India’s Top Court Is Reviewing if Couples Who Elope Should Have the Right To Privacy

Rhea Sharma* knew that dating someone outside of her religion would not be easy. That did not deter her from pursuing a relationship with a Christian man. Sharma is an upper caste Hindu.

Opposition from their families is one hurdle.

The other complexity is the only marriage law available for them, the Special Marriage Act (SMA). Sharma is worried as she and her boyfriend will have to make public their intention to get married, as per the law. “If I go ahead with the marriage, publicly notifying people would bring unnecessary attention and upset my family,” Sharma, a 25-year-old writer in the western Indian city of Mumbai, told VICE News. “I don't know how my parents would react if they feel that their image was tarnished.”

Things might sway in their favour though.

India’s top court is hearing a petition to decide if  publicly announcing marriage details, under the SMA, should be done away with as it infringes upon the couple’s right to privacy. On September 17, the Chief Justice of India (CJI) made some startling observations responding to a petition filed by a law student Nandini Praveen. “Your plea is that this is a violation of the privacy of the couples. But imagine if children run away to get married how the parents would know about the whereabouts of their children? If a wife runs away, how would the husband come to know?” noted the CJI.

In India, marriages are typically governed by personal laws derived from religions: the Hindu Marriage Act, the Indian Christian Marriage Act, and Muslim personal law.

The SMA is a civil law and persons from all faiths, religions and castes can decide to get married under this law.

However, there is a caveat which is potentially harmful for couples availing this law. The SMA requires couples to give a notice of intended marriage to a marriage officer in a district where at least one of them has lived for 30 days or more. Moreover, all details given to the marriage officer are published in a notice publicly displayed in the marriage office.

“Couples are asked to waive the right to privacy to exercise the right to marry. This infringes the rights of autonomy, dignity and the right to marry, of various couples,” says the plea.

Jagmati Sangwan, an Indian activist who has intervened in multiple cases of honour killings, believes the attention could push families to take steps they wouldn’t otherwise. “It could spread the news to the family and larger community, leading to humiliation and honour killings,” she explained.

The SMA mandates that anyone can raise objections to the marriage, and empowers the marriage officer to investigate the objections.

“Majority of parents in our country oppose the idea of their child marrying someone outside their faith,” Asif Iqbal, an activist who facilitates marriages between interfaith and inter-caste couples through his NGO, Dhanak, told VICE News. “There is no healthy or conducive dialogue on this theme in families.” Iqbal, who also married outside his religion, added that  couples avoid discussing these choices with parents to avoid backlash.

A 2016 report by the National Council of Applied Economic Research, a New Delhi-based think tank, found that only 5 percent of marriages in the country were inter-caste.

“It [publicly revealing details] infringes the right to privacy. However, more specially, it infringes the right to autonomy of individuals, particularly women, and the right to choice of young people to choose their partner,” Vrinda Grover, a senior lawyer and women’s rights activist, told VICE News.

There is also a question of practices meted out specifically to interfaith couples. No other marriage law in India publicises details about the couple’s intended marriage.

“There are states in north India where couples were supposed to give notices in newspapers. In some states, police would make inquiries with their families,” said Iqbal, citing various ways the administration can take advantage of this provision.

Social media users have also pointed out how revealing the details of inter-caste and interfaith couples could lead to more honour killings.

Human Rights Watch defines honour killings as “acts of violence, usually murder, committed by male family members against female family members who are perceived to have brought dishonour upon the family by being romantically involved with or choosing to marry men outside their caste, class or religion.”

More than 350 such killings have taken place across the country in the last six years.

Grassroots NGOs say that such cases are grossly under-reported. Evidence, an NGO in the southern Indian state of Tamil Nadu, recorded 195 cases of honour killings in the last five years in one state alone.

Early this week, an 18-year-old girl from the northern Indian state of Uttar Pradesh was hacked to death by her father in a suspected case of honour killing.

In some states like Kerala, Punjab and Haryana, honour killings reached an alarming level prompting the authorities to establish safe homes for runaway couples.

Sangwan emphasises how legal provisions, or the lack thereof, in India, empower families to kill members who they believe have tarnished their image in society. “Not only does the SMA have to be amended, we also need a separate law that criminalises honour killings,” she said.

*Name changed to protect identity.

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