Maharashtra National Law University, Mumbai

First Draft

In the Subject of Family law

TOPIC: INTER-CASTE AND INTERRELIGIOUS MARRIAGE:

SOCIAL AND LEGAL ISSUE

Submitted To: Prof. R.K. Sinha Submitted By: Ranu Anand Chouhan

(Course Instructor) Roll no. : 2018043

1|Page
 TABLE OF CONTENT

SR. NO. CHAPTER PAGE NO.

1 INTRODUCTION 3

2 TRADITIONAL APPROACH 3-4

3 MODERN APPROACH 5

4 LEGAL FRAMEWORK 6

5 JUDICIAL APPROCH 7-8

(LIST OF CASES)

 Lata Singh vs. State of UP

 Babli Rani and Another vs State of Punjab
and Others
 Divya vs Illavarasan

6 ROLE OF STATE 8-10

7 CONCLUSION 10-11

8 BIBLIOGRAPHY 11-12

2|Page
 INTER-CASTE AND INTERRELIGIOUS MARRIAGE: SOCIAL AND
LEGAL ISSUE

CHAPTER-1 : INTRODUCTION

In our country most marriages are governed by the specific personal laws governing each
religion. However in extra ordinary circumstances when such nuptial ties are between two
people of different castes, the Special Marriage Act, becomes the mandate. Our society has
been grappling in the shackles of the caste system, since the very ancient times. Grave
discrimination has been made on grounds of caste. There have been extremely stringent rules
enforcing the same. Although we have come a long way in developing liberal perceptions,
modern day society still has orthodox views and opinions inculcated within. Recently the
process of modernization, westernization, democratization and development has brought lots
of positive changes in Indian society. The major objective of the present paper is to
understand the social and legal issues involved in inter-caste and inter-religious marriages in
India.

When it comes to marriage between different castes and communities then it is like a taboo
for most of the people. But it is believed by various social reformers that in order to remove
this barrier of caste and religion, it is very much necessary that inter-caste and inter-religious
marriages must take place. Marriages are regarded not only as a social institution in India, but
also as a sacrament. In Hindu mythology, it is considered as the one of the most important
‘sanskara’1.

CHAPTER-2 : TRADITIONAL APPROCH TOWARDS INTERCASTE

AND INTERRELIGION MARRIAGE

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”2 and this required
1
Samarth Trigunayat, Inter-caste & Inter-Religious Marriages: Social And Legal Issues, March 2,2019 ,
https://www.lawctopus.com/academike/inter-caste-inter-religious-marriages-social-legal-issues/
2
Debarati Halder and K. Jaishankar, Love marriages, inter-caste violence and therapeutic jurisprudential
approach of court in India, https://www.researchgate.net/publication/319456790_Love_marriages_inter-
caste_violence_and_therapeutic_jurisprudential_approach_of_the_courts_in_India

3|Page
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. 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 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 system3, 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.

Gandhi’s view on inter-caste marriage, though the Vedas and the Mahabharata are filled with
incidents of inter-dining and inter-marriage, these are not a matter of religious regulation. No
one can be compelled to dine with any other or contract marital relations, as these are matters
of personal choice. Such social habits will get regulated by themselves gradually within the
activities of the social system. According to Gandhi, inter-dining and inter-caste marriage are
not essential for the promotion of the spirit of brotherhood or for the removal of
untouchability. At the same time, a forcible restriction would prevent the growth of any
society and linking these restrictions to Varnadharma or caste is biased. By this it is clearly
understood that such inter-caste marriage cannot take place by force, but only through mutual
consent and willingness. Gandhi believed that, Inter-dining and inter-marriage are matters of
individual choice.4

3
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.
4
Gandhi’s conception of inter-caste marriage, Sodhganga,
http://shodhganga.inflibnet.ac.in/bitstream/10603/125122/8/08_chapter%204.pdf

4|Page
CHAPTER-3 : MODERN APPROCH TOWARDS INTERCASTE AND
INTERRELIGION MARRIAGE

Caste in today’s India is not what it once was. It is no longer a distinct occupational group,
fastidious prevention of inter-dining is often impossible, and people from many castes and
even different caste-hierarchies come into contact with one another on a regular basis. Yet,
caste remains relevant when it comes to marriage and, of the many social practices in India

that implicate the caste system, marriage is arguably the most central.

The continued resilience of caste boundaries has put forward three principle arguments. One
view argues that the continued relevance of caste identity is rooted in the practices of
refashioning, whereby lower ranked groups have adopted new names, customs, and practices
for the purpose of moving up the rank ladder. Another view contends that by classifying
themselves as separate ethnic groups, caste groups have redefined divisions among
themselves. Where the state has recognized these differences in their census enumeration or
in affirmative action policies to compensate for past discrimination or persistent economic
and social backwardness, it has assisted in this process. Still others situate the persistence,
and even enhancement, of caste divisions in the culturalization of caste. Instead of
representing descent-based disparity, this perspective argues, the institution of caste is being
viewed as a site of multicultural coexistence. Different castes are all equal but remain
separate because of distinct cultural identities. All three views point to the continued
significance of caste and the survival, if not strengthening, of caste boundaries in modern
Indian society. This, in turn, suggests an equal preference for endogamy across and within
caste groups. However, there is actually very limited empirical work that has systematically
probed the preference for endogamy across and within caste categories.

The research that has been done on caste and intermarriage in India suggests that even well-
educated, urban-dwelling Indians still largely adhere to traditional caste norms when it comes
to marriage. In correspondence-based field experiment conducted across multiple Indian
matrimonial websites finds that a substantial number of participants reveal a preference for
crossing caste boundaries in the arranged marriage market. The lower-ranked SCs express a
stronger preference for crossing caste boundaries than the higher-ranked UCs.

5|Page
CHAPTER-4 : LEGAL FRAMEWORK

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).

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 marriage)’ 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.

6|Page
CHAPTER-5 : JUDICIAL FRAMEWORK

In the case of Lata Singh vs. State of UP5,18 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.

In Babli Rani and Another vs State of Punjab and Others6, 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.

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 marriage (Vijay Kumar, August 4, 2013). Divya, a caste Hindu girl
(middlecaste) 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
5
Lata Singh Vs. State of U.P. and another (2006) 5 SCC
6
CRM-M 29618 of 2009 (O&M)

7|Page
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.7

CHAPTER-6 : ROLE OF DIFFERENT STATE IN PROMOTING

INTERCASTE MARRIAGE

Encouraging Inter-Caste marriages is one of the ways by which the Government aims to
reduce caste prejudice and caste based discrimination. The Ministry of Social Justice &
Empowerment has been funding a centrally Sponsored Scheme where in Central assistance is
provided to the State Governments and Union Territory Administrations, towards incentive
for inter-caste marriages, where one of the spouses belongs to a Scheduled Castes. This
scheme was part of the implementation of the Protection of Civil Rights Act, 1955 and the
Scheduled Castes and the Scheduled Tribes (Prevention of atrocities) Act, 1989.8

A key element of the central assistance to states is to provide incentive for inter- caste
marriages, where one of the spouses is a member of a Scheduled Caste. The quantum of
incentive amount is decided by the state government. It is currently between Rs 10000 and Rs
500000 in various states. Rajasthan provides the highest incentive for an inter-caste marriage
(Rs 5 lakh) followed by Rs 2 lakh in Madhya Pradesh and Rs 1 lakh in Goa. Most other states

7
Rohini Mohan, Jeans, 'Love Drama' and the Electoral Spoils of Tamil Nadu's Hidden Caste Wars,
https://thewire.in/politics/tamil-nadus-hidden-caste-wars.

8
Rakesh dubbudu, Government eases norms as Dr. Ambedkar Foundation Scheme for Inter-Caste Marriages
fails to take off

8|Page
provide Rs 50,000 as incentive. West Bengal, Jharkhand, Sikkim & Assam provide less than
Rs 50,000 as incentive for an inter-caste marriage.

Maharashtra government, in a historic move for making India a secular place to live in, plans
to introduce a law that will encourage inter-caste and inter-religion marriages. This step aims
to protect and secure couples who may be threatened by acts of honour killing. The couples --
where spouses are from different religions or castes -- have to face various problems,
including social boycott and the threat of honour killing, state Social Justice Minister
Rajkumar Badole told PTI. Maharashtra ranks 4th in the list of honour killings as per
National Crimes Record Bureau (NCRB) Data.

The NCRB, in its report 'Crime in India 2016 Statistics', stated that out of a total of 69 such
cases reported to it in that year, eight people were of inter-caste couples killed in the name of
'honour killing'.
EXISTING SPECIAL MARRIAGE ACT FOR INTER-RELIGION MARRIAGES
HAS GAPS

 Badole said that the existing Special Marriage Act for inter-religion couples has gaps
that need to be filled

 There are various schemes in India that promote inter-faith marriages but they are not
properly implemented, he noted

 For instance, the Dr Ambedkar Foundation in Delhi gives Rs 2.5 lakh for such
marriages. "Similarly, we are also considering to provide funds to such couples to
start a new life," said the minister

 Badole also noted another drawback in the existing law -- if one of the spouses is
from a backward community and his/her partner is an inter-caste from the general
category, the child born to them is also deprived of the benefits of reservations and
other concessions (given to the backward classes)

9|Page
TOWARDS A BETTER TOMORROW WITH THE INTER-CASTE MARRIAGE
LAW

 A few days back, the minister held a review meeting of the committee constituted to
frame the law and asked it to prepare the draft in the next two-three months

 The state government will speak to law experts from the Muslim community to ensure
that the
 proposed law does not interfere with the Sharia law, said Badole
 The inter-state marriage law committee chairman, CS Thul, said that letters have been
sent to all district superintendents of police to seek information about the number of
complaints pertaining to problems faced by inter-caste couples
 The bill also provides for funds for these couples to start and support new life in case
of social boycott.9

CHAPTER-7 : CONCLUSION

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
physical 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

9
Tanya saihgal, With a law to promote inter-caste marriages, Maharashtra is giving us secularism goals,
https://www.indiatoday.in/education-today/gk-current-affairs/story/law-promote-inter-caste-marriages-
maharashtra-secularism-goals-1228965-2018-05-08

10 | P a g e
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 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 minor 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 courts relying on the protection of women from Domestic Violence Act,
200510. 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 protection
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.

CHAPTER-8 : BIBLIOGRAPHY

10
Act no.43 of 2005.

11 | P a g e
  Richa Garg, Inter-caste and Inter-religious Marriage, Academic: Article on Legal
Issue. https://www.lawctopus.com/academike/inter-caste-inter-religious-marriages.
Accessed on 25th February, 2019

 Debarati Halder and Jaishanker Karuppannan, Love marriages, inter-caste violence,

and therapeutic jurisprudential approach of the courts in India, Research Gate.

https://www.researchgate.net/publication/319456790_Love_marriages_inter-
caste_violence_and_therapeutic_jurisprudential_approach_of_the_courts_in_India

Accessed on 26th February, 2019

 Samarth Trigunayat, Inter-caste & Inter-Religious Marriages: Social And Legal

Issues, Academic: Article on Legal Issues.

https://www.lawctopus.com/academike/inter-caste-inter-religious-marriages-social-
legal-issues/

Accessed on 27th February, 2019

 Gandhi’s conception of inter-caste marriage, Chapter iv, sodhganga.

http://shodhganga.inflibnet.ac.in/bitstream/10603/125122/8/08_chapter%204.pdf

Accessed on 27th February,2019

12 | P a g e