Two op-eds appeared in the papers today that presented two radically different approaches to the recent furore about the honour killings by khap panchayats, and a burgeoning demand for the amendment of the Hindu Marriage Act, 1955 so that certain communities can prohibit marriages within the same ‘gotra’.
Pinky Anand, in The paradox of the 21st Century (The Hindu) strongly opposes this move, basing her arguments primarily on our progressive mindset, judicial precedent and the absence of such a prohibition in the Act as of now:
The Hindu Marriage Act, 1956 was enacted decades ago. The only prohibited marriages under the Act are those between sapindas. Two persons are said to be sapindas to each other if one is a lineal ascendant of the other within the sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference of each of them. There is no prohibition of inter-caste marriages and what is being sought to be done today is prohibition of same-gothra marriages. In Lata Singh (2006), Justice Markandey Katju of the Supreme Court condemned violence targeted at inter-caste marriages and held that the aggressors should be punished.
Are we talking about a modern India where we have been fighting to abolish age-old caste practices? Are we talking of a dynamic and integrated India where there is a high level of mobility, inter-mingling, and inter-mixing of religions and castes?
A Bombay High Court ruling in Madhavrao vs. Raghavendrarao (1945) held that same-gothra marriages were legal. It held that the definition of gothra as descending from eight sages and then branching out to several families was hardly a coherent one.
When a society evolves, even age-old customs that are found to be in conflict with notions of civil society have to give way. This happened with respect to malpractices such as sati and even child marriages. Matters came to a head following Roop Kanwar’s act of sati in 1987. It forced changes in society and changes in law to ban sati, despite opposition from a procession of believers. A similar controversy has arisen over child marriages and malpractices being permitted in various parts of the country.
Madhu Kishwar begs to differ. Her argument is libertarian, although not on-the-face-of-it liberal. She advocates the freedom of choice that belongs to communities when deciding religious matters such as marriages, and as such offers a direct rebuttal to objections based on “modernity” such as Anand’s. From A Question of Balance (Times of India):
Insistence on safeguarding one’s gotra-based identity is being described as proof of “medieval barbarism”. We are told such traditional identities and institutions have no place in the modern world. By that logic, religious identities should also be banned as also the institution of marriage because they too belong to hoary tradition.
[A]fter declaring a marriage between uncle and niece invalid in law, the HMA legitimises customary practice of marriages among many south Indian communities between first cousins and between maternal uncle and niece. Such a marriage among many north Indian communities would be considered as good as incest.
The rich diversity of Indian society is based on easy acceptance by traditional communities that their ways do not have to be universally acceptable. Even khap leaders are only demanding that intra-gotra marriages among their community be denied legal sanction. They are not insisting that everyone in India follow their customs. Unfortunately, our modern-day social reformers do not recognise any such limits. They insist that anything and everything they consider right be imposed on all and whatever they consider wrong be prohibited for all through draconian punitive laws, including long jail terms.
Most of us would feel horrified at a brother and sister from the same parents getting married to each other. But we tend to forget that for those who believe in the sanctity of gotra identity, marriage within the same gotra is as good as incest. In their moral universe, people of the same gotra are like brother and sister. Why judge India’s communities by the social and moral norms currently prevalent in the western nuclear family? Why should we compel people to discard practices and kinship values simply because they are “traditional” as long as they do not impose those values through violence?
I agree with Kishwar’s argument entirely. The reason the Hindu Marriage Act was enacted was to codify customary Hindu law as it existed in 1955; through the wonderful process that passes for democracy in our country, the view of a certain section of Jats was overlooked, and the prohibition of same-gotra marriages not included within mandatory prohibitions. This is still well and good, for such a prohibition does not find resonance in other parts of the country. However, the HMA does make certain allowances based on “custom”, recognising that as far as Hindu marriage is concerned there exists diversity of a scale in the country that would make the imposition of a single legislation upon all regions a foolhardy exercise. The practice of khaps is not new; indeed, as Anand herself mentions, these date back to the 14th century and have been continuing ever since. In view of the right of these communities to uphold their own marriage practices I see no reason why they should be not be permitted, as a community, to prohibit marriages within the same gotra.
All of this, however, can of course not be used to justify violence (killings) to enforce the sought amendment, or be a philosophical argument to allow communities to force their will upon unwilling individuals. The Special Marriage Act is always a route available to parties who do not want to marry ‘according to custom’ (HMA). The reason the HMA embodies the prohibitions that it does (sapinda), is however as a recognition of a pre-existing custom among communities, and till we can be shown a significant difference between brother-sister incest in, say, a Bengali family and same-gotra marriages within a khap, the law as it stands would be arbitrary.
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For once, a sane view! It is amazing how the mainstream media rants about the “medieval customs, Talibani Khaps”, etc. while dealing with the issue of honour killings. Any extra-judicial killing is wrong. There are no 2 ways about it. But there are always nutcases who kill in the name of anything- religion, language, culture, customs, etc. Doesn’t mean that you proceed to damn the underlying.
As a Jat, I’d be critical of this demand from Jats and point out to them how the law would be ineffective in stopping same-gotra marriages- there are outs like SMA, conversion, etc. The customs derive their force from voluntary adherence and not through legal provisions. If they want the youngsters to comply with customs, then those morals need to flow down the chain.
However, if I was arguing with the govt., I’d go ahead with your contention. Moreso, as it could be a political solution to a brewing problem. It can defang a lunatic fringe of the community. The HMA does prohibit relationships based on Sapinda concept, while making provisions for exceptional customs. The gotra concept is not exclusive to Jats and is common to many communities. A similar prohibition can be put in place for gotra while making provisions for exceptional customs.
What is the best way to amend HMA in your opinion to include the gotra provision for Jats or other communities wanting the same?
khaps should be BANNED………………… they r only terroists …………………..
I appreciate The SC decision to refuse Khaps Demand to ban on same gotra marriage. In My view If couple are not minor and they love each other then nobody have right to separate them. I read some on Khap at http://www.lawisgreek.com/khap-panchayat-and-same-gotra-marriages/
Khap Panchayats are basically against ‘love marriages’ – there is very little chance of young men and women ever interacting unless they live in the same village.
‘Court Marriage’ (Under Special marriage Act) and ‘love marriage’ are both seen as blashphemous, girls in particular are brought up not to let the parents’ honor down by choosing their own partners and marrying in any way accept the traditional with ‘band baja’ (and horoscopes, elder’s approval, dowry, willingness to provide a male heir and be obedient and to serve their ‘own’ (marital) family with ‘sincerity’ and sacrifice. The law should make it easier for young couples to marry whoever they like. If the society is against it, let them convince them (which they almost always succeed in doing)- if they can’t – then the law must help them marry those they choose.