When the Special Marriage Act, 1955 was enacted, it aimed to promote intercaste and interfaith marriages. It was embedded in B.R. Ambedkar’s vision that religious orthodoxy and caste-based hierarchy would falter with people engaging in inter-community marriages.

He wrote, “I am convinced that the real remedy is intermarriage. Fusion of blood can alone create the feeling of being kith and kin, and unless this feeling of kinship, of being kindred, becomes paramount, the separatist feeling – the feeling of being aliens – created by caste will not vanish.”

However, a Bharatiya Janata Party (BJP) MP recently advocating parental consent for marriage and a ban on live-in relationships, amid the adoption of several legislations on anti-conversion laws, indicates the party's intention to regulate and restrict unorthodox relationships between individuals.

Excessive state intervention in familial relations

Indian society considers marriage to be the responsibility of the State to safeguard it from external influences. This has resulted in the State adopting a paternalistic role in marital relations between two individuals. The concept of ‘parents know best’ runs deep in the society, and therefore, intervention in marital relations is justified as a way to refrain docile kids from making a bad decision.

However, Elizabeth S. Scott argues that in intimate relationships like marriage, the state should play the role of “norm manager”. This would mean that the legal norms enacted by the State should be shaped to target discrete social problems within the institution of marriage.

In his work, A Village in the Third Reich, Julia Boyd portrays how privileges in a Nazi society were based upon whom you have married. The Law for the Protection of German Blood and German Honour of 1935 prohibited marriages between Aryans and Jews and it also required to establish one’s racial purity before a marriage could be solemnised.

At the core of such laws prohibiting inter-community marriages is economic exploitation and controlling women’s sexual autonomy.

In Sex, Love, Race: Crossing Boundaries in North American History, Martha Hodes depicts that with these laws, the colonists intended to ensure continued exploitation of Africans and shunned their chances to rise up in the social hierarchy. This was also reinforced with the ‘one drop rule’, wherein if a person was known to have 1% of African blood in his veins, he ceased to be a white man.

In England, the legislation that established the State's control over marriage, known as the Marriage Act of 1753, aimed to to do away with the lack of clarity and uncertainty regarding property for the landed elites. The Act also restrained clandestine marriages amongst the children. All this was done in the name of moral paternalism and to protect children from moral turpitude.

Also read: Love, Faith and Consent in a Hindu Rashtra

Moral paternalism by the State

Justifying moral paternalism, professor Gerald Dworkin argues that the State engages in regulating social institutions, such as marriage, for an individual’s own moral good. However, the notions of morality are different for each person, and therefore, by adopting the role of a parent, the State forces an individual to act according to the majoritarian notion of morality.

One of the major criticisms of this theory is propounded by Gerald’s counterpart, professor Ronald Dworkin, who asks a pertinent question: what if the person being forced to live a certain way post the paternalistic intervention is not happy and he regrets this intervention? This criticism has been raised in the Indian context as well, wherein attempts at making parental consent necessary in marriages has been seen as restricting an individual’s right to life.

Is it right to interfere in a person’s life just because we think that it will improve the person’s moral state, despite such an act being against his happiness? Even Ten Chin Liew, in his very definition of moral paternalism, underlies a presumption of absence of full and free consent of the individual. Since, matrimonial alliances are entered by the full and free consent of the partners, moral paternalism by the State should have no role in governing these alliances.

Another jurist, C. Edwin Harris, argues that if a person rationally takes a decision, then he cannot be refrained from committing such an act in the name of paternalism. Thus, the justification by the State that it is acting as a guardian of the moral fabric of the society fails, because the individual has full right to take a decision governing his personal life.

Right to marry a person of one's choice

Another pertinent aspect is that in 2014, the Supreme Court, while taking suo moto cognisance of a woman being gang-raped because she married a person from a different community, observed that the right of a person’s choice to marry whom she pleases in an inherent part of individual dignity and intrinsic to Article 21.

The Law Commission of India in its 242nd report on 'Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework' said that non-interference of any third party, including parents, other family members and vigilante groups, and respecting individual preferences in matters of matrimonial alliances, are hallmarks of a progressive society. These aspects symbolise progression from political democracy towards the attainment of social democracy.

In Shakti Vahini v. Union of India, the court observed that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognised under Articles 19 and 21 of the constitution. Such a right has the sanction of constitutional law.

Similarly, in Lata Singh v. State of Uttar Pradesh, the top court held that a person who has attained the age of marriage has a right to decide whom does he/she want to marry and no statute can curtail the exercise of such right. Furthermore, in Shafin Jahan v. Asokan K.M, the court felt that it is the State’s duty to preserve the individual’s right to choose a partner for himself freely without any coercion whatsoever.

Also read: The Interface of ‘Love’ and ‘Jihad’ Is a False Indian Articulation

The myth around divorces in India

A misplaced assumption is that the traditional arranged marriage system leads to stability in the institution of marriage with low divorce rates. It is not necessarily a healthy indicator but a privilege which most of the Indian women are deprived of due to the stigma around divorce and social pressure.

According to the National Family Health Survey, the majority of divorce cases are related to instances of abuse. The survey also highlighted that nearly 30% of married women are victims of domestic abuse. However, as many as 77% of the victims choose not to speak up against abuse.

Another reason behind low divorce rates is the prevalence of instances where husbands abandon their wives without formally filing for divorce to evade legal responsibilities. Men often enjoy the privilege of being able to abandon their spouses without formally filing for divorce, while women in conservative Indian families are often raised to internalize the expectation of unconditional compromise, resulting in shattered self-esteem.

Recently, in Dr Nirmal Singh Panesar v. Mrs. Paramjit Kaur Panesar, the Supreme Court recognised “irretrievable breakdown of marriage” as a valid ground to seek divorce and has waived the six-month waiting period. This has provided some hope to couples trapped in unhealthy marital lives.

Prioritising forced stability in the marriage at the cost of normalising and neglecting hopeless compromise, domestic abuse, marital rape and abandonment would prove to be fatal for gender equality in India. The State’s act of curbing consent in case of marriage snatches away a women’s right to annul such a marriage, thereby, forcing them into unwanted relationships, leading to their institutional exploitation by the society.

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