Love Marriages, Inter-Caste Violence, and Therapeutic Jurisprudential Approach of the Courts in India

Love Marriages, Inter-Caste Violence, and Therapeutic Jurisprudential Approach of the Courts in India

Debarati Halder (Centre for Cyber Victim Counselling (CCVC), India & Unitedworld School of Law, India) and K. Jaishankar (Raksha Shakti University, India)
Copyright: © 2017 |Pages: 13
DOI: 10.4018/978-1-5225-2472-4.ch003
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Abstract

India is a country of multiple religion, castes, and linguistic groups. The Indian constitution guarantees for equal treatment of laws irrespective of religion, caste, creed etc. Similarly, the modern marriage laws provide opportunity to marry inter-caste or inter religion. In modern India there is a huge growth of inter-religious, inter-caste, cross cultural love marriages, however, many societies in different parts of India are still reluctant to accept such mixed marriages. Couples of such mixed marriages may suffer various sorts of victimization including violent assaults. Children of such mixed marriages may also suffer social ostracism. Also, due to social attitude, such mixed marriages may miserably fail. This chapter aims to find out whether courts in India have Therapeutic Jurisprudential role in saving such marriages and how the implementation of such TJ approach may be made possible.
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Introduction

In India, love marriages are accepted forms of marriages, since the ancient period. In ancient Indian texts, such forms of marriages were known as “Gandharva vivaha,” (Rao, 2009, p. 180) and this required only the consent of the bride and the groom. This form of marriage was however considered as an ‘unapproved form’ of marriage since it did not involve ‘kanyadan’ or presenting the daughter to the groom by the father of the daughter (Rao, 2009, pp 180). However, Gandharva vivaha as a socially accepted form of marriage finds mention in ancient epics like Mahabharata, whereby it is found that Emperor Bharata, the ancestor of Pandavas and Kauravas was born out of a Gandharva Vivaha of his parents, King Dushyant and Shakuntala (Meyer, 1989). With the influx of different invaders belonging to different religious and cultural sects in India including the Greek and Arab invaders in the ancient period, Muslim invaders in medieval period and lastly the European invaders, the Indian society, especially the Indian Hindu society became more orthodox towards allowing love marriages which may necessarily include inclusion of individuals from different socio-religious backgrounds. The Indian Hindu society, which was already divided based on the Varna system,1 became more stringent towards accepting any sort of marriages, which may involve two individuals belonging to two Varnas (or castes), two separate geo-locations with different cultures, separate linguistic sectors and religions.

In several Indian States, other than the fear of dilution of particular societal values nurtured in particular societies, such sorts of love marriages are also discouraged for the fear of distribution of property to people from other sects. In the medieval and colonial periods, social reformers in India including Raja Ram Mohan Roy from eastern India, especially Bengal, Subramania Bharathi and E. V. R. Periyar from Madras Province etc. fought for abolition of caste /religion/language based discrimination in every field including marriages. Such reformatory ideology was carried in to modern Indian constitution by Dr B. R. Ambedkar, who framed the Constitution of the modern India. The first few provisions of the Constitution of India including Article 14 (equal protection of laws to all), Article 15(prohibition of discrimination on grounds of race, religion, caste, sex or place of birth), Article 21 of the constitution (Right to life, liberty and property) etc. are the anti-discriminatory provisions which guarantee equal rights to all citizens including right to marry according to one’s own choice. This very understanding was reached by the Supreme Court of India in the case of Lata Singh vs. State of U.P. and another (2006).2

Nevertheless, inter-caste, inter-religious and inter-linguistic love marriages are still not accepted by many societies in India. Such marriages may often see devastating results including honour killing or forced separation by families. Even though India has laws for facilitating such sorts of mixed marriages, oftener than not, the purpose of the said law, namely Special Marriages Act, 1954 failed miserably due to various reasons including unawareness of the interested stakeholders about the nuances of the law, court’s failed attempts to restore the marriages with Therapeutic Jurisprudential (TJ) approaches and lack of general awareness about TJ scopes of the courts to protect couples thus married. These issues came up again and again in recent times with especially two recent cases from Tamil Nadu, viz., the alleged suicide of Illavarasan, a Dalit (lower caste) boy, who had an inter caste marriage with a caste Hindu girl (a middle caste), and the brutal killing of V. Shankar, a Dalit boy, who married a caste Hindu girl. While in the earlier case, even though the Madras High court had the opportunity to use TJ principles to reintegrate the couple, it failed to do so. In the latter case, the same Madras High Court had issued guidelines to protect inter-caste, inter-religious and inter-linguistically married couples from violent social outbursts including honour killing or social ostracising.

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