Same gotra marriage ban: Khaps make a renewed push with political backing
With the state assembly elections due in 2024, several khap panchayats or caste councils in Haryana are making a fresh bid for the enactment of a legislation to prohibit same gotra (clan) marriages in the state. Khap panchayats in Haryana hold sway in several Jat-dominated constituencies and can influence the poll outcome.
With the state assembly elections due in 2024, several khap panchayats or caste councils in Haryana are making a fresh bid for the enactment of a legislation to prohibit same gotra (clan) marriages in the state. Khap panchayats in Haryana hold sway in several Jat-dominated constituencies and can influence the poll outcome. The fresh demand for outlawing the same gotra marriages, however, has been disapproved by legal and social experts terming the proposed move as legally flawed. In the past few days, Jat community leaders like Ramesh Dalal of Bharat Bhoomi Bachao Sangharsh Samiti and Tek Ram Kandela, head of national Sarv Jatiya Kandela Khap, have expressed their intent to push for a comprehensive ban on the same gotra marriage. Dalal held a meeting with state officials at Chandigarh on Wednesday in this regard and was asked to submit a formal representation delineating the proposed amendment in the Hindu Marriage Act.
Who all are pushing for the ban and the rationale
A lawyer himself, Ramesh Dalal said they took up the demand to ban same gotra marriages in the larger interest of society. “Our demand is to amend Section 5 of the Hindu Marriage Act. Since marriage is in the concurrent list of the Constitution, the state can amend the Act and send it for Presidential assent. The amended law should define gotra and a condition of annulment of same gotra marriage should be incorporated in it. We though are not opposed to inter-caste marriages,” Dalal said. He said that a ban on same gotra marriages would bring an end to honour killings and animosity in villages.
Tekram Kandela, head of national Sarv Jatiya Kandela Khap, said the government should ban same gotra marriages, marriages in same villages and villages which share boundaries with each other.
“We are preparing a draft proposal in this regard which will be sent to the Haryana government. A total of 160 khaps of Haryana are in sync with us,” Kandela said.
Tacit support of politicians of every hue and colour
Advocates of the ban also seem to have the implicit and explicit support of an array of politicians in the state.
In fact, a former Congress Rajya Sabha MP from Haryana, SL Batra had on August 13, 2010, introduced a private members Bill in the Upper House to amend the Hindu Marriage Act for disallowing the solemnising of marriages if the parties belonged to the same gotra/parivara and resided in the same village. The Bill got lapsed. It justified disallowing same gotra marriages stating that entire village is considered as one unit and its young folk as brothers and sisters as per the age-old custom and tradition. “This cultural commitment has gone a long way in ensuring dignity and safety of women in day-to-day activities. Marriage, as an institution of personal law, has been playing a significant role for social life and healthy society.
Vedic literature and seers prohibited marriages in the same gotra or parivara. Further, custom and age-long tradition prohibited marriages in same village and in the same gotra and sapindas of each other. Social fabric and mutual ties are so strong in rural areas that any violation of their established norms is not accepted,” the Bill said.
Legal position on same gotra marriage
Legal and social experts, however, said that the proposed move of khap panchayats was legally unsustainable.
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 SC 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.
Former Haryana advocate general, Ashok Aggarwal said the Hindu Marriage Act has clearly defined the prohibited relationships. “The argument of banning the same gotra marriage is not legally sustainable. It has never been done,” Aggarwal said.
Senior Punjab and Haryana high court lawyer, Vikram Jain said that while prudent customs and traditions needs 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.
Social scientist and former professor of sociology, GNDU, Amritsar, Paramjit Singh Judge said that same gotra marriage across the country cannot be stopped by amending the law as marriages generally depend on local custom and traditions. “For instance, in Andhra Pradesh, marriages of mama and bhanji (maternal uncle and niece) get solemnised as per the local traditions. In Sikhism, there is no gotra rule. It is the local tradition which drives marriages,” Judge said.
He said a legislation won’t help and only a social framework can be the answer.