Karnataka woman moves SC after family threatens her over marriage

New Delhi: The Supreme Court on Wednesday refused to consider a plea by a 26-year-old woman from Kalaburagi to put in a valid consent as a condition for matrimonial alliance under the Hindu Marriage Act. The top court, however, directed the Delhi Police to provide her protection as she contended that she escaped on April 5, 2018, from the clutches of her family, who forcefully got her married to a man on March 14, 2018.

The woman, pursuing M Tech from Bengaluru, claimed she had been threatened by her brother of “rape, acid attack and murder.” She claimed that the police did not come to her rescue and she apprehended threat from her own family. The woman said she wanted to marry outside her caste and was afraid that she could end up becoming another victim of honour killing.

Senior advocate Indira Jaising put forth the plight of the petitioner before the top court. She challenged the constitutional validity of Sections 5 (ii) and 7 of the Hindu Marriage Act for being violative of fundamental rights of equality and life and liberty. In Hadiya case, the girl wanted to affirm her marriage but here there was no consent, she said.

Indira claimed that the condition of marriage, as well as ceremonies under the law, do not have any provision for the explicit consent of the girl. “We will not get into provisions of the law. We will not declare it as illegal. If she does not want to go her matrimonial home, that is her choice. If marriage has taken place, she has to go to civil court to get it annulled. Till then, we will protect her,” the bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, said.

On this, Indira said, “The marriage here was without her consent. There is a lack of clarity on it.” “That can’t be done under the writ jurisdiction. That can be a ground for moving an application under Section 13 (divorce),” the bench said.

The bench also pointed out that Section 12 (c) clearly stated if the consent was obtained through force, the marriage would be voidable. “The fact there is a provision on consent being forced indicates that the consent is mandatory,” the bench said.

The court also said it cannot declare ceremonies as ultra vires. Indira, for her part, insisted that there was no authority on the subject as ceremonies are not codified. “The interpretation of the law will arise when there is a lis (legal question),” the bench said while assuring the counsel that nobody can compel the petitioner, under the protection of Delhi Commission for Women, to go to her husband.

The court directed Additional Solicitor General Tushar Mehta to direct the Delhi Police to provide protection to the woman. It directed a copy of the petition to be served to Additional Advocate General Devadatt Kamat for seeking response of her family as well as her husband, whose identity, the court directed to be kept a secret on her request.

“Though many a prayer has been made, at the very outset, we clearly state that it shall be confined to entertaining the prayer as a writ of habeas corpus as far as the petitioner and grant of security to her is concerned. Apart from the aforesaid aspects, no other contention or relief shall be entertained afterwards,” the bench ordered, putting the matter for further consideration on May 4.