The Supreme Court today came to the rescue to a 26-year-old Karnataka woman, who alleged that she has been married off without her consent, asked the Centre and the Delhi Police to grant her protection.
The woman, who is currently in Delhi and is being helped by Delhi Commission for Women, has sought striking down of sections 5 and 7 of the Hindu Marriage Act (HMA) to the extent that they fail "to prescribe free, fair, valid prior consent of the parties to a marriage".
A bench of Chief Justice Dipak Misra and justices A M Khanwilkar and D Y Chandrachud made clear that it will treat this petition as "habeas corpus" and not deal with the constitutionality of the provisions of the Act as sought by senior advocate Indira Jaising, representing the aggrieved woman.
"We can deal this petition as habeas corpus petition only. We will not get into the constitutionality of the provisions," the bench said, adding that it can grant protection to her to ensure that she is not forced to go to a place against her will.
At the outset, Jaising said she is an engineer and seeks quashing of her marriage conducted on March 14, 2018, as it was solemnised without her free, fair and valid prior consent.
The woman, daughter of an influential politician from Karnataka, asked the bench to consider the legality of the HMA provisions as they were silent on the requirement of a girl's explicit consent to make a marriage valid.
The court said such a declaration that lack of explicit consent would render the marriage invalid can be decided through appropriate proceedings emanating from family court. It also referred to the legal position and said Section 12 (c) of the Act provides for annulment of marriage if there is forced or fraudulent consent.
The counsel for the woman said this was a reverse case of Kerala's Hadiya as here the girl does not want to go with the husband who has been foisted on her by her family.
The court agreed with the contention of Jaising that the identity of the woman and her family members, who had forced her into the marriage, should not be revealed and said the name and addresses of the parties including the woman would be given in sealed cover.
It directed the Superintendent of the Police concerned to serve notice on the respondents (family members) and fixed the matter for further hearing on May 5.
She sought a direction quashing/nullifying/annulling her forced marriage conducted on March 14, 2018, which was conducted without her free, fair and valid prior consent.
"Declare Section 5(ii) and Section 7 of the Hindu Marriage Act to the extent it fails to prescribe/stipulate free, fair, valid prior consent of the parties to a marriage, are unconstitutional in as much as the same are discriminatory, unreasonable, arbitrary and in violation of Article 14 and 21 of the Constitution," the woman said in her plea.
She claimed that 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 the man, against her wishes and free consent.
The woman also claimed that she had escaped from the "clutches of her abusive family in Karnataka" and reached Delhi and further sought direction to the authorities from the apex court to provide her adequate security in order to safeguard her life, liberty and limb which was under threat from her own family members who are politically active in Karnataka.
She also said her family's conduct was indicative of resulting in the ghastly act of 'honour killing' as she wanted to get married to a person outside her caste.
The woman, an engineer by profession, alleged that she was forced to discontinue her studies in January this year as her parents forced her to marry against her wishes to the man.
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