BRIDE'S CONSENT TO MARRIAGE IS IMPLICIT IN HINDU LAW, SAYS SUPREME COURT

BRIDE'S CONSENT TO MARRIAGE IS IMPLICIT IN HINDU LAW, SAYS SUPREME COURT

Consent of a bride to marriage is an inherent part of the Hindu marital law, the Supreme Court said on Wednesday.  With this, the court refused a plea to judicially declare that a Hindu marriage entered into without the bride’s voluntary consent or after playing fraud on her is invalid.  A three-judge Bench led by Chief Justice Dipak Misra said the Hindu Marriage Act inherently holds a forceful marriage or a fraudulent one held without the woman’s voluntary consent as invalid.

The court said there is no need for a judicial declaration when the statute itself is amply clear. “A marriage that takes place without the consent of the bride is subject to nullification of the marriage... A marriage entered through fraud on the bride stands on the same footing as when there is no consent,” Justice D.Y. Chandrachud, who is part of the Bench with Justice A.M. Khanwilkar, observed.

The court was urgently hearing a writ petition filed by the daughter of a influential Karnataka politician, who alleged that she was married off against her will.  She fled to Delhi and is now under the “advice” of the Delhi Commission for Women. She had approached the apex court for protection and highlighted the plight of women who are married forcefully against their wishes.

The woman, represented by advocates Indira Jaising and Sunil Fernandes, contended that “there is no clear provision in the Hindu Marriage Act that a woman should give consent.”  Ms. Jaising said the apex court should give a declaration that the bride’s consent is part of a valid marriage. Justice Chandrachud pointed to Sections 5, 11 and 12(c) of the Hindu Marriage Act, which stipulates “consent” from brides as a pre-condition for a valid marriage.

Chief Justice Misra said any woman subjected to a forceful or fraudulent marriage is at liberty to initiate civil action in the appropriate court. The Chief Justice also pointed that it was only recently, in the Hadiya case judgment on April 9, that the Supreme Court castigated the Kerala High Court for nullifying a marriage in an Article 32 petition.  Now, the Supreme Court cannot be expected to nullify a marriage in a writ petition, he said.

Chief Justice Misra said it was up to a civil court to look into the facts of the case and take a decision on whether to nullify the marital bond or not.   “The civil courts know their statutes,” Chief Justice Misra said. The court said it would protect the woman in the case, but would not go into any other prayers in the petition.  The court said if the woman does not want to go back to her marital home, no one could compel her. Chief Justice Misra said, however, if she wanted to return to Bengaluru, the court would facilitate it.  Issuing notice to the State of Karnataka, the court ordered the Delhi Police to provide her security throughout her stay. The case has been posted for hearing in the first week of May.