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Love marriages, inter-caste violence, and therapeutic jurisprudential approach

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Chapter 3
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

K. Jaishankar
Raksha Shakti University, India

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 suf-
fer 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.

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 ‘un-
approved 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
DOI: 10.4018/978-1-5225-2472-4.ch003

Copyright © 2017, IGI Global. Copying or distributing in print or electronic forms without written permission of IGI Global is prohibited.

Love Marriages, Inter-Caste Violence, and Approach of the Courts in India

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 dif-
ferent 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 par-
ticular 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.
This chapter examines the issue of TJ from the aspect of Indian court’s execution of laws and guide-
lines to protect such love marriages in India. This chapter follows doctrinal methodology and relies on
secondary data, namely court cases, scholarly articles etc. This chapter is divided in to two parts. The first
part discusses the issue of Indian socio-legal approach to love marriages, honor killing and love jihad; the
second part discusses about to legal approaches to inter caste, inter religious and interstate marriages in
India with special reference to court’s intervention in specific four cases of such sorts of love marriages.
This part further examines the possible TJ approach, which the courts may have exercised in managing
victimisation of women involved in such marriages. This chapter limits its scope with problems of love
marriages between (i) Hindu men and women belonging to different castes, and (ii) love marriages where

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

either of the parties is a Hindu, involved in marriage with individual from other religion and possible TJ
role of the courts from the Hindu family law and the Special marriages Act perspectives and does not
include examination of private laws of other communities, including Muslim and Christians in regard
to love marriages between members of these two communities due to lack of time and available data.

PART I: LOVE MARRIAGES, HONOUR KILLING AND

LOVE JIHAD: SOCIO-LEGAL APPROACH

The modern Indian constitution does not have specific provision to recognise right to marry as per own
choice as a basic fundamental right. Instead, this right stems out from the basic right to life and liberty
under Article 21 of the Constitution, which says, “No person except according to the procedure established
by law shall be deprived of his life or personal liberty.” With the broadening judicial understanding about
right to life and liberty, Article 21 was expanded to cover rights to food,3 shelter,4 privacy,5 etc. In India,
marriages being governed largely by private laws, it was assumed that right to marry and have family
might automatically come within the purview of Article 21.6 Interestingly right to marry and family did
not have a separate understanding regarding ‘right to marry according to one’s own choice (love mar-
riage)’ from right to marry as a societal right until lately. Seeing from legal aspects, there can be four
types of marriages in India: (a) sagotra marriages (as per the Hindu rituals), (b) non-sagotra marriages
(as per Hindu rituals and laws), (c) intra-religious marriages as per personal laws (Muslim, Christian
marriages) and (d) inter caste/religious marriages (as per the Special Marriages Act, 1954). The first two
sorts of marriages may in general involve choice of partners from among their own societies by family
members, or in exceptional cases, choice of partners by the prospective bride or the groom with approval
from the families. In case of arranged marriages there may or may not be pre-marital introduction of the
prospective bride and groom; and in certain cases only when the families have known each other for a
longer time, pre-marital introduction or courtships may be allowed and the respective families would
have decided to make the wedlock at time when prospective bride and groom may have been children.
In all such cases, marriages may be governed by their own personal laws, rituals or customs, which may
have been recognised by the laws of the land; these may include personal laws including Hindu marriage
laws. These marriages may have their own social rituals and customs involving family members, elders
of the particular society or tribe etc.
It may further be interesting to note that many of such marriages and customs are further divided
by the social practices of particular geo-locations. For example, while most Hindu societies in northern
India do not allow marriages within the same Gotra or family, most of the Hindu Societies in Southern
India on the other hand encourage marriages within the Gotra or the families.7 To lay the confusion at
rest, the modern Hindu marriage law, viz., the Hindu Marriages Act, 1955 codified the capacity of each
relationship to enter into marriages under S.3 (g) under the broad head, namely “prohibited relationship”.8
As such, the list of such relationships was further elaborated under S.2 (b) of the Special Marriages
Act, 1954 that provides a list of prohibited relationships for marriages under the 1st Schedule.9 However,
while such listing of prohibited relationships may apparently show that certain Sagotra marriages (as
are held in southern India) are invalid, S.5(iv) and (v) of the Hindu Marriages Act, 1955 clarifies this
by stating that “A marriage may be solemnized between any two Hindus, if the following conditions are
fulfilled............ the parties are not within the degrees of prohibited relationship unless the custom or us-

32

Love Marriages, Inter-Caste Violence, and Approach of the Courts in India

age governing each of them permits of a marriage between the two;” and “the parties are not sapindas of
each other, unless the custom or usage governing each of them permits of a marriage between the two”
The latter two sorts of marriages mentioned above paragraphs may not involve choice of partners by
family members; they may not be necessarily arranged marriages and may in general be love marriages.
Such marriages may be governed by personal laws of the parties involved, as per their own choices of
laws. These may be Muslim marriage laws, Christian marriage laws, Special marriages Act, Arya Samaj
marriages etc.10 However, it should not be assumed that legally inter caste and inter religious marriages
are not permitted in India. Right to life and liberty under Article 21 of the Constitution of India, which
expands its scope to cover right to privacy and right to choose one’s own partner for marriage, family,
right to practice a particular faith or embrace new religion under Article 25 and right against discrimina-
tion on the basis of gender under Article 15 are some of the basic tenets which form the right to choose
one’s own life partner irrespective of caste, religion, language and race.
India being a multi-religious, multi linguistic and multicultural country, the lawmakers felt it apt to
create laws for marriages, which may involve more than one religious, cultural and societal practices and
rituals. With this aim, The Special Marriages Act was created in 1954.11 This law was made specifically
to recognise such special forms of marriages and to facilitate divorces in such cases. This provision
(which extends to all citizens in India and to those domiciled in Jammu Kashmir) in the very first chapter
explains about the degrees of prohibited relationships in S.2.12 It needs to be understood first that norms
regarding relationships for the purpose of marriages and succession of properties had been established
in India by ancient lawmakers. According to these norms, degrees of prohibited relationships include
sapinda relationships, signifying that group of people who offer ritualistic respects to same ancestor/s.
Similarly, Sagotra marriages or marrying within the same Gotra, which further signifies ancestral family
unit, also falls under prohibited marriages as per the ancient marriage laws in India.
The Sapinda relationships, sagotra relationships etc. of the ancient marriage laws later framed the
modern degrees of relationships as recognised by modern laws in India, especially the Hindu marriage
laws.13 Even the colonial rulers maintained these prohibited relationships in marriages when modern
Hindu family laws including marriage, succession and adoption laws were framed. The older Hindu
marriage laws also included inter religious and inter caste marriages as void marriages since such sorts
of marriages were prohibited by ancient lawmakers. The modern Hindu marriage law of 1955 however
has removed such anomalies and made marriages between two Hindus legal unless they are falling within
the prohibited relationships. However, as mentioned above, several customary practices still allow mar-
riages within the prohibited relationships in India; for example, in south India, especially in Tamil Nadu,
Andhra Pradesh and Karnataka, marriages with father’s sister’s son/daughter or mother’s own brother or
mother’s brother’s son/daughter are considered legal; similarly, in northern India, especially in Punjab,
marriage with brother’s widow is also considered legal. This has been made possible due to exception
clauses, which give preference to existing customary practices in a particular society, which is ethically
and morally not against laws of the country as well as societal health as a whole. Nevertheless, at the
same time, these exceptions are not applicable to other societies where such marriages are void as per
customary practices of those societies. As such all other modern marriage laws in India have maintained
this norm for prohibited relationships in their respective clauses
As researchers have pointed out, in above sorts of arranged marriages and love marriages with
approval from the families, mostly brides are chosen on the basis of their chastity, moral values for
making good homes, adjustment capacities with other members of the family (Desai & Andrist, 2010)
and necessarily reproductive abilities. On the contrary, grooms are chosen mostly based on his earning

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

capacity, integrity towards family etc. (Caldwell, Reddy & Caldwell, 1983; Desai & Andrist, 2010).
Further, in India, marriages are made between families and not necessarily between two individuals.
As such, families thus united may add to the unit of families who may eventually fall under prohibited
or not prohibited relationship under the private laws. Families thus united, may also play crucial role
in distribution of properties, including landed properties (Caldwell, Reddy & Caldwell, 1983; Desai &
Andrist, 2010; Halder & Jaishankar, 2008).
Love marriages involving choice of partners from different castes and communities or geo locations
may not be approved by the family members or the society of either the bride or the groom or both on
various grounds including fear of dilution of particular social understandings, moral values and division
of properties amongst individuals belonging to different community or social unit (Caldwell, Reddy &
Caldwell, 1983). In Indian value system, love marriages against the wish of the family members or the
elders of the community or society are considered as extreme form of revolt against the established family/
community or social norms. The social mindset has been so set also because of the historical past in India
where local invaders from different tribes as well as non-Hindus including Muslims and Christians had
from time to time invaded cities and destroyed the socio-economic and cultural structure of the existing
societies. The fear of sexual exploitation of unmarried young girls by foreign settlers, including Muslim
and other colonial rulers and grabbing of the property in the name of forceful dominance was one of the
key factors for many Indian societies from different geo-locations to restrict marriages within the sect.
The medieval Muslim rulers avoided disturbing existing Hindu personal laws, which already had catego-
rised women as unsuitable natural heirs. However, son- in-law could still be considered as suitable heir
for those who did not have sons (Halder & Jaishankar, 2008, p 24). Incidentally, such apprehension was
also the key factor for conducting marriages within sects at very young ages and for performing heinous
rituals like Sati (Halder & Jaishankar, 2008, p 24).14 Historically families thus affected by invaders or
rulers, were socially shamed due to the ‘polluting’ of the chastity of women by attackers or invaders
from different sects/tribes/religion/ countries. Such women were barred from returning to their families
and in order to save the honour of the families, several of such women and girls were killed by family
members or by the community members in the name of honour.
With the Bengal renaissance during the 19th and early 29th century, the newly enlightened youth were
encouraged to break the orthodox social norms relating to marriages. Inter-caste, inter-religious mar-
riages, widow remarriages and prevention of “sati” were encouraged not only by the social reformers
(Chaudhuri, 2010), but also by the colonial British government who passed several laws, including the
Indian Penal Code,15 with provisions prohibiting torture on women, caste related violence, murder and
instigating religious unrest, which may necessarily occur due to inter-religious/caste marriages (Halder
& Jaishankar, 2008). However, the colonial government like their predecessor medieval Muslim rulers,
avoided disturbing the customary laws relating to marriage and succession and hence no uniform law
was created to regularise inter religious marriages or to reintegrate the couple or child born from inter
caste or inter religious marriage with families for succession purposes. This lacuna in laws had further
enlarged the social exclusion of the couple who had married inter caste, inter religious out of their
own consent and wish. It must also be noted that since medieval period, women were not considered
as suitable heirs to the ancestral properties (Halder & Jaishankar, 2008). This further had discouraged
welcoming of couples married against the wish of the family members into the family and community
as well as in the society as a whole. This trend has continued even after India gained independence and
reformative laws like the Special Marriages Act, (1954) were introduced to remove anomalies related

34

Love Marriages, Inter-Caste Violence, and Approach of the Courts in India

to inter-caste/religious marriages, succession rights of women and children born out of such marriages
(See Halder & Jaishankar, 2008).
Post Babri Masjid demolition (1991), which caused major religious riots in India post-independence,
there emerged another disturbing trend of ‘love jihad’ which has further encouraged non acceptance
of love marriages by families, communities and societies. While many researchers tend to address it as
Hindu fundamentalist groups’ propaganda against conversion of Hindu women to embrace Islam for
marriage (Gupta, 2009), a deeper research is needed to understand the relationship between reluctance
to accept inter religious marriages by traditional Hindu societies and judicial understanding in this re-
gard. It needs to be understood that the Constitution of India provides freedom of religion under Article
25, which extends to freedom of conscience and free (i) profession, (ii) practice and (iii) propagation
of religion. This implies that conversion to another religion due to marriage must be based on free will
of the parties. Neither of the parties must be coerced to either marry or converse to other religion to
embrace a particular religion or renounce any religious belief or practices because of proving their love
to their partner. This understanding along with the issue of Love Jihad or Romeo Jihad came into light
with the case of Shansha vs. State of Kerala,16 where it was observed that certain groups of Muslim youth
were allegedly alluring Hindu and Christian girls by way of love and promises to marriage to convert
to Islam. The court rejecting the plea for anticipatory bail sought by the main perpetrator who allegedly
took two girls for converting to Islam, emphasised upon free will to convert and embrace any religion
as per Article 25 of the Constitution of India, rather than coercing by any means including by way of
showing love and affection and praising about one particular religion demeaning another only to make
the woman renounce her faith in the later.

PART II: LEGAL MANAGEMENT OF AFTER EFFECTS OF

INTER-CASTE, INTER-PROVINCIAL MARRIAGES WITH
THERAPEUTIC JURISPRUDENTIAL APPROACH

The above discussion lays down several factors regarding acceptance and non-acceptance of love mar-
riages (especially inter caste and inter religious marriages) in India. As mentioned above, presently, the
Special Marriages Act, 1954 is used for regulating inter religious marriages and for marriages where
concerned parties wish to have different form of marriages different than that as prescribed by personal
marriage laws.17 It is essential to note that India has a diverse culture due to several socio-cultural prac-
tices including marriage rituals. Inter-caste and inter-religious marriages act as positive bridges between
different communities. Keeping this in mind, courts in India of late have started applying restorative
principles to save the marriages rather than allowing the parents or influential elders in the family to
use the legal powers to break the marriages based on frivolous grounds including difference of caste,
cultural practices, different food habits etc. This is evident from the examples below:
In the case of Lata Singh vs. State of UP,18 the Supreme Court of India after examining the plea of
the petitioner Hindu woman, who had an inter-caste marriage, reversed the order of the sessions courts
whereby the petitioner’s husband’s sisters and cousin were taken into custody on a complaint by the
brothers of the petitioners. The Supreme Court took a welfare decision to criminalise those who actually
intended to harass the petitioner and her husband for such inter-caste love marriage. This case crated
a landmark example in the judicial understanding of love marriages in India and the principles were
followed in many other cases including cases like Babli Rani and Another vs State of Punjab and Oth-

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

ers (decided on 22 October 2009).19 In the latter case, the petitioner woman sought direction from the
court towards the respondents, namely the police officials, to provide them security and safe passage
to reach their destination in the State of Punjab. Vide the petition thus filed, the petitioners invoked
inherent jurisdiction of the High Court under S.482 of the Indian Criminal Procedure Code where the
court had ordered for protection of the couple and ensuring safe passage for their destination from their
family homes. It needs to be noted that S.482 of the Criminal Procedure Code itself is a therapeutic law,
which says that “Nothing in this Code shall be deemed to limit or affect the inherent powers of the High
Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent
abuse of the process of any Court or otherwise to secure the ends of justice.” The inherent purpose of
this provision is to prevent abuse of power invested upon government machinery including the criminal
justice machinery. As the wordings of the provision states, the provision can be used to (i) give effect to
any order under the criminal procedure code, (ii) to prevent abuse of the process of any court and (iii)
to secure the ends of justice.
As such, in the above mentioned case of Babli Rani, this provision was used mainly to secure ends
of justice keeping in view of the opinion of the Supreme Court provided in the Lata Singh case which
stated as followed:

... Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the
caste system. However, disturbing news are coming from several parts of the country that young men
and women who undergo inter-caste marriage, are threatened with violence, or violence is actually
committed on them. In our opinion, such acts of violence or threats or harassment are illegal and those
who commit them must be severely punished. This is a free and democratic country, and once a person
becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not
approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off
social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of
violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. We,
therefore, direct that the administration/police authorities throughout the country will see to it that if
any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man
who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and
anyone who gives such threats or harasses or commits acts of violence either himself or at his instiga-
tion, is taken to task by instituting criminal proceedings by the police against such persons and further
stern action is taken against such persons as provided by law. We sometimes hear of `honour’ killings of
such persons who undergo inter-caste or inter-religious marriage of their own free will. There is noth-
ing honourable in such killings, and in fact, they are nothing but barbaric and shameful acts of murder
committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we
stamp out such acts of barbarism.

This particular view of the Supreme Court has been seen as a landmark vision to not only to invoke
inherent powers of the courts, but also to provide protection and uphold the right guaranteed under
Article 21 (right to life and liberty and property) to people interested in love marriages irrespective of
caste or creed.
However, at the same time, the courts did not consider applying TJ approach to such cases fully.
As such, when the couples so married, approached courts for order for protection or for orders against
harassments, the courts instead of counselling the couples and then pronouncing prohibitory orders

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

against the harassers, took steps only for the later, leaving much scope for future domestic fights pulling
disturbing past. It is however understandable that in most of the cases, the court’s primary concern was
to save the lives of the man and his wife as in most of such cases the couples would have approached the
courts after the woman’s family would have either lodged complaints with the police alleging that the
she had either been abducted or went missing (which generally initiates suspicion that she had eloped
with the boy after being thoroughly brain washed); such police complaints preferred by woman’s family
members would invariably make them more powerful in the eyes of law and they could misuse law to
even kill the couple, as is evident from the case details of Babli Rani. Now, it becomes important here to
discuss as why courts in India should follow TJ principles in cases such as these, which involve mental
wellbeing of the parties involved in the social activity, viz., marriage.
TJ in regard to criminal justice system is not new to the Indian courts. In 1977, Justice Krishna Iyer
had emphasised upon therapeutic role of laws in awarding punishment, which may correct the behaviour
of the offender.20 However, Justice Iyer’s views were more from the offender’s rights perspective and
the modern principles of TJ as propounded by Professors David Wexler and Bruce Winnick are more
from the victim’s rights perspectives (Wexler & Winnick, 1996). The modern TJ principle focuses the
impact of laws on the psychological and emotional wellbeing of people, thereby expanding the scopes
of the therapeutic role of the laws on victims, offenders as well as common law abiding civilians. As
per this principle, courts have greater role as problem solvers (King, 2009). Judges and lawyers play key
roles in the process of dispute resolution emphasising law’s therapeutic values in criminal cases includ-
ing physical harm, drug abuse, domestic violence, criminality arising out of abuse of patients suffering
from mental disorder etc.
Those courts, which have adopted TJ mechanism to resolve problems, are termed as ‘problem solving
courts’ (King, 2009). As such, problem-solving courts do not limit their scope with awarding punish-
ment to the perpetrators; they try to heal the wrong and restore justice through application of therapeutic
values of laws. This process may involve several Restorative Justice Mechanisms, including apology,
forgiveness and reconciliation (Daicoff, 2013), victim compensation, administration of retributive justice
for correctional purposes and community supervision. While in India, courts have stated following TJ
principles in small scales especially through alternative dispute resolution forums, the procedure still needs
more revamping for turning courts into ‘problems solving courts’ within the meaning of TJ principles.
Still now, we have not come across any case on love marriages where courts have applied TJ principles
in India. Such opportunity came along with the case of Divya and Illavarasan, who had inter-caste mar-
riage (Vijay Kumar, August 4, 2013). Divya, a caste Hindu girl (middle caste) married Illavarasan, a dalit
(lower caste) boy in 2012 in Dharmapuri District of Tamil Nadu, India, against the wish of the families,
especially that of the earlier. The news of this inter-caste marriage created unrest at the native place of
Divya and her father committed suicide due to loss of his prestige in his community and fear of social
ostracization. When her mother filed a Habeas corpus petition seeking court’s intervention in bringing
back Divya to her parental family, Divya was produced before the court, she was asked about her wishes
(where she intended to stay). In such interaction, the court did not counsel Divya regarding her rights
to stay back in her marital home. She later consented to return her paternal home with her mother. The
point to be noted here is that both the parties were adults when they got married and they were legally
eligible to consent for the marriage. As such, the court could have counselled the man and the wife as
well as the parents from both the sides to amicably settle the issue and accept the marriage. However,
when the girl agreed to go back, apparently, the husband became extremely depressed and consequently
he allegedly committed suicide (Vijay Kumar, August 4, 2013). This created an extremely bad example.

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

Also, the courts could not but be mute spectator for the tragic brutal murder of another Dalit boy
(lower caste) V. Shankar, who was murdered due to his marriage with a caste Hindu girl (middle caste)
a few years later in the Southern Tamil Nadu, India (Vimal Kumar, & Vijay Kumar, 2016). Noticeably in
the latter case, Shankar and his wife did not seek court’s help for protection even though the girl’s family
also threatened them. Three armed men who were appointed by his father-in-law attacked Shankar and
killed him on a busy road, and the CCTV cameras installed for traffic management captured the whole
incident and instantly the video was leaked in WhatsApp, YouTube and Facebook.21 Before the probes
begun for his murder and gruesome attack on his wife, social media including Facebook were flooded by
groups and pages created in favour of such killings for inter caste marriages with the video as a warning
signal for those who dare to get married inter caste or inter religious.22 Alarmed by such wide spread
hate messages, the Madras High court in the case of B. Dilip Kumar vs Secretary to government, Tamil
Nadu,23 took suo motu decision to implement a set of guidelines to save couples who are inter caste and
inter religious married against the wish of their families or communities. These guidelines are as follows:

1. Creation of Special Cells in every district comprising of the Superintendent of Police, the District
Social Welfare Officer and District Adi-Dravida Welfare Officer, to receive petitions/complaints
of harassment of and threat to couples of inter-caste marriage.
2. Creation of a 24-hour helpline by the Special Cells, to receive and register complaints and to
provide necessary assistance/advice and protection to the couple.
3. The State of Tamil Nadu to examine the possibility of generating FIR automatically, upon the re-
ceipt of complaints from the aggrieved couple via the Crime and Criminal Tracking Network and
Systems.
4. The Special Cell formed in each District are to monitor the receipt of complaints through helpline
or otherwise, the registration of the same and the action taken by the concerned police on a regular
basis.
5. The Station House Officer would be duty bound to provide protection to the couple who are moving
about within their jurisdiction.
6. The special cells are to take proactive steps to provide counseling sessions to the parents of the
aggrieved couples.
7. The State is to allocate funds to be utilized by the Special Cells in order to eradicate the menace
of honour killing.
8. In the event of any untoward incident, the Special Cell is to fix responsibility upon the officers who
failed in their duty to protect the couple. (Editor, 2016 )

Even though such guidelines regarding setting up of monitoring cells by the courts is indeed an ex-
ample of practising TJ principles, but still, there remains lacuna in achieving the goals set by modern TJ
principles. Further, in this regard, mention must be made about the Law Commission of India’s proposed
Bill, Prohibition of unlawful assembly (interference with matrimonial alliance) Bill 2011. This bill aims
to penalise and thereby prohibit unlawful assembly whereby planning may be made to interfere with love
marriages. However, we argue that such Bill, when transferred in to the Law, may actually multiply the
number of laws created to safeguard rights of men and women to marry according to their own choice.
The endeavour may still fail to achieve its aim unless courts emphasise upon implementation of the
order above mentioned along with the laws meant for protection and rehabilitation of the stakeholders.

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The failure of this endeavour was noticed within few months of passing the above order of the Madras
High court with the gruesome murder of another woman in Southern Tamil Nadu, whose brother had
an inter-caste marriage with the daughter of the assailant (Special correspondent, 2016). As such, this
incidence proves that still now, neither the courts, nor the laws could provide holistic assurance, support
and protection to couples and their families who married inter caste or inter religious against the wish
of the family members of either of the bride or the groom. Further, the above mentioned order of the
Madras High court is area-specific and still now neither the Supreme court nor the others courts in other
parts of India could successfully test the positive effects of this particular order. It is however to be noted
that to make such orders and laws effective, the criminal justice administration must take measures to
create awareness programmes for civilians and sensitisation programmes for police officials who may
be dealing with such cases. Unless such steps are adopted, the courts may not turn into problem solving
courts and neither the laws may achieve the aims of TJ.

CONCLUSION

This chapter researches about love marriages, inter-caste/religion based violence that may occur as result
to such marriages and the role of the courts from TJ aspects. As it can be seen from the above discussion,
while the courts could take preventive and punitive steps after the violence occurred as results of love
marriages, there is no follow up available as to the emotional-social wellbeing of the women victims of
the love marriages that have been discussed above. While in the case of Lata Singh, the court ordered for
arrest and punishment for those who tried to harass her and her husband with false allegations and physi-
cal assaults; in Babli Rani’s case, the court ordered for ensuring safe passage for her and her husband to
their destination and arrest of those who threatened to harm her and her husband; in the case of Divya,
she was reunited with her mother as her own wish and within a day and her husband committed suicide;
in the case of Kaushalya, while her husband died instantly and her father and others who actually killed
her husband, were arrested and were also denied bail, she herself wanted to join her dead husband’s
family. Still now, no constructive attempt has been made either by the courts to know whether these
women had faced any other sorts of violence emotionally or physically from the families with whom
they intended to continue living, or from any other persons including the society as a whole. It needs to
be remembered that the scope of TJ extends to emotional wellbeing of the victims as well and this can
be achieved only when the problem solving courts engage governmental as well as non-governmental
stakeholders to follow up the present condition of the women thus affected.
In India, there is a general practice of follow-up of the victim’s conditions when the victim is a mi-
nor and his/her custody is entrusted with a fit person, who may include his/her parents or guardian.24
However, such victim oriented approach is largely absent in cases of victims of violence arising out of
love marriages. This is mainly because women may prefer to have privacy, confidentiality, and no more
contacts from the criminal justice administration after they have encountered such violence due to their
own choice. However, this does not mean that such women may not encounter any more violence or
victimisation from the families with whom they prefer to live afterwards. They may undergo emotional
torture from the members of such families especially when the latter may feel that the victim women
were the sole reasons for the loss of lives of their dear ones or physical harassment and financial loss
that may have been caused due to repeated visits to lawyers, police stations and the courts. In such cases
when the victims may undergo such torture, several lawyers may suggest to seek remedy from family

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

courts relying on the protection of women from Domestic Violence Act, 2005.25 Nevertheless, this in
turn, may become anti-therapeutic for such victims as this may pile up more problems and may finally
make her to sever ties with the family she chose to live with. Hence, it is suggested that in such cases,
the courts, which must turn into problem solving courts, must adopt a holistic welfare approach towards
the victim women and their families who may have been primarily victimised. This approach must also
include proper counselling and follow up in the same model as that of Juvenile Justice (Care and pro-
tection of Children) Act, 2015. Unless such measures are adopted, the courts may never provide proper
justice to people intending to marry according their own choice defying orthodox social rules and the
aims of TJ may never be achieved.

REFERENCES

Caldwell, J. C., Reddy, P. H., & Caldwell, P. (1983). The Causes of Marriage Change in South India.
Population Studies, 37(3), 343–361. doi:10.1080/00324728.1983.10408866
Chowdhuri, S. (2010). Women, Rebirth and Reform in Nineteenth Century Bengal. In S. Chaudhuri
(Ed.), Renaissance Reborn (pp. 159–183). Delhi: Chronicle Books.
Desai, S., & Andrist, L. (2010). Gender Scripts and Age at Marriage in India. Demography, 47(3),
667–687. doi:10.1353/dem.0.0118 PMID:20879683
Directions issued to the Tamil Nadu Government to create Special Cells to tackle the growing menace
of honour killings in the State. (2016). Retrieved from http://blog.scconline.com/post/2016/04/19/
directions-issued-to-the-tamil-nadu-government-to-create-special-cells-to-tackle-the-growing-menace-
of-honour-killings-in-the-state/
Gupta, C. (2009, December19). Hindu Women, Muslim Men: Love Jihad and Conversions. Economic
and Political Weekly, 44(51).
Halder, D., & Jaishankar K. (2008). Property Rights of Hindu Women: A critical review of succession
laws of Ancient, Medieval, and Modern India. Journal of Law and Religion, 24, 101-122.
King, M. (2009). Solution-Focused Courts Bench Book. Available online through the Australasian
Therapeutic Jurisprudence Clearinghouse and on the bibliography of the TJ website: www.therapeu-
ticjurisprudence.org
Meyer, J. J. (1989). Sexual Life in Ancient India: A Study in the Comparative History of Indian Culture.
New Delhi: Motilal Banarsidass Publishers.
Rao, S. G. C. V. (2009). Family Law in India (9th ed.). Hyderabad: S. Gogia & Company.
Special Correspondent. (2016). Residents threaten to boycott poll. The Hindu. Retrieved from http://
www.thehindu.com/news/national/tamil-nadu/residents-threaten-to-boycott-poll/article8603028.ece
Vijay Kumar, S. (2013). Divya provides crucial evidences. The Hindu. Retrieved from http://www.the-
hindu.com/news/national/tamil-nadu/divya-provides-crucial-evidence/article4986062.ece

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Vimal Kumar, R., & Vijay Kumar, S. (2016). Dalit youth murdered for marrying caste Hindu girl.
The Hindu. Retrieved from http://www.thehindu.com/news/national/tamil-nadu/dalit-youth-killed-for-
marrying-caste-hindu-girl/article8350431.ece
Wexler, D. B., & Winick, B. J. (Eds.). (1996). Law in a Therapeutic Key: Developments in Therapeutic
Jurisprudence. Durham, NC: Carolina Academic Press.

ENDNOTES
1
As per the Varna system, the society was divided into four categories: Brahmins or the priests,
Kshatriyas or the warriors, Vyasyas or the traders or merchants and Sudras or those categories of
people who were engaged in doing menial work including slavery, serving the other three higher
categories. Varna is considered to be the mother of present caste system in India.
2
Lata Singh Vs. State of U.P. and another (2006) 5 SCC.
3
For example, see Kapila Hingorani vs State of Bihar (2003 44 SCL 429 SC).
4
For example, see the case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan,
(1997) 11 SCC 123.
5
See for example, Maneka Gandhi v. Union of India & Anr. 1978 (2) SCR 621.
6
See R. Rajagopalan v. State of Tamil Nadu, 1995 AIR 264, 1994 SCC (6) 632.
7
See the following paragraphs for further explanation on this issue.
8
(g) “degrees of prohibited relationship ” - two persons are said to be within the “degrees of prohib-
ited relationship”- (I) if one is a lineal ascendant of the other; or (ii) if one was the wife or husband
of a lineal ascendant or descendant of the other; or (iii)if one was the wife of the brother or of the
father’s or mother’s brother or of the grandfather’s or grandmother’s brother or the other; or (iv) If
the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or
of two brothers or of two sisters. Explanation.- for the purposes of clauses (f) and (g) relationship
includes- (I) relationship by half or uterine blood as well as by full blood; (ii) illegitimate blood
relationship as well as legitimate; (iii) Relationship by adoption as well as by blood, and all terms
of relationship in those clauses shall be construed accordingly.
9
The List of the prohibited relationships are as follows: Part I: 1. Mother 2. Father’s widow (step-
mother) 3. Mother’s mother 4. Mother’s father’s widow (step grandmother) 5. Mother’s mother’s
mother 6. Mother’s mother’s father’s widow (step-great-grandmother) 7. Mother’s father’s mother
8. Mother’s father’s father’s widow (step-great-grandmother) 9. Father’s mother 10. Father’s fa-
ther’s widow (step-grandmother) 11. Father’s mother’s mother 12. Father’s mother’s father’s widow
(step-great-grandmother) 13. Father’s father’s mother 14. Father’s father’sfather’s widow (step-
great-grandmother) 15. Daughter 16. Son’s widow 17. Daughter’s daughter 18. Daughter’s son’s
widow 19. Son’s daughter 20. Son’s son’s widow 21. Daughter’s daughter’s daughter 22. Daughter’s
daughter’s son’s widow 23. Daughter’s son’s daughter 24. Daughter’s son’s son’s widow 25. Son’s
daughter’s daughter 26. Son’s daughter’s son’s widow 27. Son’s son’s daughter 28. Son’s son’sson’s
widow 29. Sister 30. Sister’s daughter 31. Brother’s daughter 32. Mother’s sister 33.Father’s sister
34. Father’s brother’s daughter 35. Father’s sister’s daughter 36. Mother’s sister’s-daughter 37.
Mother’s brother’s daughter PART II 1. Father 2. Mother’s husband (step-father) 3. Father’s father 4.
Father’s mother’s husband (step-grandmother)5. Father’s father’s father 6. Father’s father’s mother’s

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

husband (step-great-grandfather) 7. Father’s mother’s father 8. Father’s mother’s mother’s husband

(step-great-grandfather) 9. Mother’s father 10. Mother’s mother’s husband (step-grandfather) 11.
Mother’s father’s father 12. Mother’s father’s mother’s husband (step-great-grandfather) 13. Moth-
er’s mother’s father 14. Mother’s mother’s mother’s husband (step-great-grandfather) 15. Son 16.
Daughter’s husband 17. Son’s son 18. Son’s daughter’s husband 19. Daughter’s son 20. Daughter’s
daughter’s husband 21. Son’s son’s son 22. Son’s son’s daughter’s husband 23. Son’s daughter’s son
24. Son’s daughter’s daughter’s husband 25. Daughter’s son’s son 26. Daughter’s son’s daughter’s
husband 27. Daughter’s daughter’s son 28. Daughter’s daughter’s daughter’s husband 29. Brother
30. Brother’s son 31. Sister’s son 32. Mother’s brother 33. Father’s brother 34. Father’s brother’s
son 35. Father’s sister’s son 36. Mother’s sister’s son 37. Mother’s brother’s son. Explanation- for
the purposes of this Part, the expression “husband’ includes a divorced husband.
10
Arya Samaj was a religious movement in India initiated by Swamy Dayanand Saraswati in the 19th
Century. The Arya Samaj movement slowly initiated social reform by breaking strict caste barriers
in regard to education, especially influenced by Vedic ideologies. The Samaj encouraged equality
of all human beings irrespective of their religion and caste who ever embraced Arya Samaj ideolo-
gies. Gradually the Samaj also created its own simple rituals of marriages between two individuals
who are Arya Samajists (even though originally they may belong to different religion, caste or
creed). The marriages performed by Arya Samaj rituals were made valid by Arya Samaj marriage
Validation Act, 1937.
11
Act no.43 of 1954.
12
The prohibited relationships are the same as showed in supra 10.
13
ibid
14
Mughal Emperor Akbar, in order to end enmity with several Hindu kingdoms, had tried to bring
harmony among the different religions, especially Hindu and Muslim by creating a new religion
called as Din-i-Ilahi which emphasised freedom of religion. Unfortunately, his efforts did not see
much success to bring religious harmony including encouragement for inter-religious marriages
and enabling children born out of such marriages to inherit ancestral properties.
15
See for more Indian Penal Code, 1860.
16
Bail Appl..No. 5288 & 5289 of 2009.
17
The opening clause of the Act states that: An Act to provide a special form of marriage in certain
cases, for the registration of such and certain other marriages and for divorce.
18
Lata Singh Vs. State of U.P. and another (2006) 5 SCC.
19
CRM-M 29618 of 2009 (O&M).
20
See the views of Justice Krishna Iyar in the case Mohd.Giasuddin v. State of A.P. reported in (1977)
3 SCC 287. Available at: www.indiankanoon.org/doc/1850315. Page accessed on 19.05.2016.
21
The videos are still available on internet when this chapter was being drafted. For example, see
https://www.youtube.com/watch?v=JQFoYkka1Rc. Accessed on 12.05.2016
22
The authors came across such posts in Facebook which were immediately reported to Facebook.
23
B. Dilip Kumar vs Secretary to Government, Tamil Nadu, WP no. 26991 of 2014, decided on
13.04.2016.
24
For better understanding of this issue, see chapters IV and V of the Juvenile justice Care and Pro-
tection Act, 2015, which discuss about individual care plan and follow up for child in conflict with
law and child in need of care and protection.
25
Act no.43 of 2005.

42

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