Every person has right to choose his life partner of his own choice

Question

I’m asking this question on behalf of my friend. He loves his colleague, and they have decided to get married. They belong from a different community, therefore, cannot marry due to the customs of their society.  He is terrified because his uncle warned him that if he marries with his friend, then he should be ready to face serious consequences. Sir, this doesn’t seem right, and no one can force them to retract from their decision. Please tell me what they should do?

Question asked on 12/08/2018

Answered by: Advocate Shivendra

He should not be afraid of the threats giving by his uncle. Your friend and his colleague have attained the age of majority. Therefore, they are free to marry without the consent of their parents. You said that the lady belongs to a different community. Section 5 of the Hindu Marriage Act permits them to solemnise their marriage. If parties to the marriage are Hindu, it is irrelevant that they belong to the different community.

Recently, the Supreme Court held in Shakti Vahini v. Union of India, (2018) 7 SCC 192 held that the right to select a life partner is a fundamental right. This right to choose a life partner of his own choice is declared a fundamental right because it is an inherent part of Article 19 and 21 of the Constitution of India.

The court further opined that once the fundamental right is inherent in a person, then no one can scuttle such right by leaning on any kind of philosophy, moral or social, or self-proclaimed elevation. Clan supremacy cannot take away the enjoyment of a right guaranteed under the constitution.

To stop the continuous threats from his uncle, he should file a complaint against him for the offence punishable under section 506 of the Indian Penal Code. His uncle has been committing the crime of criminal intimidation by giving threats of life. There is no illegality to solemnise marriage with a girl of different community. His uncle is acting as a moral preacher of Khap Panchayat. He is trying to take the law into his hand and assuming the character of the law implementing agency. Without having any authority, he is giving threats to him.  

In this situation, your friend should file a writ petition before the High Court under Article 226 of the Consitution. He may plead the court that his uncle is trying to violate his right, which is declared by the supreme court as the fundamental right in Shakti Vahini case.

When a right has the sanction of the constitutional law, and once that is recognised, the said right needs to be protected, and it cannot succumb to the conception of class honour or clan supremacy. Hence, the High Court may provide him with proper police protection and direct his uncle to produce an undertaking that he shall not create hurdle in solemnisation of their marriage.

Nowadays, the court is actively interfering in the societal weft to protect the constitutional and fundamental right of the citizen. The activity of Khap Panchayat, the act of honour killing and clan supremacy have taken many lives. This menace should be stopped, therefore, the Supreme Court in Shakti Vahini case declared that the right to choose a life partner of own choice is a fundamental right. After such declaration, any person can approach the High Court or Supreme Court for protection against violation of that fundamental right.

He should file a writ petition for the protection and proper direction from the High Court to solemnise their marriage and may also file a complaint before the Magistrate under section 200 of the CrPC for stopping the undue interferences of his uncle.

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Shivendra Pratap Singh

Advocate, Lucknow

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