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The autonomy to choose one’s partner – columns

In October last year, soon after S informed the district magistrate’s office in Lucknow that she wanted to get married under the Special Marriage Act (SMA), she received an unexpected invitation to visit the local police station.

The police met her, her partner and her father to conduct an “inquiry”. Why get married in court? Was the father fine with her decision? Fortunately for S, he was, even though the Act does not require parental permission, only consenting adults.

“In Uttar Pradesh, it is routine to call couples and often their parents to the police station, particularly in cases of inter-religious marriages,” said Lucknow-based lawyer Renu Mishra. Enacted in 1954, the SMA is for those who wished to marry outside their religion’s personal laws and customs, caste and, often, parental consent.

But the Act requires a 30-day notice period, during which time the marriage application with names, addresses and phone numbers are on public display. It’s this provision that is under challenge in the Supreme Court (SC) for violating an individual’s right to privacy. “The personal laws and practices of Hindus and Muslims don’t require a notice period, so why should it be there in a secular law,” asks senior advocate Kaleeswaram Raj, lead counsel in the petition. The provision leaves couples marrying against their parents’ wishes vulnerable to family reprisal. It’s also a red flag for vigilante groups. “This procedure has unintentionally facilitated the use of violence against the couple for religious and fanatic reasons,” said Kaleeswaram.

Earlier this year, Kerala decided to stop publishing marriage applications online after a few groups and individuals posted details of as many as 120 interfaith couples on Facebook claiming that they were a part of a “love jihad” conspiracy.

The original intent of providing 30-day notice, notes the 2018 Law Commission report, might have been to ensure transparency. But online access to such notices or over-eager registrars taking it on themselves to inform parents about the couple, have “defeated the purpose” of the Act, often leaving couples with having to choose between a runaway temple marriage or conversion, notes the report. Not every marriage meets with societal approval, but this does not make it wrong. Marriages within the same gotra are banned by extra-constitutional khap panchayats, leading to so-called “honour” killings and social boycott.

But at the heart of the issue is the autonomy of adult daughters in a patriarchal society where arranged marriages remain the desirable norm. Memories of the 26-year-old Hadiya, and the Kerala High Court’s observation that “as per Indian tradition the custody of an unmarried daughter is with the parents, until she is properly married,” remains. Hadiya’s marriage was eventually restored by the SC, but serves as a cautionary reminder that Indian society, including sections of the judiciary, is not prepared to grant daughters independence. Not when it comes to their choice of partner.

Namita Bhandare writes on gender

The views expressed are personal

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