Khaps ask Haryana to amend Hindu Marriage Act to ban intra-gotra marriage - Hindustan Times
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Khaps ask Haryana to amend Hindu Marriage Act to ban intra-gotra marriage

By, Chandigarh
Jul 04, 2023 12:57 AM IST

Ramesh Dalal, the president of the Samiti, said that certain marriages such as those within the gotra, within the village and villages sharing geographical boundaries are not permissible in the civil society as per Haryanvi culture and custom.

Khap panchayats (caste councils) in Haryana have asked the Bharatiya Janata Party-Jannayak Janta Party government to amend the Hindu Marriage Act for prohibiting same gotra (clan) marriages in the state. Bharat Bhoomi Bachao Sangharsh Samiti, an umbrella organisation comprising several khaps and citizens, in a July 1 representation to Haryana chief minister Manohar Lal Khattar, said that the state should amend the Hindu Marriage Act, 1955, and declare intra-gotra and intra-village marriages invalid in public interest.

Khap panchayats (caste councils) in Haryana have asked the Bharatiya Janata Party-Jannayak Janta Party government to amend the Hindu Marriage Act for prohibiting same gotra (clan) marriages in the state. (HT File)
Khap panchayats (caste councils) in Haryana have asked the Bharatiya Janata Party-Jannayak Janta Party government to amend the Hindu Marriage Act for prohibiting same gotra (clan) marriages in the state. (HT File)

Ramesh Dalal, the president of the Samiti, said that certain marriages such as those within the gotra, within the village and villages sharing geographical boundaries are not permissible in the civil society as per Haryanvi culture and custom.

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Dalal, a lawyer himself, said that the civil society in Haryana however permits inter-caste and inter-religion marriages.

Justification for proposing the ban

“Unfortunately, there are instances of intra-gotra and intra-village marriages which are completely against our culture and customs. Resultantly, there has been an increase in violence, honour killings, threats, and harassment.

It is important to note here that due to lack of social permissibility for intra-gotra and intra-village marriages, the resultant violent reaction is not only limited to the families of such marriages, but also impacts the society at large. Thus, there is always an apprehension of large-scale violence impacting the whole society,” he said.

Tek Ram Kandela, head of national Sarv Jatiya Kandela Khap, has also expressed intent to push for a comprehensive ban on the same gotra marriage.

Dalal, who met state officials last week, said that over 200 mahapanchayats have been organised by Khap panchayats from time to time, demanding the prohibition of intra-gotra and intra-village marriages. Recently, through a peaceful agitation, which has been continuing for more than 170 days under Samiti’s banner, the demand for ban on such marriages was vociferously made.

Politics behind proposed amendments

By dredging up the same gotra marriage ban demand, the khap panchayats in the state are mounting pressure on the ruling BJP-JJP government ahead of the 2024 assembly polls. The khaps hold a certain sway in several Jat-dominated constituencies and can influence the poll outcome.

The Samiti, in its representation, said that law is meant and made for society and therefore cannot supersede custom and usage. Therefore, changes be brought in the law to prohibit intra-gotra and intra-village marriages. It said that the Haryana assembly should amend Section 5 of the Hindu Marriage Act, 1955, pertaining to conditions for a Hindu marriage.

“Provisions that the parties are not of the same gotras, unless the custom or usage governing each of them permits of a marriage between the two and the parties are neither belonging to the same village nor belonging to the village sharing geographical boundaries (seam), unless the custom or usage governing each of them permits of a marriage between the two should be inserted in Section 5,” Dalal said quoting from the representation.

“Similarly, new provisions - Section 3(h), (i) and (j) may be added defining same gotra, belonging to the same village and belonging to village sharing geographical boundaries,” it said.

The representation said that the topic of marriage falls at entry 5 in concurrent list of the seventh schedule to the Constitution. Therefore, the Haryana legislative assembly is competent and empowered to legislate and to make these amendments, it said.

Dalal said since the Hindu Marriage Disabilities Removal Act, 1946, expressly allowed same gotra marriages, thus the proposed amendment will create inconsistency between the Central and the state Act. “Therefore, the amendment Bill would need the assent of the President under Article 254 (2) of the Constitution, he said.

Ban legally untenable: Legal experts

The fresh demand for outlawing the same gotra marriages, however, has been disapproved by legal and social experts who termed it as legally flawed.

A three-member Supreme Court bench, headed by the then chief justice Dipak Misra, in its March 27, 2018 judgment pertaining to honour killings had held that the choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice.

“The same is bound by the principle of constitutional limitation but in the absence of such limitation, none, we mean, no one shall be permitted to interfere in the fructification of the said choice. If the right to express one’s own choice is obstructed, it would be extremely difficult to think of dignity in its sanctified completeness,” the apex court said.

The apex court 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,” the top court held.

Senior Punjab and Haryana high court lawyer Vikram Jain said that while prudent customs and traditions need to be respected to maintain societal values, a ban on same gotra marriages would not pass the legal test as it tends to be violative of fundamental rights.

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  • ABOUT THE AUTHOR
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    Hitender Rao is Senior Associate Editor covering the state of Haryana. A journalist with over two decades of experience, he writes on politics, economy, migration and legal affairs with a focus on investigative journalism.

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