FORCED MARRIAGES AND LAW

Profile of the Author: Iffla Firdous is a 4th Year Law student from the School of Law, University of Kashmir.

What is marriage?

Marriage is one of the leading social and consecrated institutions set up by people to control society. Marriage and family are vital structures in many social orders. While these two foundations have generally been firmly connected, their association is getting more intricate. Various individuals characterize it in various manners. Nobody has had the option to concede to solitary importance. For our motivations, we will characterize marriage as a lawfully perceived implicit understanding between two individuals, generally dependent on a sexual relationship and suggesting a lastingness of the association. In making a comprehensive definition, we ought to likewise think about varieties; for example, regardless of whether a lawful marriage is required or beyond two individuals, a marriage can be included. There is a connection between marriage and family because, verifiably, relationships are the most fundamental social unit after which society is constructed.

Consent is essential for a valid marriage

One of the necessary conditions to be fulfilled for a marriage to be solemnized is the parties’ consent. No marriage is valid until the full and free consent of the parties is obtained and in the presence of such authority that is competent to solemnize marriage as prescribed by the law. This is an essential condition that needs to be fulfilled and cannot be obtained coercively. If the consent has been obtained forcefully, such a marriage will be considered void by law. Such a marriage where the consent of either of the parties or both the parties has been obtained forcefully against their will is known as forced marriage. A marriage where earlier both the parties willingly entered into marriage can also become a forced marriage if they at a later stage are made to stay in the marriage against their will. People are physically, emotionally attacked, harassed, put through a guilty conscience of financial pressure over family, and made to go through psychological duress to get consent from them without their will. Sometimes, individuals are taken abroad without realizing that they are to be married. When they show up in the country, their passports might be taken by their family to attempt to stop them from getting back and then are forcefully married.

Victims of Forced marriage

The victims of forced marriage can be people of any age group and have been observed to be impacting both the sexes, but women and girls are more victims to the forced marriage. This can be proved by the ILO report, which says 84% of the forced marriage victims are girls and women. This has also been recognized as a form of modern slavery as there is an absence of autonomy to enter into marriage followed by the abuse from the spouse and no power and choice to break free from the union.

Roots to this evil practice that snatches the fundamental essence of an individual's existence lie in the social, political, cultural, and economic premise. The man-centric or patriarchal society has prevailed in connecting women's bodies and sexuality with family honor creating gender inequalities and other diverse practices. All arranged marriages are not forced marriages. Arranged marriages have been an ancient practice in India and become a forced marriage when the party, despite resisting, is forced to consent to the marriage. This sensitive issue has been dealt with in a multifaceted way. Forced marriages cause human rights violations and are thus illegal, and as a result, there are specific provisions of Indian law that are against forced marriages and can be used by those who fall victim to it.

Forced marriages among LGBT+

In India, a campaign on the right to decide marriage arises close to sex, religion, and sexual orientation. Regardless of deliberate backing and some reformist movements in social perspectives on these issues, India's late legal and political moves have made an alarmingly backward turn. In a historic judgment, Supreme Court decriminalized Section 377 of the Penal Code, which was the supposed enemy of homosexuality law and punished private, consensual intercourse between same-sex grown-ups as illegal. The decision rescued India's homosexuals from the shadows of culpability and from being proceeded with social trashing. Then again, in another case of National Legal Services Authority v Union of India, the Supreme Court took an extraordinarily unique tone and approach from the Koushal v Naz Foundation case, holding that the privilege to self distinguish as one's own sex including as "third sex" was a significant portion of one's entitlement to live with pride. The third gender community is being accepted in Indian society, and their rights are receiving more recognition now. The LGBT community of India has shifted its focus to marriage equality now. Members of the LGBT community have faced enormous pressure on being married forcefully as the partner they choose is not acceptable to society. Forced marriages of homosexuals is a common prevailing issue in India. Due to societal unacceptability, parents of homosexuals have often forced them into marriage against their will. The law legalizing same-sex marriages needs to be passed, which would prevent them from exploitation by society.

Laws against Forced Marriages

Forced marriage is an infringement and encroachment of fundamental liberties and directed gender violence. Forcing a person against his will is the encroachment of her significant fundamental rights guaranteed under Articles 14, 19, and 21 enshrined by India's constitution. The Right to life and freedom of liberty ensured under 21 of the Indian constitution additionally expresses that no individual will be denied of his life and individual freedom, and Article 21 likewise ensures right to life and liberty encompasses the right to give a free and full consent and assent to the marriage by the parties involved to it. It carries the privilege of consensual marriage in India. Indeed, even the law says the marriage's authenticity is established when both the correspondences give free consent to marriage else ensues nullity of the marriage.

The use of any force against the women attracts legal provision of section 350 of IPC. Besides, Section 15 of the Indian Contract Act, 1872 can similarly be made suitable here. Forcefully subjecting a woman to marry without her consent or without taking her consent legally can lead to the contract's nullity. The contract which has been entered into using coercion is not legally valid. Marriage is a social contract, and if coercion is used on either of the parties to get an acceptance for the same, it will become void. Provoking and prompting women to oblige her marriage similarly attract section 366 of the Indian Penal Code. Indian Judicial System has provided the authority and offers the women the capacity to file a complaint against her own family or relatives or whoever is forcing marriage upon her and violating her rights and liberties by virtue of it.

Article 16 of the Universal Declaration of Human Rights deals with discrimination against women in marriage-related matters. Article 16 of UDHR likewise expresses that marriage is a social contract that can be entered into only with the partners' free and full consent. It ensures that both men and women have the same and equal right to enter into marriage and choose a spouse with their full and free consent. Article 23 of the International Covenant on Civil and Political Rights of 1966 says, “No marriage shall be possible without the free and full consent of the intending spouses.”

Such laws apply to all irrespective of gender and come to the rescue of victims of forced marriages.

Conclusion

The laws give the person against whom such an act is done to take legal action. The person has been given the power to take strict legal action against anyone who forces him to marry without his will. However, it depends on whether he will utilize this power or not, as it is entirely up to him to initiate legal proceedings against anyone coercing him. However, as in most cases, such people are the parents or guardians of the person, he becomes hesitant to take any steps against them. India is a developing country, and the people have not developed a modern mindset yet, and taking steps against parents is still considered a sort of immorality. Forced marriages are one of the worst human rights violations as this can give rise to many other societal problems, including marital rape, domestic violence, mental and emotional abuse. More awareness and more stringent laws need to be formed to prevent forced marriages.

Disclaimer: This article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns.

REFERENCES

1. Child Marriages in India An insight into Law and Policy December 2013 Final Report of the Red Elephant Foundation
2. Forced Marriage - Abdullahi An-Na'im, Charles Howard Candler Professor of International Law at Emory University, USA
3. Exploratory Research into the Intersection of Forced Marriage, Intimate Partner Violence, and Sexual Violence Meredith Dank, Hanna Love, Sino Esthappan, Janine Zweig
4. Indian Penal Code
5. Indian Contract Act
6. Constitution of India