SC Allows 26-Yr-Old Woman, Married Off Without Her Consent, To Move To Any Place As Per Her Choice & Desire [Read Order]

The Supreme Court bench of Chief Justice Dipak Misra, Justice DY Chandrachud and Justice AM Khanwilkar on Monday disposed of the habeas corpus writ petition filed on behalf of a Karnataka-based 26-year-old woman, allegedly married off without her consent, with the direction that she would be at liberty to move to any place as per her choice and desire, and that there may not be any impediment from any quarters.

“...Needless to say, when she is a major, she is entitled to take up any job and pursue the same as she intends to do...The parents of the petitioner will hand over all the necessary documents (Aadhaar card, passport etc.) relating to the petitioner...The State of Karnataka is directed to provide adequate security to the petitioner so that she can travel to Bangalore. If there will be any threat perception, she can make a representation to the concerned Assistant Commissioner of Police of the area...,” held the bench after interaction with the petitioner personally present in court.

The bench noted the assertion of the husband and the family, conveyed by senior counsel Basava Prabhu Patil, that none of the family members has ever created any obstruction in the path of the petitioner and will not do so in future.

The bench also took note of the affirmation that neither the parents, the husband nor any family members had remotely any intention to harass the petitioner in any manner and, therefore, they do not have any reluctance in returning all the necessary documents to the petitioner.

The bench, on Monday, however, clarified that “the above directions are only relatable to the present habeas corpus petition and if any dispute arises with regard to any matrimonial or family matter, the same shall be adjudicated on their own merits”.

In the context of the observation by the bench at the previous hearing to pursue a civil action for the nullification of the marriage, senior counsel Indira Jaising submitted that in circumstances as in the present petition, a decree annulling the marriage is not required.

On Monday, she relied on the 1988 apex court judgment in Yamunabai v. Ranantrao Shivram Adhav, wherein it was held that a marriage covered by Section 11 of the Hindu Marriage Act of 1955 is void-ipso-jure, that is, void from the very inception. Such a marriage has to be ignored as not existing in law at all. The court had further ruled that a formal declaration of the nullity of such a marriage is not a mandatory requirement though such an option is available to either of the parties to a marriage.

Jaising also cited the judgment of the Supreme Court in Deoki Panjhiyara vs Shahshi Bhushan Narayan Azad (2012), wherein the distinction in the light of the ratio in Yamunabai was explained- “...Though Section 11 of the aforesaid Act gives an option to either of the parties to a void marriage to seek a declaration of invalidity/nullity of such marriage, the exercise of such option cannot be understood to be in all situations voluntarily. Situations may arise when recourse to a court for a declaration regarding the nullity of a marriage claimed by one of the spouses to be a void marriage, will have to be insisted upon in departure to the normal rule...”

Background 

The petitioner had sought the following prayers in the petition-

i. Annul/Nullify the forced marriage between the Petitioner and Respondent No. 6 conducted on 14.03.2018;

ii. Declare and hold that Section 5(ii) and Section 7 of the Hindu Marriage Act, 1955 are unconstitutional, to the extent it fails to prescribe/ensure free and valid prior consent of the parties to a marriage, in as much as the same are discriminatory, unreasonable, arbitrary and hence in violation of Article 14 of the Constitution;

iii. Declare that Section 5(ii) and Section 7 are violative of the Constitution and as such unconstitutional as the same impinge upon and denude the Petitioner from effectively exercising her fundamental right to choose her partner/spouse, which is violative of Article 21 of the Constitution.

At the previous hearing, the bench had refused to extend the scope of the writ petition to accord an express interpretation that the Hindu Marriage Act of 1955 mandates prior consent of both parties to mthe arriage as a prerequisite for a valid marriage.

“Section 12(1)(c) provides that where the consent of a party to a marriage was obtained by fraud or under force, the marriage may be voidable…that means consent is necessary…consent procured by fraud is on the same footing as the lack of consent…Section 5(ii)(a) postulates that consent is essential,” Justice Chandrachud had noted.

“If marriage was solemnized without consent, then civil action may be pursued to declare the marriage null and void…marriage, where consent is obtained by fraud, is less serious than where there was no consent at all…”, the Chief Justice had added.

“It is a general proposition that a woman has the right to choose her partner for marriage…but there are no judgments on the necessity of consent…Sections 5, 7 and 12 need to read together and interpreted…,” Jaising had persisted.

“The interpretation will be made when lis arises…if the family court refuses to declare the marriage null and void for lack of consent and the High Court agrees, then we shall interpret…,” the Chief Justice had responded on that occasion.

Read the Order Here