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Right to choose life partner is a fundamental right

by | 12 Aug, 2018 | Criminal Law

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Every person has the right to choose his life partner and it is a fundamental right. My friend loves his colleague, and they have decided to get married. They belong from a different community, therefore, cannot marry due to the customs of their society.  He is terrified because his uncle warned him that if he marries with his friend, then he should be ready to face serious consequences. Sir, this doesn’t seem right, and no one can force them to retract from their decision. Please tell me what they should do?

Question from: New Delhi

He should not be afraid of the threats giving by his uncle. They have attained the age of majority for the marriage as required under Section 5(iii) of the Hindu Marriage Act 1955 (HMA). According to Section 5(iii) of HMA, the marriageable age for bridegroom is 21 years and 18 years for a bride. Thus they can solemnise their marriage without consent or permission of parents.

The Hindu Marriage Act recognises the inter-caste marriage. Hence, they have the right to solemnise their marriage under HMA, however, they belong to the different Hindu community. A marriage between two Hindus is valid under section 5 of HMA regardless of their caste or community.

Right to choose life partner is a fundamental right

Recently, the Supreme Court held in Shakti Vahini v. Union of India, (2018) 7 SCC 192 held that the right to select a life partner is a fundamental right. The court held that right to marry a person of one’s choice is a fundamental right under Article 21, 19(1)(a) and 14 of the Constitution of India. Freedom of speech and expression coupled with life and personal liberty manifest the right to choose each other as life partners.

Once the fundamental right is inherent in a person, then no one can scuttle such right by leaning on any kind of philosophy, moral or social, or self-proclaimed elevation.

Shakti Vahini vs. Union of India (2018) 7 SCC 192

Thus his uncle has no right to posing such threats. He is committing an offence under section 504/506 of the Indian Penal Code. Your friend may take legal recourse against him and

In Lata Singh v. State of U.P., (2006) 5 SCC 475; the Supreme Court has expressed its concern about growing incident of threats and violence against inter-caste marriage. The Court held that:

“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 inter-religious marriage.”

Take protection order from the High Court

In the current scenario, your friend should get a protection order. The court shall, in the protection order, direct the local administration to provide adequate security. Thereafter, your friend can solemnise the marriage under police protection on the dictum of Lata Singh case. The Supreme Court has directed as:

“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 is not harassed by anyone nor subjected to threats or acts of violence, and anyone 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.”

Lata Singh v. State of U.P., (2006) 5 SCC 475

Again in the Shakti Vahini case, the Supreme Court has reiterated about the protection of such a couple as:

“The District Magistrate/Superintendent of Police must deal with the complaint regarding threat administered to such couple/family with the utmost sensitivity. It should be first ascertained whether the bachelor-bachelorette are capable adults. Thereafter, if necessary, they may be provided logistical support for solemnising their marriage and/or for being duly registered under police protection, if they so desire.

After the marriage, if the couple so desire, they can be provided accommodation on payment of nominal charges in the safe house initially for a period of one month to be extended on monthly basis but not exceeding one year in aggregate, depending on their threat assessment on a case-to-case basis.”

Your friend should move a writ petition before the High Court under Article 226 of the constitution for getting a protection order. He should file such a petition if his uncle still threatening him. The court can pass a protection order if the petitioner is receiving apparent threats in the exercise of his legal right. Right to choose a life partner is a fundamental right so he can move a writ petition for the implementation of his right.

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