Consent inherent in Hindu Marriage Act, says Supreme Court
NEWDELHI: There is no need for an express declaration t hat a woman’s consent is necessary for marriage as it is inherent in the Hindu Marriage Act, the Supreme Court said on Wednesday. In response to a petition field by a 26-year-old Karnataka woman, who has accused her parents of marrying her off against her will, a bench of the apex court asked her to approach a civil court for remedy.
The woman is the daughter of a politician in Karnataka. The bench led by Chief Justice Dipak Misra, however, asked Delhi police to provide security to the woman, whose case resembles that of Hadiya Jahan, a Kerala woman whose marriage to a Muslim man had sparked a debate over personal freedom in India.
“There is no need for a judicial declaration. A marriage that takes place without the consent of the bride is subject to nullification of the marriage. It stands on the same footing as when there is no consent,” said bench member, Justice DY Chandrachud, stating that a forceful marriage or a fraudulent one without voluntary consent was invalid.
“If she does not desire to go to the matrimonial home, that is her choice. If her husband tries to bring her forcefully, then the writ for habeas corpus shall lie. Now that the marriage has been solemnised, she will have to take suitable recourse in accordance with the statutory provisions. We can only accord her protection as an interim measure, the CJI said.
The court asked additional solicitor general Tushar Mehta to ensure her security at a Delhi women’s home where she has put up after fleeing from her home in Bengaluru.
In her petition, the woman also sought a directive to a college to grant her admission and let her complete her Mtech, which she was forced to drop at the instance of her family. The court will hear the matter again on May 5.
The woman said her right to marry has been “brazenly trampled (upon) by her family members, who in connivance with each other have coerced, threatened, blackmailed, harassed, pressurised, abused, compelled and tricked” her in into getting married against her “free consent”. She has pointed out two provisions of the Hindu Marriage Act, 1956, insisting the law is silent on willful marriage. Through her petition, she said, she wanted to highlight the plight of women who are forced into marriages against their wishes.
Her counsel, senior advocate Indira Jaising and advocate Sunil Fernandes, spoke of the woman’s complaint to police on her wedding night. “She wanted to be rescued. The police official had even come and interceded with her family. I have strong evidence to show that the marriage was solemnised without her consent,” the counsel said. The bench referred to its recent Hadiya verdict and said it had reprimanded the Kerala high court for invalidating the marriage and overturned the lower court’s verdict.