SC refuses to annul 26-yr-old K'taka woman's marriage performed without consent

New Delhi: The Supreme Court on Wednesday refused to annul a 26-year-old woman’s marriage only on the ground that it was performed without her consent, but asked the Delhi police to grant her protection from her family as she feared ‘honour killing’.

The court was informed that the woman’s marriage was performed in Gulbarga in Karnataka on March 14, 2018 without her consent in a politician’s family. As she refused to live with her husband, she faced threat to her life from her family and she had come down to Delhi and was staying in the custody of Delhi Commission for Women (DCW).

A three-judge bench of Chief Justice Dipak Misra and Justices A M Kanwilkar and D Y Chandrachud told senior counsel Indira Jaising, who argued for the girl, that under the Hindu law a marriage cannot be annulled for lack of consent. The petitioner will have to seek remedy in a civil court for divorce and lack of consent can be a ground for seeking divorce, which is based on facts, the CJI observed.

The bench while restricting the scope of the petition to providing security asked the Delhi police to give her protection during her stay and asked the police officers concerned to serve a copy of the petition on the girl’s parents, brother and husband for their response.

Referring to the petitioner 'X’ (name withheld by court) plea that there must be a declaration from the court that a marriage performed without consent is invalid, the CJI pointed out that “any marriage performed with consent obtained by coercion or force or fraud can be a ground for divorce. It cannot be a ground for annulment of marriage and the provision will not become ultra vires.”

The CJI citing a love jihad Hadiya judgment delivered on Monday told the counsel “only recently we have held that the Kerala High Court entertaining a writ petition cannot annul a marriage. While so how can we entertain your prayer? We can only grant police protection.”

Justice Chandrachud pointed out that once the law says that if consent is obtained by coercion the marriage becomes void, it is implicit that there must be consent for marriage. “We cannot declare a provision unconstitutional merely because you say you did not give consent to the marriage,” he added.

Counsel argued that there is lack of clarity in law that woman has to give her consent to the marriage and the court should clarify this provision. She pointed out that even prior to the marriage, both the bridegroom and her family were informed that she was not consenting to the marriage. On the date of marriage, she sent ‘SMS’ to the Additional Superintendent of Police seeking his intervention. Though the police came she was threatened by the family not to oppose the marriage. She came out of the matrimonial home within three days of marriage and had taken shelter in Delhi, counsel submitted.

The CJI told the counsel “if you (petitioner) don’t want to go to Bengaluru to stay with your family, nobody can compel you. Court will not be an impediment for her to stay in Delhi and let her go wherever she wants to go.”           

Petitioner said her fundamental right to choose her life partner, has been brazenly trampled by her family members, who in connivance with each other have coerced, threatened, blackmailed, harassed, pressurized, abused, compelled and tricked her into getting married to Respondent No. 6 (name withheld), against her wishes and free consent.

The Petitioner challenges the constitutional validity of Sections 5(ii) and 7 of the Hindu Marriage Act, 1955, in as much as 'valid consent’ is absent and the same are in violation of Articles 14 and 21 of the Constitution, arbitrary and discriminatory in nature. The Petitioner has escaped from the clutches of her abusive family in Karnataka and has reached Delhi.

She sought a direction to concerned authorities to provide her adequate security in order to safeguard her life, liberty and limb which is under threat from her own family members who are politically active in the State of Karnataka, whose conduct is indicative of resulting in the ghastly act of ‘honour killing’ as she wanted to get married to a person outside her caste.

The bench posted the matter for further hearing on May 4.