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Right to Marry in India - An Analysis of the Hadiya Case

The case of Hadiya has stirred a fresh row over a woman's right to marry the person of her choice in India. Hadiya's right to marry by her choice was challenged by her parents in the Kerala High Court. The state High Court upheld her father's right over her choice and gave her custody to her father despite the fact that she is 25 years old.
Written by:
Shivi Gupta
Published on
24-Jul-18

The case of Hadiya has stirred a fresh row over a woman’s right to marry the person of her choice in India. Hadiya’s right to marry by her choice was challenged by her parents in the Kerala High Court. The state High Court upheld her father’s right over her choice and gave her custody to her father despite the fact that she is 25 years old.

The case has been termed as the ‘love jihad’ case as Hadiya, who previously was a Hindu, converted to Islam to marry a Muslim man. Her father filed a habeas corpus petition in Kerala High Court under Article 226 of the Constitution after she got married, stating that she was brainwashed by some religious fanatics. 

Hadiya was 25 years old when she got married but the Kerala High Court annulled her marriage in May 2017 terming her weak and vulnerable. The High Court’s decision was challenged by Hadiya’s husband, who filed a special leave petition in the Supreme Court, that ordered an NIA probe in the matter. 

Recently, on November 27, the apex court took Hadiya’s testimony in open court and freed her from her father’s custody. The Supreme Court allowed Hadiya to continue her studies in a Salem college and to live with her husband. 

Hadiya’s case has made everybody question the actual applicability and acceptability of the right to marry in India. The rights of women in India are still subject to ignorance as the majority overlook women’s right to choice and consent when it comes to marriage. However, the law says otherwise. Time and again the legal fraternity has pushed for compulsory marriage registration in India. The national commission of Woman made multiple such recommendations. In 2006, the Hon'able Supreme Court in Seema v. Ashwani Kumar & others recommended compulsory registration of marriage across all religions. The registration of marriage helps in reducing polygamy, marriage frauds, child marriage, and other such evils. It also helps in protecting the marital rights of women. 

Is the right to marry a fundamental right in India?

The right to marry is a part of the right to life under Article 21 of the Indian Constitution. The right to marriage is also stated under Human Rights Charter within the meaning of the right to start a family. The right to marry is a universal right and it is available to everyone irrespective of their gender. Various courts across the country have also interpreted the right to marry as an integral part of the right to life under Article 21.

A forced marriage is illegal in different personal laws on marriage in India, with the right to marry recognized under the Hindu laws as well as Muslim laws. Other laws that lay down a person's right to marry in India are:

  • The Prohibition of Child Marriage Act, 2006

  • The Guardians and Wards Act, 1890

  • The Majority Act, 1875

  • The Family Courts Act, 1984

  • The Protection of Women from Domestic Violence Act, 2005

 

What to do if you’re denied your right to marry in India?

The laws in India provide a legal remedy in case a person’s right to marry by choice is violated by someone. It is completely up to the person to initiate legal action or not against the other person, who, in most cases are the person’s parents. The various remedies in case you are denied the right to marry by your choice are as follows:

  1. File a complaint with the Women Cell: A complaint can be filed with the Women Cell of Local Police in the city where the person resides. A written complaint with your details, details about the person who is forcefully making you get married along with place and date. 

  2. File a complaint under the Domestic Violence Act: You can file a domestic violence case under the PWDVA, 2005 against your parents or any other family member with a Magistrate. A temporary restraining order would be issued by the Magistrate preventing your family member from forcefully marrying you with someone. 

  3. Contact the National Commission for Women: You can also contact the National Commission for Women and file a complaint regarding a violation of your right to marry. 

You can hire an experienced family lawyer to file a complaint with the appropriate authority in India in case your right to marry by your choice is denied. MyAdvo has a vast network of 3000+ top-rated family lawyers in more than 600 cities in India. Want to file a complaint against violation of the right to marry in India? Hire the best family lawyers from MyAdvo.