Aug 9, 2010
The Bombay High Court will now decide if the right to a live-in relationship can be extended to two consenting adults and first cousins.
Inderpal Walia, a 37-year-old merchant navy officer who married his first cousin Harmandeep in 2009, has moved a writ petition of habeas corpus in the HC after his wife was forcibly taken away by her family in September 2009.
Walia’s counsel Bhavesh Parmar, while admitting, that their marriage is null and void under the Hindu Marriage Act (HMA, 1955), argues that while as cousins they may not be allowed to marry, they have the right to live together as consenting adults.
“After all,” he argues, “There has been a plethora of judgments by the Supreme Court which has allowed consenting majors to live together. We have pleaded the same in our arguments that will be submitted across the bench.”
Walia claims, despite his efforts to establish contact with his 19-year-old wife, he has not seen or heard from her since September 13 last year. The primary concern, adds Parmar, is to produce Harmandeep in court.
In his petition he has detailed the dramatic circumstances under which they met and married according to Arya Samaj rituals in Mumbai. However, he alleges, on September 13, she was whisked away by her mother and relatives pretending to orchestrate a reunion with her ailing father.
When Walia tried to stop them by pulling the chain of the Frontier Mail, in which they were travelling, he was fined. The family, with Harmandeep, disappeared after the train reached Surat.
Parmar adds, “The girl’s family has filed a divorce proceeding in the district court at Amritsar where they have admitted the marriage took place at the insistence of some relatives.
As per law, the marriage is void and there is no question of divorce. But she is a major and as per the Supreme Court judgment she can be in a live-in with my client, who is also a major.”
It may be noted that a division bench of Justice B H Marlapalle and Justice Roshan S Dalvi which heard the matter has already issued notices to the girl’s family including her father to produce Harmandeep before the court and they were supposed to do the same on August 9, but none were present in the court on Monday.
When contacted, Harmandeep’s mother did not allow us to talk to her, but said, “We could not make it because my husband is not keeping well. Our daughter was not happy with him.”
The HC will now deliberate on the matter, which could seriously challenge the way society has traditionally defined incest and intimacy between two consenting individuals.
What the Hindu Marriage act says
Prominent family lawyer Mrunalini Deshmukh says that Section 5 of the HMA define a valid marriage.
“The provisions have been based on Hindu law which was earlier uncodified but now has been codified. Under HMA, marriage between Sapindas (individuals from the same pind) is prohibited and also where parties are within the degree of prohibited relationship, marriage is prohibited, unless of course there is a specific custom that allows them to do so,” she said.
Blood related marriages are called consanguineous marriages - sanguine meaning blood - this is to prevent any genetic problem in the offspring. Marriages within the gene pool may lead to abnormality in the offspring, says Deshmukh.
“But the law is still not pronounced on whether or not individuals who fall within these categories, which are prohibited under law to marry each other, can live-in. It will be interesting to see the outcome of such issues,” she added.
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