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A girl is not cattle; denying right to choose spouse based on caste violative of fundamental rights: Himachal Pradesh High Court


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Anta Assamey
A girl is not cattle; denying right to choose spouse based on caste violative of fundamental rights: Himachal Pradesh High Court
Himachal Pradesh High Court
Published on : 23 Feb, 2021 , 9:23 am

Denying a person right to choose spouse based on caste is violative of fundamental rights, the Himachal Pradesh High Court recently observed while underscoring that women have the right to choose their spouse and lead their lives as they please (Sanjeev Kumar v. State of Himachal Pradesh).

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Suppressing or oppressing freedom of an individual, that too which is contrary not only to his/her spiritual and religious rights but also constitutional rights, is to be deprecated, the Court said.

"We are living in a State governed by the Constitution and discrimination on the basis of caste by denying of right to choose spouse, is in violation of Fundamental Rights guaranteed under the Constitution of India," the Court said.

Justice Vivek Singh Thakur, was dealing with a petition filed by one Sanjeev Kumar (petitioner) to get the production/custody of his partner, Komal Parmar who has detained by her family members against her wishes, so as to prevent solemnization of their marriage.

It was informed that the family members of Komal were opposing the marriage and threatening the couple, along with the Petitioner's family because Kumar was from a lower-caste background and Komal was from the upper-caste (Thakur) family.

It was contended by the petitioner that after submitting the marriage application on February 1, the couple decided to live-together and took a temporary shelter at Palampur.

Later, when the family members of Komal started threatening the couple, they were compelled to come back to their home town after which Komal was 'detained' by her family. Later, within the consent of the court, she was sent to Nari Niketan.

Furthermore, the Police Report which was submitted before the court disclosed that the father of Komal had produced an OPD Slip February 3, 2021, scribed by Mental Health Specialist and he also contended that Komal had not married anyone and was not in a condition to make a statement."

The respondents contended that Parmar was not under any illegal confinement or detention. It was submitted that though "there have been changes in social and moral values and our society is recognizing freedom of every citizen, but even then such liberties cannot be stretched beyond limits nor can such freedom be made a weapon to destroy our fundamental values and social establishments like families."

Parmar rebutted the arguments concerning her mental health stating that the opposition for marriage from her family was due to the difference in caste and rest submissions by her father were nothing but an attempt to defer the solemnization of marriage by hook or crook.

"Ms. Komal has refuted the allegations of her ill mental health with further submission that she was slapped brutally on 2.2.2021 at Jawalaji and thereafter she was beaten and administered some injection and forcibly taken to Mental Health Specialist on 3.2.2021 and 10.2.2021. She has further stated that she is not having any mental health problem and that she is a student and has appeared in BBA Final Year Examination a few months ago." the Court noted.

The Court accordingly, observed that "existence of God is not only in living creatures but is also in non-living things and, thus, no one is to be discriminated on account of sex, caste, creed, race, color or financial status"

The Court also adverted to ancient scriptures to highlight the agency enjoyed by women and how they were entitled to marry a person of their choice.

"To my little knowledge, oldest example of marrying a person of choice is marriage of Sati with Lord Shiva, which was solemnized in defiance and against wishes of her father King Daksha Prajapati. Another more than 5000 years old example of choosing the spouse according to choice of the girl is of Rukamani and Lord Krishna," the Court said.

Unlike ancient western thought, wherein a female was supposed to be created by God from rib of a man for enjoyment of man, in India, a female was always considered not only equal but on higher pedestal than male since Vedic Era, the Court further said.

"It is to be remembered that a girl is not a cattle or non-living thing but a living independent soul having rights, like others, and, on attaining the age of discretion, to exercise her discretion according to her wishes," the judgment emphasised.

Leaving apart the history and ancient values of Indian society, we all are living in a country governed by constitutional mandate and ‘Rule of Law’ is to prevail in all eventualities, the Court added.

The Court significantly, noted that caste discrimination is a blatant attack on the fundamental rights enriched under the Indian Constitution.

It also noted that it was not a case where petitioner was asking for a normal custody, but a case seeking "production of Komal Parmar in order to ascertain her ‘Free Will’."

"Komal Parmar is a grown-up girl of 21 years of age having no infirmity or incapacity to understand each and every aspect of life and to take decision and she has a right to exercise her discretion to choose spouse and to decide the place of her residence. Ms Komal Parmar is major, capable of taking her own decisions and is entitled to the right recognized by the Constitution to lead her life exactly as she pleases," said the Court.

Reliance was place on the decision of Shafin Jahan v. Asokan K.M. & others, where the Supreme Court held that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal "will destroy the individualistic entity of a person."

"Parents, relatives and friends cannot force an adult to act according to their whims and wishes by suppressing the wish and desire of an individual," the Court said.

Accordingly, it directed that Parmar be allowed to choose her spouse and reside wherever she wants.

The Court also ordered local authorities to ensure safety of lives and property of petitioner and his family and also to provide rapid help/ assistance to Komal, whenever required.

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