Consent inherent in Hindu marital law: SC

New Delhi: The Supreme Court on Wednesday refused to annul a 26-year-old girl’s marriage solely on the grounds that it was performed without her consent, but directed the Delhi police to grant her protection from her family as she feared “honour killing”.

The court was told the girl’s marriage was performed at Gulbarga in Karnataka on March 14 this year without her consent into a politician’s family. As she refused to live with her husband, she faced a threat to her life from her family and she had come to Delhi and was staying in the custody of the Delhi Commission for Women.

A three-judge bench of Chief Justice Dipak Misra and Justices A.M. Kanwilkar and D.Y. Chandrachud told senior counsel Indira Jaising, who argued for the girl, that under Hindu law a marriage cannot be annulled for the lack of consent. The petitioner would have to seek remedy in a civil court for divorce, and lack of consent can be a ground for seeking divorce, which is based on facts, the CJI observed.

The bench, while restricting the scope of the petition to providing security, asked the Delhi police to provide her protection during her stay, and asked police officers to serve a copy of the petition to the girl’s parents, brother and husband for their response.

Referring to the plea by petitioner “X” (name withheld by the court) that there should be a declaration from the court that a marriage performed without consent was invalid, the CJI noted that “any marriage performed with consent obtained by coercion or force or fraud can be a ground for divorce. It cannot be a ground for annulment of marriage and the provision will not become ultra vires”.

The CJI, citing the “love jihad” Hadiya ruling delivered on Monday, told the counsel: “Only recently we have held that the Kerala high court entertaining a writ petition cannot annul a marriage. While so, how can we entertain your prayer? We can only grant police protection.”

Justice Chandrachud noted that once the law says that if consent is obtained by coercion the marriage becomes void, it is implicit that there must be consent for a marriage. “We can’t declare a provision unconstitutional merely because you say you did not give consent to the marriage,” he said.

The counsel had argued that there was a lack of clarity in the law that the woman has to give her consent to the marriage and the court should clarify this provision. She noted that even prior to the marriage, both the bridegroom and her family were informed that she was not consenting to the marriage. On the date of marriage, she sent SMSes to the additional superintendent of police seeking his intervention. Though the police came, she was threatened by the family not to oppose the marriage. She came out of the matrimonial home within three days of marriage and had taken shelter in Delhi, the counsel submitted.

The CJI told the counsel: “If you (petitioner) don’t want to go to Bengaluru to stay with your family, nobody can compel you. The court will not be an impediment for her to stay in Delhi... let her go wherever she wants to go.”

The petitioner said her fundamental right to choose her life partner had been brazenly trampled upon by her family members, who in connivance with each other had coerced, threatened, blackmailed, harassed, pressured, abused, compelled and tricked her into getting married to Respondent No. 6 (name withheld), against her wishes and free consent.

The petitioner also challenged the constitutional validity of Sections 5(ii) and 7 of Hindu Marriage Act 1955, in as much as “valid consent” is absent, and the same are in violation of Articles 14 and 21 of the Constitution, arbitrary and discriminatory in nature. The petitioner said she had escaped from the clutches of her abusive family in Karnataka and had reached Delhi. She sought a direction to the authorities to provide her adequate security in order to safeguard her life, liberty and limb, which was under threat from her own family members, who are politically active in Karnataka. She said she feared that she might become a victim of “honour killing” as she wanted to get married to a person outside her caste. The bench posted the matter for further hearing on May 4.