those present in it shall be punished with imprisonment for a period of not less than three years and extending up to five years and a fine of Rs.30,000.

The draft legislation says: “Any person or persons instrumental in gathering of such an assembly or who takes an active part in the execution of the assembly shall also be subjected to civil sanctions,” viz., they will not be eligible to contest any election to any local authority and will be treated as a disqualified candidate.

Stamp out khap panchayats: court

Posted in CONSTITUTION, Honour Kilings, LIBERTY AND JUSTICE by NNLRJ INDIA on April 20, 2011

J. Venkatesan in THE HINDU

Casteism is one of the main causes holding up the country’s progress

Calling a person by caste name, if used with intent to insult, is an offence under SC/ST Act

Society regarding a section of its own countrymen as inferior is simply unacceptable


New Delhi: While deprecating the caste system in the country, the Supreme Court has declared illegal ‘khap panchayats’ which often decree or encourage honour killings or other institutionalised atrocities against boys and girls of different castes and religions who wish to get married or have married.

“This is wholly illegal and has to be ruthlessly stamped out. There is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of the personal lives of people committed by brutal, feudal-minded persons deserve harsh punishment. Only this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal,” a Bench of Justices Markandey Katju and Gyan Sudha Misra said on Tuesday.

Sentence upheld

The Bench upheld the sentence of two-year imprisonment, including six months’ imprisonment under the SC/ST (Prevention of Atrocities) Act, 1989, awarded by a trial court to Arumugam Servai, who called a member of a Scheduled Caste community by his caste name, ‘Pallan‘. It dismissed his appeal against a Madras High Court judgment.

Writing the judgment, Justice Katju said: “The word ‘Pallan’ no doubt denotes a specific caste, but it is also a word used in a derogatory sense to insult someone. Even calling a person ‘Pallan,’ if used with intent to insult a member of the Scheduled Caste, is, in our opinion an offence under the SC/ST PoA Act.”

Jefferson’s ringing words

The court quoted Thomas Jefferson in the American Declaration of Independence, 1776 saying “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator by certain inalienable rights that among these are life, liberty, and the pursuit of happiness.”

The Bench said: “Over two centuries have passed since Thomas Jefferson wrote those memorable words, which are still ringing in history, but a large section of Indian society still regards a section of its own countrymen as inferior. This mental attitude is simply unacceptable in the modern age, and it is one of the main causes holding up the country’s progress.”

Two-tumbler system

The Bench also expressed its anguish over the two-tumbler system prevalent in many parts of Tamil Nadu. “This system is that in many tea shops and restaurants there are separate tumblers for serving tea or other drinks to Scheduled Caste persons and non-Scheduled Caste persons. In our opinion, this is highly objectionable, and is an offence under the SC/ST Act, and hence those practising it must be criminally proceeded against and given harsh punishment if found guilty. All administrative and police officers will be accountable and departmentally proceeded against if, despite having knowledge of any such practice in the area under their jurisdiction, they do not launch criminal proceedings against the culprits.”

Condemning honour killings and khap panchayats, the Bench directed the administrative and police officials to take strong measures to prevent such atrocious acts. “If any such incidents happen, apart from instituting criminal proceedings against those responsible for such atrocities, the State government concerned is directed to immediately suspend the District Magistrate/Collector and the SSP/SPs of the district as well as other officials concerned and chargesheet them and proceed against them departmentally if they do not prevent the incident if it has not already occurred but they have knowledge of it in advance, or if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them, as, in our opinion, they will be deemed directly or indirectly accountable in this connection.”

The Bench directed that a copy of this judgment be sent to all Chief Secretaries, Home Secretaries and Directors-General of Police in all States and Union Territories, and circulated to all officers up to the level of District Magistrates and SSP/SP for strict compliance. A copy would also be sent to the Registrars-General/Registrars of all High Courts who would circulate it to all judges.

Government Officials will be held responsible for Honour Killings

19 April  2011/ PTI News

In CRIMINAL APPEAL NO._958__of 2011  Arumugam Servai Vs  State of Tamil Nadu  ( Respondent) The Bench of Justice Markandey  Katju and Justice Gyan Sudha Mishra  has passed a order on the Honour Killings being reported across India. The bench stated that    in   recent   years    `Khap   Panchayats’   (known   as  katta panchayats in Tamil Nadu) which often decree or encourage honour killings or other atrocities in an institutionalized way  on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives of people.    We   are   of   the   opinion   that   this   is   wholly  illegal   and   has   to   be   ruthlessly stamped   out.   As  already   stated   in  Lata   Singh’s  case   (supra),   there   is  nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal minded persons deserve harsh punishment.  Only in this way can we stamp out such acts of barbarism and feudal mentality.  Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal.

Hence,   we   direct   the   administrative   and   police   officials to   take   strong measures   to   prevent   such   atrocious  acts. If   any   such   incidents   happen,   apart   from instituting criminal proceedings against those responsible for such atrocities, the State Government is directed to immediately suspend the District Magistrate/Collector and SSP/SPs of the district as well as other officials concerned and chargesheet them and proceed against  them departmentally if they do not (1) prevent  the incident  if it has not   already   occurred   but  they  have   knowledge   of   it   in   advance,   or   (2)   if   it   has occurred,   they   do   not   promptly   apprehend   the   culprits  and   others   involved   and institute criminal proceedings against them, as in our opinion they will be deemed to
be directly or indirectly accountable in this connection.

Copy   of   this   judgment   shall   be   sent   to   all Chief Secretaries,   Home Secretaries and Director Generals of Police in all States and Union Territories of India with the direction that it should be circulated to all officers up to the level of District Magistrates   and   S.S.P./S.P.   for   strict   compliance.   Copy   will   also   be   sent   to   the Registrar  Generals/Registrars  of all High Courts  who will  circulate it to all Hon’ble Judges of the Court.

HONOUR KILLINGS / HONOUR CRIMES AND THE NEED FOR NEW LAW

Posted in FUNDAMENTAL RIGHTS, GENDER, Honour Kilings, HUMAN RIGHTS by NNLRJ INDIA on August 7, 2010

Existing Penalties under Indian Penal Code:

Sections 299-304: Penalizes any person guilty of murder and culpable homicide not amounting to murder.  The punishment for murder is life sentence or death and fine.  The punishment for culpable homicide not amounting to murder is life imprisonment or imprisonment for upto 10 years and fine.

Section 307: Penalizes attempt to murder with imprisonment for upto 10 years and a fine.  If a person is hurt, the penalty can extend to life imprisonment.

Section 308: Penalizes attempt to commit culpable homicide by imprisonment for upto 3 years or with fine or with both.  If it causes hurt, the person shall be imprisoned for upto 7 years or fined or both.

Section 120A and B: Penalizes any person who is a party to a criminal conspiracy.

Sections 107-116: Penalizes persons for abetment of offences including murder and culpable homicide.

Section 34 and 35: Penalizes criminal acts done by several persons in furtherance of common intention.

Section 300: introduce “fifthly” clause to Section 300 of IPC which at present defines “murder” under four categories. The additional definition would make khap-dictated honour killings a distinct offence and make all those who participate in the decision liable to be tried for the main charge, that is murder, and liable maximum penalty, death.

Arguments favoring new law

Making the crime of honour killing a separate offence would help bring more clarity for law enforcement agencies.

One of the proposals is to amend the Indian Evidence Act to put the burden of proof on the accused.  Thus, the khap panchayat or the family members would be responsible for proving their innocence.

There would be joint liability under the proposed new law.  The khap panchayat (or any group ordering honour killings and the person who carries out the killing would be jointly liable for punishment.

Presently there is no definition of Honour Killing/ crime or clarity.

Since Honour Killings /Honour crimes are not separate crime and hence we don’t have any data.

Protection powers to the magistrate at the District level

New law will provide mandate for special police cell in each district to provide protection to couples.

New law comes with a institutional machinery and the required coordination of all stakeholders. It will also mandate the different state government and the Centre to work on sensitization of the law enforcement agencies. The new law will mandate social initiatives and awareness to curb such violence through social means.

Honour crimes should include all the crimes against women which are perpetrated by the community. There are many cases of women being branded witches, paraded naked, tortured in public which are very heinous offences of honour and hence need to be strengthened by a special law and to have stringent punishments.

Having a special law can be deterrent.

Relaxation in the Special Marriages Act

The present procedure of getting a marriage registered is a long process. The complete process takes about 45 days. During this period a couple may be vulnerable. Steps need to be taken to simplify the registration process.

Arguments against new law

The existing penalty for the offence of murder is sufficient if they are implemented strictly and effectively.

A new set of laws would not deter honour killings because the basic issue is social sanction for acts committed to curtail same gotra marriage, inter-caste marriage, inter-religion marriage.

Need for creating awareness among traditional communities through education.

Holding khap panchayats collectively accountable can be detrimental to members who do not support such killing.  Also, it could be misused for vindictive agendas.

Tagged with:

HONOUR CRIMES AND THE LAW

Posted in FUNDAMENTAL RIGHTS, GENDER, Honour Kilings, HUMAN RIGHTS by NNLRJ INDIA on August 7, 2010

By Ravi Kant , Advocate Supreme Court of India and President Shakti Vahini

All forms of gender based violence, “crimes of honour” deprive women of the right to life, liberty and security of person, the right to be free from torture or cruel, inhuman or degrading treatment or punishment, right to equality in the family and the right to the highest attainable standard of physical and mental health. In the broader context of patriarchal principles motivating “crimes of honour”, India is obligated as a state party to ensure that all discrimination against women in matters relating to marriage and family relations are eliminated, providing them with the same right to enter into marriage and to freely choose a spouse and to enter into marriage only with their free and full consent .This includes ensuring that informal decision making bodies operating on customary laws, such as the khap panchayat, are refrained from enforcing their dicta, and interfering with the right of women to choose their spouse.

India, as a state party to CEDAW has the legally binding obligation to “eliminate discrimination against women by any person, organization or enterprise,” as enumerated in article 2e. State parties have to take appropriate measures to eliminate prejudices and customary practices, such as “crimes of honour”, “which are based on the idea of the inferiority or the superiority of either of the sexes,” as enumerated in article 2e. Creating statutes that criminalize the different types of acts that fall within the ambit of “crimes of honour”, while essential, is certainly not adequate if there is no systematic enforcement of the statutes. Active prosecutions are one of the means to achieve the practical realization of eliminating discriminatory principles such as “crimes of honour”, in order to ensure that state parties meet their obligations to “take all appropriate measures to eliminate discrimination against women [article 2]. Taking preventative measures, such as promoting gender sensitization and initiatives on combating dated patriarchal notions, are also necessary to eliminate discrimination against women.

INDIAS NATIONAL COMMITMENT
Article 14 , Constitution of India The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 15(1) , Constitution of India The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Article 15(3) , Constitution of India Nothing in this article shall prevent the State from making any special provision for women and children.
Article 21 , Constitution of India No person shall be deprived of his life or personal liberty except according to procedure established by law.
INTERNATIONAL COMMITMENT

Convention on the Elimination of All Forms of Discrimination against Women (1981) Article 2

States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:

(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;

(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public  authorities and institutions shall act in conformity with this obligation;

(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

(g) To repeal all national penal provisions which constitute discrimination against women.

Article 5

States Parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

Article 16

1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

(a) The same right to enter into marriage;

(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;

Convention on the Elimination of All Forms of Discrimination against Women (1981) General Recommendation No. 195 that “discrimination” includes “gender based violence …. that is directed against a woman because she is a woman or that affects women disproportionately.”

Gender based violence includes “acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.”

The Committee advises that traditional, patriarchal and archaic views that subordinate women to men contribute to gender based violence. These socially constructed gender based stereotypes legitimize and “justify gender-based violence as a form of protection or control of women.” “Crimes of honour”, including fatwaas, “honour killings,” rape, beatings and torture, forced separation and divorce, extortion and displacement, that are specifically and disproportionately targeted towards woman, are similarly justified as means to control women.

Commission on Human Rights In its resolution 2000/31 on extrajudicial, summary or arbitrary executions, the Commission on Human Rights expressed concern at the large number of killings committed in the name of passion or in the name of honour reported by the Special Rapporteur, and called upon Governments to investigate such killings promptly and thoroughly; to bring those responsible to justice; and to ensure that such killings were neither condoned nor sanctioned by government officials or personnel. The Commission adopted similar resolutions in 2001 (resolution 2001/45) and 2002 (resolution 2002/36). In its resolution 2000/45 on the elimination of violence against women, the Commission defined the term “violence against women” as any act of gender-based violence that resulted in or is likely to result in physical, sexual or psychological harm or suffering to women, including crimes committed in the name of honour and crimes committed in the name of passion, and called upon States to condemn violence against women and not to invoke custom, tradition or practices in the name of religion to avoid their obligations to eliminate such violence. The Commission adopted similar resolutions in 2001 (resolution 2001/49) and 2002 (resolution 2002/52).

Subcommission on the Promotion and Protection of Human Rights (former Sub commission on Prevention of Discrimination and Protection of Minorities)

The Subcommission addressed crimes of honour in its resolutions 2000/10 and 2001/13 on traditional practices affecting the health of women and the girl child,3 in which it shared the concerns of the Special Rapporteur of the Subcommission on traditional practices affecting the health of women and the girl child about the perpetuation of certain harmful traditional practices, including crimes of honour, and appealed to all States concerned to intensify efforts to develop awareness of and mobilize national public opinion concerning the harmful effects of all forms of harmful traditional practices, in particular through education, information and training, in order

Attention has been drawn, particularly in recent years, to the issue of crimes against women committed in the name of honour at the international and national levels, and the issue has been addressed by intergovernmental and expert bodies within the United Nations system, and some measures have been taken by Member States to eliminate such acts.

International Covenant on Civil and Political Rights . As a member to this covenant the Union of India is mandated to provide to all its citizens the rights guaranteed under the following articles :

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 23

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Universal Declaration of Human Rights The Union of India as a member to the Universal Declaration of Human Rights has an obligation to protect the lives, rights and liberty of individuals and protect them from such heinous crimes. The Universal declaration of Human Rights under Article 16 guarantees the following:

(1)  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.

(2)   Marriage shall be entered into only with the free and full consent of the intending spouses.

(3)  The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

SUPREME COURT /HIGH COURT JUDGEMENTSJUDGEMENTS ON CRIMES OF HONOUR

WRIT OF HABEAS CORPUS ISSUES NOT ONLY FOR RELEASE FROM DETENTION BY THE STATE BUT ALSO FROM PRIVATE DETENTION / BEFORE THE COURT ACEDES TO THE REQUEST OF HUSBAND TO REGAIN CUSTODY HE NEEDS TO PROVE THE VALIDITY OF HIS MARRIAGE

MOHD. IKRAM HUSSAIN Vs. STATE OF U.P. & OTHERS      AIR 1964 SC 1625

A writ of habeas corpus issues not only for release from detention by the State but also for release from private detention. At common law, a writ of habeas corpus is available to the husband for regaining the custody of his wife if she is wrongfully detained by anyone without her consent. Hence the order of the High Court was not without jurisdiction. However, issuing of a writ of habeas corpus at the instance of a husband is very rare in English law. In India, such a writ is probably never used by a husband to regain his wife and the alternative remedy under s. 100 of the Code of Criminal Procedure is always used. There is also the remedy of a civil suit for restitution of conjugal rights. In both these cases, all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact have first to be established. This is because the writ of habeas corpus is festinum  remedium and the power can only be exercised in a a clear case. That is particularly so in cases where the petitioner is himself charged with a criminal offence in respect of the very person for whose custody he demands the writ. A writ of habeas corpus at the instance of a man to obtain possession of a woman alleged to be his wife does not issue as a matter of course. Though a writ of right, it is not a writ of course, especially when a man seeks the assistance of the court to regain the custody of a woman. Before a court accedes to his request, it must satisfy itself at least primafacie that the person claiming the writ is in fact the husband and whether a valid marriage between him and the woman could at all have taken place.

SUPREME COURT CALLS FOR COMPENSATION FOR ILLEGAL CONFINEMENT BY THE POLICE AT THE BEHEST OF GIRLS FAMILY IN A CASE OF CONTETIOUS INTERCASTE MARRIAGE / OPRDERS DISTRICT JUDGE TO FILE STATUS REPORT.

SUPREME COURT ORDERS COMPENSATION ON ILLEGAL CONFINEMENT, TORTURE AND HARRASMENT OF GIRL AND HER INLAWS ON THE BEHEST OF GIRLS FAMILY IN  A CASE OF INTER CASTE MARRIAGE

ARVINDER SINGH BAGGA V. STATE IF U.P    AIR 1995 SC 117

The Judgment of the Court was delivered by S. MOHAN, J.-

We have carefully perused the report. We are appreciative of the good work done by the learned District Judge. He had held a thorough inquiry by examining several witnesses to arrive at the truth. In our considered opinion the report is a fair one and deserves to be accepted. It is accordingly accepted.

The report in no uncertain terms indicts the police. It inter alia states:

“On a careful consideration of all the evidence on record in the light of the surrounding circumstances I accept the claim of Nidhi that she was tortured by the police officers on 24/25/26-7-1993. On 24-7-1993 she was pressurised by J.C. Upadhyay SHO, Sukhpal Singh SSI and Narendrapal Singh SI and threatened and commanded to implicate her husband and his family in a case of abduction and forcible marriage thereafter. She was threatened with physical violence to her husband and to herself in case of her default and when she refused, her family members were brought in to pressurise her into implicating them. On 25-7-1993 she was jolted out of sleep by Sukhpal Singh SSI and made to remain standing for a long time. She was abused and jostled and threatened by J.C. Upadhyay, Sukhpal Singh and Narendrapal Singh with injury to her body if she did not write down the dictated note. Sukhpal Singh SSI even assaulted her on her leg with danda and poked it in her stomach. She did not yield to the pressure. Then, on 26-7-1993 567 she was given filthy abuses and threatened by J.C. Upadhyay and Sukhpal Singh for writing a dictated note. She was pushed and jostled by them both. Sukhpal Singh SSI hit her with a danda on her leg and made threatening gestures aiming his danda on her head. Ultimately they both succeeded in making her write a note dictated by them whose contents were those which were incorporated by the investigating officer in his case diary as her statement under Section 161 CrPC. Thereafter on 27th July she was purported to be taken by K.C. Tyagi to the Court for the recording of her statement under Section 164 CrPC but was taken by J.C. Upadhyay SHO to Chauki Chauraha Police Outpost and kept there and brought to the police station and kept there. She was despatched from there to Nari Niketan only at 5 p.m. When ACJM 11 had passed orders for Nidhi being kept at Nari Niketan, Bareilly, K.C. Tyagi 10 was under obligation to take her from court to Nari Niketan straightway without any delay whatsoever but she was brought back to the police station and lodged there and only afterwards she was despatched from there for Nari Niketan. Then on 29-7-1993 while being taken to the court for the recording of her statement under Section 164 CrPC Nidhi was brought from Nari Niketan to the police station and there J.C. Upadhyay SHO commanded her to speak that which he had asked her to speak and if she did not make her statement accordingly and went with Charanjit Singh then she would not be spared by him and he would ensure that she underwent miserable lifetime.

He further told her that if she cultivated enmity with the police its consequences were only too obvious. So the torture extended uptil 29-7-1993. Torture is not merely physical, there may be mental torture and psychological torture calculated to create fright and submission to the demands or commands. When the threats proceed from a person in Authority and that too by a police officer the mental torture caused by it is even more grave.” This clearly brings out not only high-handedness of the police but also uncivilised behaviour on their part. It is difficult to understand why Sukhpal Singh SSI assaulted Nidhi on her leg with danda and poked it in her stomach.

Where was the need to threaten her? As rightly pointed out in the report that torture is not merely physical but may even consist of mental and psychological torture calculated to create fright to make her submit to the demands of the police? 5. A further reading of the report shows:

(i) fabrication;

(ii) illegal arrest;

(iii) without personal knowledge or credible information that the arrested persons were involved in a cognizable offence; and

(iv)illegality of verbal order of arrest not contemplated under Section 55 CrPC.

This again is a blatant abuse of law.

The report clearly holds Narendrapal Singh SI of indulging in illegal arrest and detention in arresting Charanjit Singh Bagga and Rajinder Singh Bagga. Further, both of them were tortured as they were given danda blows at police station on 23-7-1993. The report blames J.C.Upadhyay SHO and K.C. Tyagi 10 for the wrongful detention of Nidhi. It concludes:

“The detention of a married woman in custody who is not an accused on the pretext of her being a victim of abduction and rape which never was to her knowledge and to the knowledge of the police officers concerned aforesaid is itself a great mental torture for her which cannot be compensated later but here we have found that she was tortured otherwise also by threats of violence to her and to her husband and his family and was given physical violence calculated to instil fear in her mind and compel her to yield and to abandon her marriage with Charanjit Singh Bagga which had been duly performed in Arya Samaj Bhoor and which had been duly registered in the office of Registrar of Hindu Marriages under the U.P. Hindu Marriage Registration Rules, 1973 framed by the Governor in exercise of the powers conferred by Section 8 of the Hindu Marriage Act, 1955 (Act No. XXV of 1955). She was made to write a statement as commanded by J.C. Upadhyay SHO and Sukhpal Singh SSI on 26-7- 1993 which was reproduced by the 10 in the case diary as her statement under Section 161 CrPC. The physical and mental torture was given to Nidhi on 24-7-1993 and 25-7-1993 by J.C. Upadhyay SHO, Sukhpal Singh and SSI and Narendrapal Singh SI but on 26-7-1993 it was done by only J.C. Upadhyay SHO and Sukhpal Singh SSI and there was no participation of K.C. Tyagi  in the torture and harassment dated 24-7-1993, 25-7-1993 and 26-7-1993.”

On a perusal of all the above, we are really pained to note that such things should happen in a country which is still governed by the rule of law. We cannot but express our strong displeasure and disapproval of the conduct of the police officers concerned. Therefore, we issue the following directions:

1.The State of Uttar Pradesh will take immediate steps to launch prosecution against all the police officers involved in this sordid affair.

2. The State shall pay a compensation of Rs 10,000 to Nidhi, Rs 10,000 to Charanjit Singh Bagga and Rs 5000 to each of the other persons who were illegally detained and humiliated for no fault of theirs. Time for making payment will be three months from the date of this judgment. Upon such payment it will be open to the State to recover personally the amount of compensation from the police officers concerned.

Writ petition shall stand disposed of in view of the above terms.

URL: http://www.commonlii.org/in/cases/INSC/1994/517.html

JAMSHED AND ANOTHER VS STATE OF UTTAR PRADESH AND ORS

Gulshan Jahan had married Jamshed in the presence of witnesses and claimed to be major. However her father filed an FIR stating that she was a minor (14) and had been kidnapped by Jamshed. The High Court had to consider Gulshans disputed marriage and thereafter establish wether she was with Jamshed of her own sweet will. Medical examination established she was above 18 and the detention was illegal. Accordingly the court held that since Gulshan Jahan stated she had married Jamshed of her own choice and that the guardianship of her father had ceased the day she became a major and since both Gulshan and Jamshed were major the law did not prohibit them for loving each other They had to live therir lives with dignity and honour and make their life meaningful. The court also noted their right to privacy, to protection of life and personal liberty under Article 21 of the constitution.

JYOTI ALIAS JANNAT AND ANOTHER VS STATE OF UP AND OTHERS

According to Indian Majority Act 1875 a person who is 18 years of age is a major vide section 3 of the Act. The law deems that a major understands his / her welfare. Hence a major can go wherever he /she likes and live with anybody. India is a free, democratic, welfare country. Hence if a person is major even parents cannot interfere with that individual. Once a person becomes a major that person cannot be restrained from going anywhere and live with anyone. Individual liberty under Article 21 has the highest place in the constitution.

SHIV KUMAR GUPTA ALIAS RAJU VS STATE OF UP AND ORS 1999 LUCKNOW LAW REPORTER JOURNAL

Rani Gupta moved the court claiming her father was forcing her to marry a boy she disliked. Of her own free will she entered into marriage with a person of her choice. The Court accepted that she was a major and Rani was given the opportunity of making her statement to the court on her choice. The court stayed the arrest of her husband stating that the personal liberty of Rani Gupta should not be interfered with.

JOGINDER KUMAR V STATE OF UTTAR PRADESH AIR 1994 SC 1349

The Supreme Court in this case laid down guiding principles on the law of arrest.

In India, Third Report of the National Police Commission at p. 32 also suggested:

“An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:

(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.

(ii) The accused is likely to abscond and evade the processes of law.

(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.

It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines……” The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A  person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.

REGISTRATION OF MARRIAGES MADE MANDATORY

SMT SEEMA VS ASHWANI KUMAR Transfer Petition (civil) 291 of 2005 /Supreme Court

In the affidavit filed on behalf of the National Commission for Women (in short the ’National Commission’) it has been indicated as follows:

“That the Commission is of the opinion that non-registration of marriages affects the most and hence has since its inception supported the proposal for legislation on compulsory registration of marriages. Such a law would be of critical importance to various women related issues such as:

(a) prevention of child marriages and to ensure minimum age of marriage.

(b) prevention of marriages without the consent of the parties.

(c) Check illegal bigamy/polygamy

(d) Enabling married women to claim their right to live in the matrimonial house, maintenance, etc.

(e) Enabling widows to claim their  inheritance rights and other benefits and privileges which they are entitled to after the death of their husband.

(f) Deterring men from deserting women after marriage.

(g) Deterring parents/guardians from selling daughters/young girls to any person including a foreigner, under the garb of marriage.”

As noted supra, except four statutes applicable to States of Maharashtra, Gujarat, Karnataka, Himachal Pradesh and Andhra Pradesh registration of marriages is not compulsory in any of the other States. As is evident from narration of facts though most of the States have framed rules regarding registration of marriages, registration of marriage is not compulsory in several States. If the record of marriage is kept, to a large extent, the dispute concerning solemnization of marriages between two persons is avoided. As rightly contended by the National Commission, in most cases non registration of marriages affects the women to a great measure. If the marriage is registered it also provides evidence of the marriage having taken place and would provide a rebuttable presumption of the marriage having taken place. Though, the registration itself cannot be a proof of valid marriage per se, and would not be the determinative factor regarding validity of a marriage, yet it has a great evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage is registered and the age of parties to the marriage. That being so, it would be in the interest of the society if marriages are made compulsorily registrable. The legislative intent in enacting Section 8 of the Hindu Act is apparent from the use of the expression “for the purpose of facilitating the proof of Hindu Marriages”. As a natural consequence, the effect of non registration would be that the presumption which is available from registration of marriages would be denied to a person whose marriage is not registered.

Accordingly, we are of the view that marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in their respective States, where the marriage is solemnized.

Accordingly, we direct the States and the Central Government to take the following steps:

(i) The procedure for registration should be notified by respective States within three months from today. This can be done by amending the existing Rules, if any, or by framing new Rules. However, objections from members of the public shall be invited before bringing the said Rules into force. In this connection, due publicity shall be given by the States and the matter shall be kept open for objections for a period of one month from the date of advertisement inviting objections. On the expiry of the said period, the States shall  issue appropriate notification bringing the Rules into force.

(ii) The officer appointed under the said Rules of the States shall be duly authorized to register the marriages. The age, marital status (unmarried, divorcee) shall be clearly stated. The consequence of non-registration of marriages or for filing false declaration shall also be provided for in the said Rules.

Needless to add that the object of the said Rules shall be to carry out the directions of this Court.

(iii) As and when the Central Government enacts a comprehensive statute, the same shall be placed before this Court for scrutiny.

(iv) Learned counsel for various States and Union Territories shall ensure that the directions given herein are carried out immediately.

LATA SINGH CASE (2006)

Writ Petition (Crl.) 208 of 2004

This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her husband’s relatives.

We are of the opinion that no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioner’s brothers who were only furious because the petitioner married outside her caste.

We are distressed to note that instead of taking action against the petitioner’s brothers for their unlawful and high-handed acts (details of which have been set out above) the police has instead proceeded against the petitioner’s husband and his relatives. Since several such instances are coming to our knowledge of harassment, threats and violence against young men and women who marry outside their caste, we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one.

The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished.

This is a free and democratic country, and once a person becomes a major he or 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 relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or intereligious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.

We sometimes hear of ‘honour’ killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism. The police at all the concerned places should ensure that neither the petitioner nor her husband nor any relatives of the petitioner’s husband are harassed or threatened nor any acts of violence are committed against them. If anybody is found doing so, he should be proceeded against sternly in accordance with law, by the authorities concerned.

We further direct that in view of the allegations in the petition (set out above) criminal proceedings shall be instituted forthwith by the concerned authorities against the petitioner’s brothers and others involved in accordance with law. Petition allowed.

PRADEEP KUMAR SINGH VS STATE OF HARYANA 2008(3) RCR (Criminal) 376

In this case the High Court laid down the law to decide on complaints against the boy by the girl parents in the case of runaway couple:

In this case, a large number of cases of run away couples were decided by this Court with the following directions:

(i)Whenever any intimation is received by the SSP/SP of concerned District regarding the marriage of a young couple with a threat and an apprehension of infringement of the right of life and liberty by the police at the instance of the family members of one of the spouses, the SSP/SP concerned will consider the representation and will himself/herself look into the matter and issue necessary directions to maintain a record of the said intimation under Chapter 21 of the Punjab Police Rules.

(ii) On receipt of above said intimation of marriage by any police officer, necessary directions will be issued to the concerned Police Station to take necessary steps in accordance with law to enquire into the matter by contracting the parents of both boy and girl. The matter regarding age, consent of the girl and grievance of her family will be determined. In the eventuality of any complaint of kidnapping or abduction having been received from any of the family members of the girl generally the boy (husband) will not be arrested unless and until the prejudicial statement is given by the girl (wife). Arrest should generally be deferred or avoided on the immediate receipt of a complaint by the parents or family members of the girl taking into consideration the law laid down by Hon’ble Supreme Court in Joginder Kumar’s case (supra);

(iii)If the girl is major (above 18 years), she should not forcibly be taken away by police to be handed over to her parents against her consent. Criminal force against the boy should also be avoided.

(iv)So far as the threat to the young couple of the criminal force and assault at the hands of the private persons is concerned, it would always be open to the police to initiate action if any substantive offence is found to have been committed against the couple;

(v)In case of any threat to the breach of peace at the hands of the family members of the couple it will always be open to the State authorities to take up the security proceedings in accordance with law;

(vi)It will not be open to the “run away couple” to take law in their hands pursuant to the indulgence shown by the police on the basis of their representation sent to the SSP/SP of the concerned District;

(vii)If despite the intimation having been sent to the SSP/SP there is an apprehension or threat of violation of right of personal life and liberty or free movement, the remedy of approaching the High court should be the last resort;

(viii)In case there is an authority constituted for issuance of marriage certificate as per the law laid down by Supreme Court in Seema’s case (supra) in the concerned districts, the couple of so called `run away marriage’ should get the marriage registered in compliance with the directions of the Supreme Court and a copy of the same should also be forwarded to the police along with the representations or any time subsequent thereto.

(ix)Nothing said here-in-above will prevent the immediate arrest of a person who fraudulently entices a girl with false promises and exploits her sexually as per the statement of the girl.”

AMINDER KAUR VS STATE OF PUNJAB AND ORS  CRM-M 29790 of 2009 (O&M)

The Child Marriage Restraint Act, 1929 was enacted with a view to restrain solemnisation of child marriages.However, subsequently it was amended in 1949 and 1978 in order to raise the age limit of the male and female persons for the purpose of marriage. The Child Marriage Restraint Act, 1929 though restrains solemnisation of child marriages yet it did not declare them to be void or invalid. Since there was a hue and cry in the Society to prevent and provide more deterrent solutions by making stringent provisions to eradicate the evil practice of  solemnisation of child marriages, the present Act i.e. The Prohibition of Child Marriage Act, 2006 came into being in the year 2006. The relevant provisions of the Act are as under :

Definitions – In this Act, unless the context otherwise requires-

(a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;

(b) “child marriage” means a marriage to which either of the contracting parties is a child;

(f) “minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority.”

9. Punishment for male adult marrying a child – Whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.

10.Punishment for solemnising a child marriage – Whoever performs, conducts or directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.

11.Punishment for promoting or permitting solemnization of child marriages –

(1) Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend upto one lakh rupees.

12.Marriage of a minor child to be void in certain circumstances – Where a child, being a minor – (a) is taken or enticed out of the keeping of the lawful guardian; or  (b) by force compelled, or by any deceitful means induced to go from any place; or (c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes,

Interestingly the question that has been raised by the counsel for respondent No.4 was conspicuous by its absence in all the judgments which have been cited by the learned counsel for the petitioners. Therefore, the questions which arise for consideration of this Court are :

(i)In a case of run away marriage where the girl is admittedly minor, who has been enticed away from the lawful keeping of a guardian by her alleged husband against whom a case under

Sections 363/366-A IPC is also registered, whether such a marriage is void in terms of Section 12 of the Act?

(ii)Whether the persons who are in someway party to the such child marriage, are also liable for punishment under Sections 10 and 11 of the Act?

(iii)Whether a person who has enticed/taken away minor from the keeping of lawful guardian and against whom a case under the provisions of IPC has already been registered can claim police protection in the name of his life and liberty?

In this case the facts are not in dispute. Petitioner No.1 was a minor girl being 16 years and 2 months of age at the time of alleged marriage. According to Section 3 of The Majority Act, 1875 every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. According to Section 2 (f) of the Act “minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority. According to Section 2 (a) of the Act, “child” means a person, who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age and according to Section 2 (b) of the Act, “child marriage” means a marriage to which either of the contracting parties is a child. Then according to Section 12(a), the marriage of petitioner No.1 which falls within the definition of child and within the definition of minor being the age of 16 years and 2 months who has been enticed away out of the keeping of the lawful guardian cannot contract the marriage and her marriage shall be null and void.In view of those provisions, I have no other choice but to hold that marriage of petitioners No.1 and 2 which is alleged to have been performed on 21.10.2009 as per Marriage Certificate (Annexure P-1 undated) as void marriage and none of the judgments which have been cited by the learned counsel for the petitioners in support of their case, is applicable to the facts and circumstances of the present case because in the case of Ravi Kumar (supra), the Division Bench had considered only the provisions of Sections 5 and 18 of the Act of 1955 to observe that in case of violation of 5 (iii) of the Act of 1955, the punishment is only 15 days simple imprisonment with fine of Rs.1000/- or both but the marriage is not illegal or void. However, much water has flown thereafter and now for the contravention of Section 5(iii)of the Act of 1955, the punishment under Section 18 (a) has been enhanced to 2 years rigorous imprisonment and/or with fine upto Rs.1 lac or with both. Moreover, the case of Ravi Kumar (supra) was decided on 5.10.2005. At that time, the Act was not in force as it did not receive the accent of President of India and has been notified w.e.f 1.11.2007. Therefore, the learned counsel for the petitioners cannot take the advantage of the observations made in the case of Ravi Kumar (supra). Insofar as the case of Ridhwana and another (supra) is concerned, in that case also this Court had prima-facie found that there is evidence collected by the police that girl was more than 18 years of age but still while parting with the judgment for the sake of argument, it was decided that even if girl is 16 years and 2 months age and has married with her own sweet will, no offence is said to have been committed. This Court had no occasion to refer to the provisions of Section 12 of the Act. Therefore, the ratio laid down in these cases is not applicable. The case of Lata Singh (supra) itself talks about the persons who were major at that time when they got married and on that premise, it was held that if the persons are major and have got married on their own, their life and liberty should not be threatened by the persons who are against their marriage. Hence, the said judgment is also of no help to the present petitioners. In the case of Pardeep Kumar Singh (supra) this Court had laid down as many as nine directions but in none of the directions it has been provided that if the girl is minor and has been enticed away for the purpose of marriage by alleged husband, the said marriage is valid. Hence, I have found that provisions of Section 12 of the Act would apply with full rigour in the present case and the marriage which has been solemnised by petitioner No.2 with petitioner No.1, who is child and a minor, is unsustainable in the eyes of law and is thus, declared as void. The second question involved in this case is that whether the persons, who have performed the marriage are also liable for punishment. In this regard Sections 10 and 11 of the Act provides for punishment for such persons and Section 15 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence shall be cognizable and non-bailable. Therefore, I hold that the person who has performed or abetted the child marriage of petitioner No.1, is also equally liable and for that purpose, I direct the state to take appropriate action by lodging the case against the persons who are responsible for the performance of the child marriage in the present case. In respect of the third question, the petitioners cannot be allowed to take the benefit of the constitutional remedy of protection of their life and liberty on the pretext of their void marriage. The life and liberty of petitioners No.1 and 2 is only endangered and is being threatened by respondent No.4 so long their marriage legally subsists but once their marriage is declared to be void, there is no threat left to their life and liberty. Moreover, such a case where the allegation against the husband is of enticing away minor girl from the lawful keeping of guardian/parents and a case has been registered under Sections 363/366-A IPC, no protection under Section 482 Cr.P.C. can be granted by this Court because in that eventuality police protection has to be granted to a fugitive of law.

FIAZ AHMED AHANGER AND ORS VS STATE OF JAND K 2009 (3) RAJ 692

“In such cases of inter-caste or inter religion marriage the Court has only to be satisfied about two things:

(1) That the girl is above 18 yeas of age, in which case, the law regards her as a major vide Section 3 of the Indian Majority Act, 1875. A major is deemed by the law to know what is in his or her welfare.

(2) The wish of the girl.

In the circumstances, we direct that nobody will harass, threaten or commit any acts of violence or other unlawful act on the petitioner, Chanchali Devi/Mehvesh Anjum and the petitioner’ family members and they shall not be arrested till further orders in connection with the case in question. If they feel insecure, they can apply to the police and, in such event, the police shall grant protection to them.”

Tagged with:

India: Prosecute Rampant ‘Honor’ Killings

Posted in FUNDAMENTAL RIGHTS, GENDER, Honour Kilings, HUMAN RIGHTS by NNLRJ INDIA on July 19, 2010

HUMAN RIGHTS WATCH

(New York) – The Indian government should urgently investigate and prosecute those responsible for the recent spurt in reported “honor” killings, Human Rights Watch said today. The government should also strengthen laws that protect against kinship, religion-based, and caste-based violence, and take appropriate action against local leaders who endorse or tolerate such crimes, Human Rights Watch said.

Murders to protect family or community “honor” have increased in recent months, in the northern states of Haryana, Punjab, and Uttar Pradesh, where unofficial village councils, called khap panchayats, issue edicts condemning couples for marrying outside their caste or religion and condemn marriages within a kinship group (gotra), considered incestuous even though there is no biological connection. To enforce these decrees and break up such relationships, family members have threatened couples, filed false cases of abduction, and killed spouses to protect the family’s “honor.” Some local politicians and officials have been sympathetic to the councils’ edicts, implicitly supporting the violence.

“Officials who fail to condemn village council edicts that end in murder are effectively endorsing murder,” said Meenakshi Ganguly, South Asia director for Human Rights Watch. “Politicians and police need to send these councils a strong message to stop issuing edicts on marriages.”

There are no official figures on “honor” killings because they often go unreported or are passed off as suicide or natural deaths by the family members involved. However, a recent independent study found that at least 900 such murders occur every year in Haryana, Punjab, and Uttar Pradesh states alone. There are no estimates of other injuries, unlawful confinement, or forced marriages suffered by women and girls, or by couples, in the name of “honor.”

Many affected couples elope, fearing reprisals from family members or the community. The wife’s relatives frequently then file abduction complaints, leading the police to arrest the husband, even if the woman denies being abducted. The woman is then forced to rejoin her family, where she may be confined, abused, and sometimes killed. In other cases, couples have been invited back home for rapprochement or tracked down, and then killed.

More vigilant media have recently been reporting such cases, sometimes resulting in even more extreme responses by community leaders, Human Rights Watch said.

On June 21, 2010, in Haryana, after the bodies of a young couple whose relationship had been condemned for violating kinship rules were found hanging from a tree, six family members were arrested for murder.

Later in June, another couple and the bride’s sister were found murdered in Delhi. The two women had both married outside their caste. Three men, cousins of the women, were arrested for the killing.

In Uttar Pradesh on July 6, village leaders ordered upper caste villagers to abduct all young women belonging to families of Dalits (so-called “untouchables”) unless an upper caste Brahmin woman, who had eloped with her Dalit boyfriend, returned home.

Police routinely fail to investigate apparent “honor” killings. In July 2009, Monika Dagar, 21, secretly married Gaurav Saini, 24, who belonged to a lower caste and would thus be unacceptable to her family and community. A week later, Dagar’s relatives arrived at the place the couple was living, accompanied by the police, who arrested Saini on kidnapping charges, despite Dagar’s protests.

He was eventually released but was unable to trace his wife despite repeated appeals for police assistance. In October, Saini was informed that his wife had died of pneumonia; the circumstances were such that Saini believes that she was murdered by her family. The police did not investigate the cause of her death, and Saini has brought a case against them.

“The authorities in these cases give little or no regard to the wishes and concerns of the women at risk,” Ganguly said. “So the women seldom are able to pursue complaints or seek protection from those actually threatening their life and security.”

In April, 4,000 khap panchayat members from Haryana, Uttar Pradesh, Rajasthan, and Delhi gathered in support of five family members who were convicted in connection with the May 2007 murder of Manoj and Babli, married members of the same gotra who had been condemned by a local council in Haryana. A khap panchayat leader was sentenced to life in prison for instigating the killings.

Since the convictions, khap panchayats have demanded amendments to the Hindu marriage laws to include a prohibition on marriages among the same gotra. Some politicians have supported the glorification of the murders as having “honored traditional values.”

The Supreme Court has taken note of the recent spate of “honor” killings and has sought a response from the central government and concerned state governments on steps taken to prevent such incidents.

The Indian government has proposed amendments to the Indian Penal Code to ensure that individuals issuing diktats against couples can be charged with murder. The government proposals also include revoking the 30-day notice period presently required under the Special Marriage Act for inter-community marriages, because that time is misused by families to track down and kill or forcibly separate couples. However, these changes to the law are facing some resistance from political groups citing traditional and customary rights.

“The Indian government should press ahead to strengthen its laws and make community leaders liable for punishment if their edicts incite so-called honor killings,” Ganguly said. “Murder is murder, and customary sentiment should not prevail over basic rights and the laws of the land.”

Legislative changes are only a part of the solution, Human Rights Watch said. The Indian government should ensure that its police officials impartially investigate “honor” killings without bowing to political or other pressure from powerful local leaders. In 2009, a Human Rights Watch report on police reform found that police were often not able to function free from improper political interference. Human Rights Watch also expressed concern that traditional biases have often interfered with the ability of police to enforce laws objectively.

The Indian government should, through public campaigns and the media, promote the right of individuals of legally marriageable age to marry persons of their choice, without having to fear violence or other abuse, Human Rights Watch said. The government should instruct police to protect those in consensual relationships who fear family or community reprisals.

“Police should be held accountable when they turn a blind eye and fail to investigate alleged ‘honor’ crimes,” Ganguly said. “The unholy nexus between caste, politics, and impunity should be broken.”

http://www.hrw.org/en/news/2010/07/16/india-prosecute-rampant-honor-killings

Tagged with:

Ensuring justice to the victims of injustice

Posted in FUNDAMENTAL RIGHTS, GENDER, Honour Kilings, HUMAN RIGHTS by NNLRJ INDIA on July 12, 2010

S VISWASNATHAN IN THE HINDU

The Indian media have a vital responsibility in enabling society to combat and eliminate social evils. ‘Honour killings’ are a particularly barbaric social practice targeting those who defy the traditional ban on ‘same gotra’ marriages or marry out of caste. The central government has decided to “consult” the States on steps to put an end to the spate of such killings in several parts of the country. A Group of Ministers will go into the issue and suggest changes in the law. It has been reported that although Cabinet Ministers agreed on the need to stop the killings, they were divided on which laws needed to be amended.

This is not an issue on which State rights are at stake because there is no question of a civilised society, governed by the rule of law, tolerating such savagery in the name of tradition. The challenge is the existence of ‘khap panchayats,’ which provide social sanction for the savagery. In Haryana, which probably accounts for the largest number of ‘honour killings,’ both the Opposition and the ruling Congress are one in defending the institution. Chief Minister Bhupinder Singh Hooda has declared that marriage within the same gotra was not part of the tradition in Haryana. He claimed that the khap or community panchayats were not responsible for the killing of couples marrying within the same gotra. He was glossing over the social truth that it is the ruling given by the khap panchayats nullifying the marriages within a gotra that leads to the killing of girls and boys, invariably by brothers or uncles of the girls. Mr. Hooda’s principal political opponent, former Chief Minister and President of the Indian National Lok Dal Om Prakash Chautala, did not lag behind. He was also seeking a change in the law. He met Union Home Minister P. Chidambaram and pressed for amendments to the Hindu Marriage Act with a view to banning “the same gotra marriage.”

(The law referred to is The Hindu Marriage Disabilities Removal Act, 1946. It is an act to remove certain disabilities and doubts under Hindu Law in respect of marriages between Hindus; marriages between persons of same gotra or prevara. The Act says: “Notwithstanding any text, rule or interpretation of the Hindu Law or any custom or usage, a marriage between Hindus, which is otherwise valid, shall not be invalid by reason only of the fact that the parties thereto (a) belong to the same gotra or (b) belong to different sub-divisions of the same caste.”)

A Congress M.P. from Haryana, Naveen Jindal, swore by the khap panchayats, reportedly explaining that he and his entire family respected their “years old traditions and rituals.” In Punjab, Rajasthan, Uttar Pradesh, Bihar and Jharkhand, in which the practice of ‘honour killings,’ whether based on khap panchayats or otherwise, has been reported, the situation might be somewhat different from Haryana’s. However, given the proximity of the caste leaders to the power centres in several States, their response to the idea of changing laws woud be an interesting subject for the media to study, report, and comment on.

NGO petition

In respect of amending certain laws, the central government has taken the lead from the orders of the Supreme Court of India to eight State governments, besides the Centre, to submit reports on the steps taken to prevent the inhuman practice of ‘honour killings.’ The orders of a Division Bench of the Court followed a petition filed by Shakti Vahini, a non-governmental organisation, under Public Interest Litigation. Shakti Vahini, which had been working in the field of women’s rights and related issues, told the court that apart from ‘honour killings,’ which was an extreme form of reaction, women had to confront long-term, low-level physical abuse and bullying as a punishment for bringing the ‘family honour’ to disrepute. Such abuses could include torture, mutilation, rape, forced marriage, and imprisonment within the home, according to the petitioner. It also pointed out that when the State remained a mute spectator, there was fear among the youth and young couples who were already married or were planning to get married. The petitioner wanted the Supreme Court to lay down guidelines for law-enforcing officials on the pattern of the guidelines for combating sexual harassment at the workplace.

There is no evidence to show that the killer panchayats have been stopped in their tracks. At the same time, the movement against their barbaric diktats has gained momentum. Human rights organisations, social and political activists, and youth and women’s organisations have stepped up their campaigns. These, together with what has begun to assume the contours of a national media campaign, have created greater awareness of the rights of young men and women to free choice and dignity. Almost all daily newspapers and magazines carry detailed reports with interviews and opinion pieces on the subject. Sadly, there is no matching endeavour among administrators and law-enforcement authorities in the affected States to keep pace with the crimes and help stop the atrocities. Here is an opportunity for the media to step up their campaign against the social evil in a big way. They can do this through more detailed and comprehensive coverage on the ground and a more systematic attempt to mould public opinion, especially in the States where the khaps are at their deadly work.

readerseditor@thehindu.co.in

http://www.hindu.com/2010/07/12/stories/2010071251340900.htm

Tagged with:

GoM to look into ‘honour killings’

Posted in FUNDAMENTAL RIGHTS, GENDER, Honour Kilings, HUMAN RIGHTS by NNLRJ INDIA on July 11, 2010

The Union government on Wednesday decided to consult the States and set up a Group of Ministers (GoM) to suggest changes in the law to deal with the matter.

United on the need to deal with the pernicious practice of “honour killings,” but facing division in the Cabinet on how to tackle the issue, the Centre on Wednesday decided to consult the States and set up a Group of Ministers (GoM) to suggest changes in the law to deal with the matter. Information and Broadcasting Minister Ambika Soni said after a Cabinet meeting: “We do feel the pressure to bring amendments [to the law] in the monsoon session of Parliament. There is not only social pressure [and] media pressure, but within our own Cabinet and party too; we feel the so-called honour killings have to be brought under the ambit of the law of the land.”

At the Cabinet meeting, there was agreement on the fact that the current laws simply cannot deal with such killings. But that was it. Home Minister P Chidambaram’s fervent plea to expeditiously amend the Indian Penal Code, the Indian Evidence Act and the Special Marriages Act in the monsoon session did not find favour with many of his Cabinet colleagues. Mr. Chidambaram’s point was that the government could not afford to waste time in more discussion, unless it was prepared to see many more girls summarily killed. But his colleagues felt that it was too complex an issue to be dealt with hastily, especially as ‘khap panchayats’ — which exerted pressure to act against the marriage of young men and women of the same ‘gotra,’ village or outside the caste — often had social sanction.

Minister for Youth and Sports M.S. Gill pointed out that there could be problems in implementing any changes in the law, given that the Centre was dependent on the States to do so. He wanted to know whether when a whole congregation of villagers was involved in issuing orders to kill someone, all of them could be held accountable.

Others who spoke of the need to exercise caution included Surface Transport Minister Kamal Nath and Human Resource Development Minister Kapil Sibal, who suggested some changes in the law to deal with such killings specifically. Sources in the government told TheHindu that the crux of the changes proposed focus on placing the onus of proving innocence on the “khap panchayat” members — and this includes not just the charge of murder, but of being an abettor, or having instigated any other sort of humiliation, including stripping, social boycott, etc. The amendments, if made into law, would also make all ‘khap panchayat’ members associated with a death accountable.

http://www.thehindu.com/news/national/article505916.ece

Tagged with:

Legal tangle

Posted in FUNDAMENTAL RIGHTS, GENDER, Honour Kilings, HUMAN RIGHTS, RIGHT TO LIFE by NNLRJ INDIA on July 10, 2010

INDIAN EXPRESS

The home ministry proposes, and now a group of ministers may dispose. P. Chidambaram’s suggestion that the IPC, the CrPC, the Evidence Act, and marriage laws be adapted to deal with the spurt of honour killings that have recently shamed the nation, is now being pulled apart by his more cautious colleagues.

Honour killings are a complicated stew of sexual and social anxieties — as we know only too well by now, khaps are medieval community structures that believe intra-gotra marriage is a crime punishable with death, and their verdicts are enforced through intimidation, degradation and other forms of control, and often actual violence. The home ministry’s proposed amendments were an acknowledgement of this special nature of honour killings, and an attempt to extend protection to individuals against the collective might of these community guardians. It suggested that khap panchayat members would now have to prove their innocence in case of a death, and that enforcement agencies would have the power to arrest and act against community leaders who may be spurring social boycotts. It also suggested amending the Indian Evidence Act and doing away with the 30-day notice requirement and amending the Special Marriage Act, typically the critical window period when couples are harassed by their families. However, others in the cabinet have objected to the proposal’s expansive provisions, saying these could be used for “witch-hunts” and vindictive agendas, and place unwarranted stress on all khap panchayat members irrespective of whether they were complicit in the killing. Some ministers pointed to the fragile sensitivities of the community, saying that blunt legal tools shouldn’t roll over social customs.

However, the vexing question is not whether honour killings need a dedicated legal instrument or not. Police and administration tend to be reluctant to take on this system of rough justice because politics thrives on these community solidarities. If this delay is about refining the legal changes to ensure that there is no collateral damage or misuse, that’s entirely sensible. However, electoral inconvenience shouldn’t be an excuse to let the issue slide.

http://www.indianexpress.com/news/legal-tangle/644612/0

%d bloggers like this: