Marriage and the law (Hindu): India
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Marriage within the same gotra- I
From the archives of The Times of India 2007, 2009
Same-gotra marriage legal, court had ruled 65 years ago
Wavering Netas Should Know About This Bombay HC Verdict
Ronojoy Sen | TNN
From the archives of The Times of India 2007, 2009
New Delhi: The sustained effort by aggressive khap panchayats and their influential political backers to force parties to have a rethink on samegotra marriages is patently illegal. Sixty-five years ago, in 1945, the issue was settled by the Bombay High Court which categorically declared samegotra marriages were legal. And that’s been the law of the land since.
In the wake of the khaps’ defiance of the law, not only have top politicians like Om Prakash Chautala and Naveen Jindal caved in — no doubt to retain the political support of these medieval organizations — but national parties like BJP, too, have been wavering. The BJP on Thursday talked about building ‘‘consensus’’ on the issue, indicating there was scope for modifying the legal view on same-gotra marriages. Even thecongres is said to be keeping its cards close to the chest.
So, even as khaps spit fire at courts for holding such marriages legal, it is instructive to learn about the rigour with which two reputed judges went into the issue in 1945, much before Hindu personal law was codified. They consulted the writings of leading experts and delved into Hindu scriptures to arrive at their verdict.
The case, ‘Madhavrao vs Raghavendrarao’, involved a Deshastha Brahmin couple and the two-judge bench comprised Harilal Kania, the first chief justice of independent India, and P B Gajendragadkar, who became CJI in the 1960s. The essence of the case was whether ‘sagotra’ marriage or marriage within the same gotra was valid under Hindu custom.
The court initially relied on a landmark 1868 case where the Privy Council had stated, ‘‘under the Hindu system of law, clear proof of usage will outweigh the written text of the law’’. However, a custom which was at variance with the written text of Hindu law, had to be ancient, certain and reasonable if it was to be recognized by the court.
Same-gotra marriages-II
SC throws out PIL seeking ban on same-gotra unions
TIMES NEWS NETWORK
From the archives of The Times of India 2007, 2009
New Delhi: The Supreme Court on Monday refused to entertain a PIL seeking amendment to the Hindu Marriage Act to ban same ‘gotra’ marriages, a plea that was earlier raised by khap panchayats that got support from political circles in Haryana.
A vacation bench comprising justices Deepak Verma and K S Radhakrishnan told petitioner Naresh Kadyan’s counsel K T S Tulsi that his client would do better to move the high court concerned which had the power and jurisdiction to decide the issue.
When Tulsi argued that the issues raised in the petition had a pan-Indian appeal, the bench said the HC could decide such matters. This made Tulsi to request withdrawal of the PIL. The bench allowed that with liberty to the petitioner to raise the issue afresh before the HC. Though the SC refused to entertain the PIL on amendment to HMA, another PIL by NGO ‘Shakti Vahini’ was filed in the apex court seeking protection for couples facing threat from khap panchayats for marrying against prevailing social norms.
Seeking a direction to the Centre and the states of Punjab, Haryana, UP, Rajasthan, Jharkhand, Bihar, Himachal Pradesh and Madhya Pradesh, where honour killings have been practised in one form or the other, the petitioner NGO said it was time the governments at the Centre and the states thought of taking preventive measures against this social evil.
“Such crimes include battery, torture, mutilation, rape, forced marriage, imprisonment within the home and even murder. These crimes are intended to protect the family honour by preventing and punishing women for allegedly violating community norms of behaviour, particularly sexual behaviour. Women have been abducted, arrested or raped and are often blamed for shaming their families. Reasons for honour killings can be as trivial as talking to a man, or as innocent as suffering rape. These crimes are often collective and premeditated,” it said.
The NGO said states should constitute a special cell in each district where couples could approach for safety that should lead to active prosecution of those responsible for honour killings.
Drawing The Line
A vacation bench told petitioner that it would do better to move the HC concerned which had the power and jurisdiction to decide the issue Another PIL was filed by NGO in SC seeking protection for couples facing threat from khaps for marrying against prevailing social norms NGO said it was time the Centre and the states thought of taking preventive measures against this social evil
