New Delhi: Delivering a verdict in favour of an intercaste couple, a Himachal Pradesh high court order relied extensively on “ancient values of Bhartiya society”, religious texts such as the Vedas to assert that intercaste marriages and the right to choose a spouse were “well recognised in Indian society since ancient era”, which were ‘clouded’ by the “evils of Medieval period”.
On February 19, the high court pronounced its order in a petition that sought the production of a woman who was ‘abducted’ by her parents because they opposed her choice to marry a man from another caste. The petitioner, Sanjeev Kumar, who is from a Scheduled Caste, said that he and Komal Parmar, a Rajput woman, intended to enter into wedlock consensually and had submitted their application under the Special Marriage Act February 1.
After submitting the application, they did not go to their village Hamirpur and instead took shelter in Palampur. In response, Parmar’s family “threatened and maltreated” Kumar’s family, forcing the couple to return. According to LiveLaw, Parmar was ‘abducted’ on February 2 by her family when they were on their way back, which prompted Kumar to file the petition.
Though Parmar’s father initially submitted that his daughter had ‘mental health problems’, Parmar herself denied these allegations when she was presented before the court. “She has also endorsed the contents of the petition and incidents narrated therein,” the court’s order records.
Komal Parmar also submitted that her family’s “main opposition” for her marriage is “the difference in caste”. She said that the other submissions made by her father “are nothing but an attempt to defer the solemnisation of marriage” so the couple’s intended marriage could be “managed by passage of time by hook or crook”.
The order, delivered by Justice Vivek Singh Thakur, records that according to the constitution, “discrimination on the basis of caste by denying of right to choose spouse, is in violation of Fundamental Rights”.
It then goes on to rely extensively on the Vedas, ‘ancient values of Bharatiya Society’ and other religious texts.
Justice Thakur also records that the constitution is “an embodiment of ancient values of Bhartiya Society”. The order reads:
“So far as opposition to marriage for difference of caste is concerned, the same is result of spiritual as well as religious ignorance leading to behaviour in violation of constitutional mandate, despite the fact that Constitution is an embodiment of ancient values of Bhartiya Society. Independence of thought to an individual is fundamental feature of Indian culture.”
The judge says that though those who support the continuation of the caste system and caste-based discrimination do so by citing religion, he calls this “ignorance”, as such thoughts are “contrary to basic and true essence of religion”.
“It is basic spiritual as well as religious mandate of all religions that God is everywhere, in everyone and everyone is equal before God. Not only this, it is also considered that existence of God is not only in living creatures but is also in non-living things and, thus, no one is to be discriminated on account of sex, caste, creed, race, colour or financial status,” the order says.
“In Shrimad Bhagwat Gita also, which is said to be message of God, it is propounded that the one who discriminates amongst the creatures of God and do not see presence of God everywhere can never attain self-realization and blessings of God,” the judge adds.
The order says that caste discrimination is sometimes propounded “on the basis of some Samritis and Puranas, forgetting the basic principle that the highest source of religious norms are Vedas” and anything in other religious texts which is contrary to the principles propounded in the Vedas, “is to be considered ultra vires to Vedas and, thus, contrary to Dharma and, therefore, is to be discarded”.
Justice Thakur states:
“Vedas propound a principle of equality and betterment of all without any discrimination by pronouncing that we should work together, eat together, march together and live together for betterment and progress of all … Therefore, discrimination on the basis of caste is not only in violation of constitutional mandate but also in opposition to real Dharma.”
The order says the right to marry or, for valid reasons, not to marry, as well as the right to choose a spouse, is a “well recognised right in Indian society since ancient era”.
“Inter-caste marriages were also permissible in ancient Indian society but for evils of Medieval period wrong perceptions have clouded the rich values and principles of our culture and civilization,” the judge says, adding examples of inter-caste marriages in ‘ancient India’.
It is not clear from the order what the “evils” of the medieval period are.
“To my little knowledge, oldest example of marrying a person of choice is marriage of Sati with Lord Shiva, which was solemnised in defiance and against wishes of her father King Daksha Prajapati. Another more than 5000 years old example of choosing the spouse according to choice of the girl is of Rukamani and Lord Krishna, as Rukmani was having liking and wish to marry Lord Krishna, whereas her brother was intending to arrange her marriage with Shishupal, whereupon Rukmani had wrote a letter to Lord Krishna to take and accept her as his spouse and Lord Krishna did so by taking her from the Mandapa,” the order says.
“Leaving apart the history and ancient values of Indian society, we all are living in a country governed by constitutional mandate and ‘Rule of Law’ is to prevail in all eventualities,” the judge observed.
‘Girl is not a cattle’
In addition, Justice Thakur observed that while “parents are always worried about the future and well being of their child”, it is also true that parents, relatives and friends “cannot force an adult to act according to their whims and wishes by suppressing the wish and desire of an individual”.
“Suppressing or oppressing freedom of an individual, that too which is contrary not only to his/her spiritual and religious rights but also constitutional rights, is to be deprecated. Balance is to be maintained between individual, family and societal interests and that should be in consonance with constitutional mandate.” the order says.
“It is to be remembered that a girl is not a cattle or non-living thing but a living independent soul having rights, like others, and, on attaining the age of discretion, to exercise her discretion according to her wishes,” Justice Thakur said.
He says unlike “ancient western thought”, wherein a female was supposed to be created by God from the rib of a man “for enjoyment of man”, in India, a female was always considered “not only equal but on higher pedestal than male since Vedic Era, except for evils of Medieval Period, which are necessarily to be eradicated in present era”.
The order concludes that in the present case, Komal Parmar’s endorsement of the claim that she was abducted by her family members “is more than sufficient to construe that such restraint, detention or custody was illegal and contrary to constitutional mandate”.
The order says:
“Komal Parmar is a grown-up girl of 21 years of age having no infirmity or incapacity to understand each and every aspect of life and to take decision and she has a right to exercise her discretion to choose spouse and to decide the place of her residence. Ms Komal Parmar is major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases.”
The judge disposed of the petition, saying Parmar is at liberty to “reside wherever she wants”, with the state government being directed to ensure safety of lives and property of Komal Parmar, Sanjeev Kumar and his family.