When two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so
Any kind of torture or torment or ill-treatment in the name of honour that tantamount to atrophy of choice of an individual relating to love and marriage by any assembly, whatsoever nomenclature it assumes, is illegal and cannot be allowed a moment of existence
The consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock, said the three judge bench comprising Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud while holding that any attempt by Khap Panchayats or any other assembly to scuttle or prevent two consenting adults from marrying is absolutely “illegal”.
"When two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution", held the Court
Shakti Vahini, an NGO, had approached the Apex Court, seeking directions to the State Governments and the Central Government to take preventive steps to combat honour crimes. It had also prayed before the Court to direct the State Governments to launch prosecutions in each case of honour killing and take appropriate measures so that such honour crimes and embedded evil in the mindset of certain members of the society are dealt with iron hands.
The Central Government told the court that it is engaging various States and Union Territories for considering a proposal to either amend the IPC or enact a separate legislation to address the menace of honour killing and related issues. It also told the court that a Bill titled ‘The Prohibition of Interference with the Freedom of Matrimonial Alliances Bill’ has been recommended by the Law Commission of India vide the 242nd Law Commission Report. Many state governments also filed affidavits in the Court stating how they dealt with the crimes related to honour killing.
Class honour, howsoever perceived, cannot smother the choice of an individual which he or she is entitled to enjoy under our compassionate Constitution
The Judgment, authored by the CJI Justice Dipak Misra himself, starts with a quote from French philosopher and thinker, Simone Weil, “Liberty, taking the word in its concrete sense consists in the ability to choose.”.
Elaborating on it, the judgment reads: “When the ability to choose is crushed in the name of class honour and the person’s physical frame is treated with absolute indignity, a chilling effect dominates over the brains and bones of the society at large. The question that poignantly emanates for consideration is whether the elders of the family or clan can ever be allowed to proclaim a verdict guided by some notion of passion and eliminate the life of the young who have exercised their choice to get married against the wishes of their elders or contrary to the customary practice of the clan. The answer has to be an emphatic “No”. It is because the sea of liberty and the ingrained sense of dignity do not countenance such treatment inasmuch as the pattern of behaviour is based on some extra-constitutional perception. Class honour, howsoever perceived, cannot smother the choice of an individual which he or she is entitled to enjoy under our compassionate Constitution. And this right of enjoyment of liberty deserves to be continually and zealously guarded so that it can thrive with strength and flourish with resplendence. It is also necessary to state here that the old order has to give way to the new. Feudal perception has to melt into oblivion paving the smooth path for liberty”
Honour crime is the genus and honour killing is the species, although a dangerous facet of it.
The Bench observed that that honour killing is not the singular type of offence associated with the action taken and verdict pronounced by the Khap Panchayats. It is a grave one but not the lone one. It is a part of honour crime. It has to be clearly understood that honour crime is the genus and honour killing is the species, although a dangerous facet of it.
The Bench further observed: “Any kind of torture or torment or ill-treatment in the name of honour that tantamount to atrophy of choice of an individual relating to love and marriage by any assembly, whatsoever nomenclature it assumes, is illegal and cannot be allowed a moment of existence.”
Consent of family/community/clan unnecessary for two adults to marry
The Court also said that the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock. Their consent has to be piously given primacy, it said.
The Court further said that, when two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so. And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation.
Right to choose life partner, recognized by Constitution
The Bench also said: “Honour killing guillotines individual liberty, freedom of choice and one’s own perception of choice. It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected and it cannot succumb to the conception of class honour or group thinking which is conceived of on some notion that remotely does not have any legitimacy.”
“The majority in the name of class or elevated honour of clan cannot call for their presence or force their appearance as if they are the monarchs of some indescribable era who have the power, authority and final say to impose any sentence and determine the execution of the same in the way they desire possibly harbouring the notion that they are a law unto themselves or they are the ancestors of Caesar or, for that matter, Louis the XIV. The Constitution and the laws of this country do not countenance such an act and, in fact, the whole activity is illegal and punishable as offence under the criminal law.”, the Bench remarked.
The Court also rejected the contention adopted by the panchayats that they are committed to the spreading of awareness of permissibility of inter-community and inter-caste marriages and they also tell the people at large how "Sapinda" and "Sagotra” marriages have no sanction of law. The Court said that if it is prohibited in law, law shall take note of it when the courts are approached and no one has the authority to take law into own hands.
The Bench issued following directives: