In Indian society, a woman’s right to make decisions in regards to her sexual and marital relationships is routinely denied and discouraged in favor of her family and community’s perceived right to control her body. When a woman steps outside of strictly imposed parameters for what her family and community deem appropriate, such as by choosing to have premarital sex, pursuing an inter-caste or inter-religious marriage, or leaving an abusive partner, she often meets violent opposition and incessant discrimination in the name of “honor.” The ramifications for defying social norms are not limited to the women themselves, but in many cases extend to their partners and families as well. This type of harassment against a woman’s loved ones is a tool of social control to encourage the woman to obediently adhere to the dictates of social norms – if not for her own sake, the logic goes, then for the sake of her loved ones.
Starkly gendered violations of a woman’s right to sexual autonomy are commonplace across India. AALI’s research in six states – Haryana, Kerala, Madhya Pradesh, Maharashtra, Uttar Pradesh, and West Bengal – reveals that infringements on a woman’s right to choice are not limited to any specific region or cultural ideology. The manifestation and magnitude of the violations, however, differ from region to region and based on various socio-economic attributes such as caste, class, religion, age, and marital status. A woman who exercises her right to choice in Kerala, for example, is more likely to face economic and emotional abuses, while a woman in Haryana who acts similarly is more likely to face physical and violent opposition from her family and community.
A woman’s right to control over her relationships has strong legal backing. The Indian government is party to a number of international human rights treaties that secure the right to choice in marriage. For example, Article 16 of CEDAW, Article 23 of ICCPR, and Article 5 of CERD hold national governments responsible for upholding the right of all individuals to choose freely and with full consent whether or not to enter into a marriage and with whom.
On a national level, various provisions in Constitution of India safeguard an individual’s right to choose their partner, including the constitutional right to equality before the law, the right to non-discrimination based on sex, the right to form associations freely, and the right to life and personal liberty (see Chapter III, Articles 14-16, 19, 21). Articles 32 and 226 obligate the Supreme and the High Courts to ensure the fulfillment of these fundamental rights and empower them to issue writs against the infringement of these rights. These constitutional rights provide powerful and incontrovertible legal backing in support of a woman who exercises her right to choice in her relationships. Additionally, various institutional bodies have been established in India in order to increase access and effectiveness of citizen’s rights such as those outlined above, including The National Commission for Women (NCW) and The National Human Rights Commission (NHRC).
Several acts have been set in place to increase women’s ability to access their rights to autonomy and decision-making in relation to marriage. These include Special Marriage Act, 1954; Hindu Marriage Act, 1955; Dissolution of Muslim Marriage Act, 1939; The Protection of Women from Domestic Violence Act, 2005; and The Prohibition of Child Marriage Act, 2006. The Protection of Women from Domestic Violence Act 2005, in fact, states that forcing a woman to marry or not to marry a person of her own choice is an act of domestic violence by the family, against which a woman can take legal recourse. Many recent judgments passed by the Supreme and High Courts have upheld a woman’s right to sexual autonomy and decision-making. For further details on such judgments, we invite you to further explore the Resources section of our website.
Even though the existing legal framework guarantees the right to choice in relationships, and despite the numerous positive judgments of higher courts that have sought to strengthen this right, implementation is often absent at the grassroots level. Large overlaps and contradictions exist between family law and criminal law on the issue of sexual autonomy, which leaves room for manipulation of the law. As such, the unfortunate reality is that laws that protect the rights of families are often favored over laws that protect the rights of the women. Local police and judicial bodies, in other words, often ignore their legal responsibility to protect the welfare of women facing harassment and instead side with the woman’s harassers.
There are, unfortunately, ample examples of common ways the law is manipulated in order to deny women their rights. A family whose daughter marries someone against their wishes, for example, may accuse her partner or her partner’s family of abduction and forced marriage. Further, her family may deliberately cause legal delays in the criminal proceedings by calling her age into question in court, which in turn can lead to her forcible detention or forcible return into her family’s custody. Another common tactic is that a woman’s family may claim in court that she is not of sound mind and therefore unable to make her own decisions about marriage. Abuse of the judicial system, unfortunately, is all too common.
At AALI, we empower women to exercise their rights to sexual autonomy and decision-making in relationships by engaging the law strategically to further her cause. It will come as no surprise that AALI’s interventions to support women’s decision-making have been looked upon with open hostility by families, communities, law enforcement, and even by fellow activists, as it directly challenges the status quo. Such resistance has only strengthened our belief in the work we do to assist women in recognizing and claiming their rights.
The present report seeks to suggest certain amendments in both the Special Marriage Act 1954 and the Foreign Marriage Act 1969. The purpose of these suggestions is to make the two Acts available to a larger number of marriages than they now are and to make them widely acceptable to all communities of India.
This Law Commission of India report assesses the entire gamut of Central and
State laws on registration of marriages and divorces to assess if a uniform regime
of marriage and divorce registration laws is feasible in the country at this stage of
social development and, if not, what necessary legal reforms may be introduced
for streamlining and improving upon the present system.
Section 13 of the Hindu Marriage Act, 1955 provides grounds for presentation of a petition for divorce. Section 27 of the Special Marriage Act, 1954 similarly provides grounds for grant of divorce in the case of a marriage solemnized under the Act. However, the said
Acts do not provide “irretrievable breakdown of marriage” as a ground for divorce. The Law Commission of India in its 71st Report titled “The Hindu Marriage Act, 1955 – Irretrievable Breakdown of Marriage as a Ground of Divorce” recommended amendments in the Hindu Marriage Act to make irretrievable breakdown of marriage as a new ground for granting divorce among the Hindus. The Commission has accordingly made its recommendations in this Report.
This study focuses on the problems faceed by women when a marital dispute arises in NRI marriages (marriages in which at least one party is an NRI or a Person of Indian Origin), since they are the persons who are affected most adversely.
The present report attempts to centrally place the issue of ‘love marriages’ within the ambit of the democratic rights movement. From this perspective it examines the questions of the rights of women, of dalits, of violations within the family and the community, and of the involvement of the state and its functionaries who share the same biases.
At-a-Glance Abridged Judgment Full Judgment Shaheen Parveen left her parents’ home with Mohd. Sarfaraj a few months before turning 18. They got married soon after. Shaheen’s mother initiated a successful criminal proceeding claiming Mohd Sarfaraj had abducted her daughter and forced her into marriage. The couple filed this petition seeking to quash the criminal proceedings, […]
At-a-Glance Full Judgment Appellant was infuriated with his daughter, for having ‘dishonored’ his family, since she had left her husband and was living in an incestuous relationship with her uncle. Hence he strangulated her to death. He was convicted by the trial court, judgment upheld by the High Court. All circumstantial evidence pointed to the […]
At-a-Glance Full Judgment This was a case of caste-based discrimination. The Lata Singh judgment was referred to, in relation to ‘honor’ related crimes. The court directed the administration and police officials to take strong measures to prevent such atrocious acts. If any such incidents happen, apart from instituting criminal proceedings against those responsible for such […]
At-a-Glance Abridged Judgment Full Judgment Lata Singh vs State Of U.P. & Another was a landmark case in which the Supreme Court provided unwavering support of a woman’s right to choice. The petitioner, Lata Singh, was a major when she left her family’s home to marry a man outside of her caste. This set off […]