Dr. Paras Diwan's book, Modern Hindu Law, is a comprehensive and authoritative resource that provides a detailed analysis of the various aspects of modern Hindu law. The 2021 edition of the book builds upon the previous editions, incorporating recent legal developments and judgments, and reflects the current state of the law. Modern Hindu law is an essential area of law that governs the legal rights and obligations of Hindus, including issues related to marriage, divorce, inheritance, and adoption. The law is constantly evolving to reflect the changing social and cultural norms of contemporary Indian society.

Right to Marry

Right to marry is person’s right to freely choose as to when and with whom to marry. This also includes right not to marry. Like other rights this right too is not absolute but subject to certain conditions depending on the personal law of parties to marriage or if parties marry under Special Marriage Act. If marriage is solemnised in violations of the conditions of relevant laws, then status of marriage will be either void or voidable.

At national level, Constitution of India safeguards the individual’s right to equality before the law and equal protection of the law irrespective of religion, race, caste, sex and place of birth or any of them. Articles 32 and 226 obligate the Supreme Court and the High Court respectively to ensure the fulfilment of these fundamental rights and empower them to issue writs against the infringement of these rights. Article 21 of the Constitution of India also protect right to marry as a part of right to life.

These constitutional rights provide powerful and incontrovertible legal backing in support of an individual who exercises his/her right to marry. Additionally, various institutional bodies have been established in India in order to increase access and effectiveness of citizen’s rights such as The National Commission for Women (NCW) and The National Human Rights Commission (NHRC).

Several Acts have been brought in place to increase individual’s ability to access their rights to autonomy and decision-making in relation to marriage. These include Special Marriage Act, 1954; Hindu Marriage Act, 1955; Dissolution of Muslim Marriage Act, 1939; The Protection of Women from Domestic Violence Act, 2005; The Prohibition of Child Marriage Act, 2006; The Guardian and Wards Act,1890; The Majority Act,1875; and The Family Courts Act, 1984.

In the following paragraphs these laws are discussed in a brief manner.

Constitution of India: The right to marry is a component of the right to life under Art. 21 of the constitution of India[1] which confers about right to life of the individual. Right to life also guarantees social security which is one of the important fundamental rights as enshrined in the Constitution of India. Right to life implicitly includes right to marry.

Indian Majority Act, 1875: Right to marry is a constitutional right granted by Article 21 and under Section 3 of the Indian Majority Act, 1875, a person who is the citizen of India attains age of majority after completion of 18 years. A person who is major, wanting to get married to a person of another caste or inter community marriage is not prohibited by law and any honour killings initiated on this ground is unlawful and to be initiated severe measures (Surjit kumar v. State of Uttar Pradesh & Ors, 2002 (456) ACC 79).[2]

Special Marriage Act, 1954:  this Act provide for a special form of marriage for citizens of India and also for Indians living in other countries. The marriage is institutionalized irrespective of caste, religion or faith of the intending couple. But the customary practice of honour killing is done contrary to this perspective amounts to violation of this Act. Process of registration is time consuming and there is possibility that couple could face violence during this period.[3]

Protection of Human Rights (Amendment) Act, 2006: This Act provides for protection of human rights of every individual and constitution of Commissions and Courts for securing the respective objective. Irrespective of these legislations the barbaric practice of honour killing it still prevalent.[4]

Protection of Women from Domestic Violence Act, 2005: according to this Act, if a woman is prohibited from marrying the person of her choice then this is considered as  emotional abuse of the woman.[5] Further the act of pressurizing a woman to marry or not to marry a person of her choice is an act of domestic violence by the family, against which a woman can take legal recourse.

Right to Marry at International Level:

The right to marry is recognized and secured at the international level also. India is party to a number of international human rights treaties that secure the right to choose in marriage. For example, Article 16 of Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Article 23 of the International Covenant on Civil and Political Rights (ICCPR), and Article 5 of the Convention on the Elimination of All Forms of Discrimination Against Women (CERD) hold national governments responsible for upholding the right of all individuals to choose freely and with full consent whether or not to enter into a marriage and with whom.

Honour Killing

But in spite of these rights still the individuals cannot exercise the right to marry as per their own choice. If any girl or boy chooses a life partner of its own choice and decides to marry accordingly then it is considered dishonour to the family and he or she has to bear a brutal consequence for this disobedience and in many cases the couple becomes the victims of honour killing perpetrated by their own family members. Most of the honour killings in India occur for reasons such as - victim refusing to enter an arranged marriage; being in a inter-religion/inter-cast relationship/marriage that is disapproved by their family/community; having sex before marriage; becoming the victim of rape or renouncing a faith.

Honour killing is murdering individual be it a male or a female who happens to chooses marriage partner according to his/her wish. Thinking about the honour of the family, the head and elders of the family looks about the reputation and status of the family but forget about the love and affection towards the members of the family.

Honour killing is a cruel, barbaric and an inhuman act which is violative of the natural rights of a person. Killing someone only for the sake of the honour does not justify the death of the victim. When a girl or boy or a couple are murdered only because they have married as per their own choice, it definitely takes away their right to life. Right to life and personal liberty under article 21 not only includes the right to privacy but also the right to marry anyone. Honour crimes includes abduction, extortion, murder, mutation, harassment or any kind of heinous act against the victim. Honour killing is often considered the same as murder but it is a more heinous crime as compared to murder. In India, thousands are killed in the name of honour by the diktats of infamous “khap panchayats” merely because a couple marry or wish to marry someone outside their caste or faith. 

Honour Killing in the context of matrimonial alliances has been a quintessential cultural practice. According to John Alan Cohan in his seminal article entitled “Honour Killings and Cultural Defence”; this violent practice is rooted in patriarchal norms of male superiority and control and female inferiority[6] .

In the case of Manmeet Singh son of Bawa Singh, resident of Ward No. 14, Darbi (69), VPO Darbi, Tehsil and District Sirsa (Haryana) (Petitioner) v. State of Haryana through Department of Home Affairs, Haryana Civil Secretariat, Chandigarh, and others (Respondents)[7] it was observed by Justice K.Kannan on 23-02-2015 how parents themselves succumb to social pressure, or become trapped in their own value systems to victimise and kill their own children. The local Khap Panchayats often influence the parents to disown their children and issue decrees of social ostracisation which are not tenable before any Court of law but are acceptable to the community in question.

Such sentiments often lead to irreversible physical and mental harm caused to the parties concerned or the newly married couple.

The main reason contributing to this heinous crime is the mentality of people, that they are not ready to accept the fact their children can marry in accordance with their own choices be it in their own caste, religion or outside their caste or religion. Sometimes it is not just about the caste or religion, there are certain cases in which the family murder their own people just because they do not want that tag of love marriage. 

Both rural as well as urban areas are gripped with the horrifying instances of honour killings where young individuals are killed in the name of honour. Exercising their rights to choose their life partner of their own choice is dealt with a death blow by the community. In the wake of growing awareness in the last three decades, the women’s movement in India has provided institutional support to these young people or newly married couples. Couples who are threatened to face the violence in form of the life-threatening consequences are given shelter and security. At times, it has also come to the notice that even if such couples are killed, the matter goes unnoticed, and the case is never reported to the police. The mentality of the people regarding marriage has not changed and they cannot agree upon the marriages inside the gotra and outside the caste. Such crimes are not restricted to the rural and illiterate persons; and are extensively practiced in many advanced modern families.[8]

Since one of the grounds behind the honour killings in India is inter-caste, inter-religion or same gotra marriages in which the marriage is solemnized against the wishes of parents and society. It thus becomes essential to understand that how institutions like marriage and caste system, which are considered to be the most ancient and founding stone, have been connected with or have become the reasons behind the heinous crimes like honour killing in India.

Here the questions arise whether merely on the basis of violations of rules committed against these social institutions, the society or family can dare to commit the most brutal crime of honour killing against their own community members or children? Whether rules prescribed by society regarding marriage and caste are so rigid or deep rooted that if someone dares to disobey such rules, should death penalty by the society be imposed on that individual.

For analysis first of all there is a need to understand the concepts of the marriage and caste system as a social institutions, which are considered to be the foundations of society of India and also how the sanctity of the established rules of these institutions are so ingrained in the mind- sets of the members of the community that even the precious life of innocent people can be taken for the preservation of the same.

Reasons behind Prevalence of Honour Killing

Patriarchal Mindset - Honour Killing is mostly associated with the word “Honour”. In defining honour, many theorists highlights the corresponding concept of “shame”. “Honour” is an idea which is always linked with women of the family. And men are entrusted the task of monitoring women and prevent women from defaming the alleged honour.[9]  This reflects that patriarchy is still prevalent in our society. From the way a woman dresses to the person she marries, etc is often related to the honour of the family. Women’s rights, their desire and preferences are looked upon as violation of social norms and traditions. Hence, only when people become open minded and respect the choices made by individuals in their personal life, these honour killings can come to an end.

Caste system - The presence of caste hierarchy in Indian Society is a bane for the nation. Although many progressive reforms have been initiated by law and people aregetting educated, yet the view towards caste hasn’t changed drastically. While inter-caste marriage is denied by certain cultural groups, certain intra-caste marriage is also denied as a person is not allowed to marry in his/her gotra[10] or of their parents gotra. Both inter-caste marriages and inter-religion marriages leads to a huge number of honour killings.

In a Supreme Court case (Lata Singh v. State of Uttar Pradesh (2006) 5 SCC 475), it was stated by Justice Markandey Katju that “Honour Killings are nothing, but cold-blooded murder and no honour is involved in such killings”. The Supreme Court also observed that “inter-caste and inter-religious marriages should be encouraged to strengthen the social fabric of society.”[11]

Khap Panchayat- Khap Panchayats are community organization especially found in primitive and traditional societies across India. They exert a social influence within the community. Khap panchayat often indulge in offensive activities endangering  the personal lives of individuals marrying according to their choice. There are many judicial pronouncements made  by the Courts against the activities of Khap Panchayats.

One such landmark case is Smt. Laxmi Kachhwaha v. the State of Rajasthan (1999). In this case a Public Interest Litigation was filed in the Rajasthan High Court against the illegal activities of Khap Panchayat violating the individual's human rights. The Court ordered State machinery to stop the activities of such Panchayats and ensure timely arrest and due punishment of their members. And later in Arumugam Servai v. State of Tamil Nadu (2011), the Apex Court opined about the age of majority of a person and their decision of marrying the person they like and observed that Khap Panchayats encourage honour killing and interfere with the personal lives of people.[12] Therefore it should be abolished completely. There are many other cases where Courts declared Khap Panchayats as illegal and sort action against them.Vote bank politics[13] is also major reason for not bringing a law against honour killings.

Lack of education – people are unaware of fundamental rights as enshrined in the constitution. They are unaware of how to claim their rights. Sometimes they lack means to approach courts for protecting their rights.

No separate and strict laws - Honour killing is still not recognized in Indian Laws. The Governments have shown negligence in their approach towards such crimes. There is lack definition and legal recognition of this crime. No protection is provided to couples. These killings are reported under two prevalent categories – Murder (section 302 of Indian Penal Code) and Culpable Homicide (Section 304 of IPC). For this reason, most of the killings are either unreported or not registered as murder. For this reason there is lack of proper statistics of this crime in India.

Murder and honour killing

In absence of a separate law for honour killing, cases are registered under the provisions for murder and homicide. Homicide and honour killing are different from each other in following manner:

Offences under homicide may be motivated by monetary gains or some strategic benefit while honour killings are for restoring the honour of the family.

1.  In homicide, the perpetrator can be a stranger but in honour killing, the perpetrator is close relative of victim.

2. In honour killing, there is a stronger external pressure of community.

3. Perpetrators in honour killing do not have sole motivation. Therefore, the burden of guilt should not be solely on the executioner of honour killing but rather on all persons who were responsible for incitement and abetment of honour killing.[14]

Legal Aspects of Honour Killing

Constitutional Violation: Constitution of India is a torch bearer and guiding document which entrusts various rights in citizens. Honour killing evidently violates various rights entrusted by constitution and is diametrically opposite to the fundamental rights. It clearly violates rights such as:

Article 14 (Equality before law),

Article 15 (1) & (3) (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth),

 Article 17 (Abolition of Untouchability),

Article 19(1) (Freedom of speech and expression) and

Article 21 (Right to life and personal liberty).

Mostly victims of owner killing are women. This shows that it is a gender-related violence. Honour killing denies women or men a chance to express and fulfil own desire and marry as per personal choices. Ultimately this denial leads to torture and killing of individuals. This is clear violation of fundamental right to life and liberty. And the perpetrators use religion or caste as grounds for “dishonour” thereby trying to validate such killings. This act is totally contrary to the Constitution.

The Directive Principle of State Policy (DPSP) provides for good governance in the country. Article 39 (f) states that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.[15] Contrary to this the barbaric and customary practice of Honour killing is responsible for exploitation of married or unmarried couples. They are unprotected and on their own due to unsecure environment. State should perform its duty to protect the vulnerable couple.

Violation of Human Rights:

Every individual irrespective of place of birth, colour, gender, religion has some human rights available to him without discrimination. India being the largest democracy of the world provides a whole lot of human rights a fundamental rights under Constitution of India. Human rights call for a dignified life.

Honour killing intrudes the Universal Declaration of Human Rights, 1948. Although this declaration is legally non-binding, yet it has a larger perspective value.

“Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3: Everyone has the right to life, liberty and the security of person.

Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 16:

1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

2. Marriage shall be entered into only with the free and full consent of the intending spouses.

3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”[16]

Honour Killing or even fear of it snatches a chance of normal dignified life from a couple. It makes a couple to suffer with cruel, merciless and ferocious treatment at the hands of their family and community members. This uncivilised practice denies human rights of a couple.

India has ratified legally binding United Nations Convention on Elimination of All forms of Discrimination against Women (UN-CEDAW). As a responsible state party there is a legal onus on India to take formidable steps to check this inhuman practice of Honour Killing andensure elimination of gender based discrimination in matters of marriage & family relations. Inspite of various provisions of CEDAW and human rights declaration to eliminate discrimination & violence against women, they still continue to be murdered in name of protecting honour.

Violation of Right to Marry:

Marriage is a significant event in the personal, religious and social life of human beings. Perhaps, the institution of marriage came into existence to control free sexual relationship in the society. The institution of marriage was already established in the Vedic age. In the Vedic texts, we do not find mention of a society where there are free sexual relations. With marriage, the married couples legalise their living together till the end of their lives.[17] In customary societies, marriage is basically a private sphere concerning the community and the family.[18] A marriage managed by making pressure on one or both the parties and without their full consent and free will is measured to be a forced marriage. In it the consent of the person is less important than the wishes of the guardians along with their relatives. It establishes the institutional form of marriage as a merger of two families. In this context it can be seen or believed that a person can be forced into marriage against his/ her consent or choice with keeping in mind the attention to his/ her family. 

Important rulings of Supreme Court on honour Killings: -

Not only several national and international laws guarantee a person’s right to marry, but judgments have also been passed by the Supreme Court and High Courts to ensure its realization.

1. The Supreme Court in Shakti Vahini V. Union of India and Ors[19] comprising of Chief Justice Dipak Misra, Justice A.M. Khanwikar, and Justice D.Y. Chandrachud said that the Khap Panchayat cannot take the roleof moral police and law implementing agency. In this judgement the Supreme Court stated, “Liberty, taking the word in its practical sense means the right to choose.” Feudal thinking must melt into darkness paving the smooth road to liberty. The right of the enjoyment of freedom must be continually and zealously guarded, so that it may flourish with strength and glory.  The Supreme Court also observed that the cases of honour killing should be tried in fast-track court. The judgment came in favour of Shakthi Vahini a Non-governmental organization (NGO).

2. The Supreme Court in the case of State of Uttar Pradesh V. Krisha Maste and Ors[20] where the accused have killed six persons of a family in the name of honour killing at a village in Uttar Pradesh. The court while convicting stated that “killing six persons of the same family in the name of honour killing is one of the monstrous crimes and such crime falls under rarest of rare case and therefore the trial court has perfectly justified while awarding them capital punishment.”

3. The Supreme Court in recent case, In re: Re: India Woman says Gang-raped on Orders of Village Court published in Business & Financial News dated 23-1-2014[21] Death Sentence, where the court while referring to honour killings stated that such crimes come under rarest of rare category. And such cases shall deserve the death penalty. In it court observed that such types of deterrent punishments are necessary for such heinous and outrageous crimes.

Actions taken against honour killing

The United Nations Population Fund estimated that about 5000 women and girls were killed by the members of their families and relatives for the sake of honour around the world.[22] The issue of honour killing for the first time was heard in Parliament in 2009. In July 2009, the members across party lines spoke on this issue and supported demand for separate law. In March 2010, there was a landmark judgment in Manoj and Babli honour killing case by the Karnal District Court which gave life sentence to Khap Panchayat head for ordering killings. The judge remarked that khap panchayat have functioned in a contrary manner  to constitution and took law in its own hands.[23]

The matter was later referred to Law Ministry, which gave its recommendations in 2010 known as “The Indian Penal Code and certain other Amendment Bill 2010”. This flawed understanding resulted in dealing only with crimes of honour related murders and not of tortures faced by young couples. In August 2010,  All India Democratic Women’s Association (AIDWA) in consultation and association with other women’s right related organizations drafted a model comprehensive law entitled “The Prevention of Crimes in name of Honour and Tradition Bill” and gave it to government. This Bill addressed the violation of young couples’ rights. It listed various types of crime in addition to murder. It also suggested preventive measures. It also mentioned various degrees of punishments. It focused on role of  Khap Panchayats or such other bodies in the name of caste or community. It fixed accountability of police and administration.

In 2012, the Law Commission of India brought its own version of the Bill in its 242^nd report. This Bill provided a conservative and narrow approach to honour killings. The Bill entitled “Prohibition of Unlawful Assembly (Interference with the Freedom of Matrimonial Alliances) Bill, 2011” dealt primarily with the “Unlawful Assemblies” called Khap panchayats. This recommendation of the Law Commission is still pending.

In March 2018 Shakti Vahini V. Union of India and Ors[24] , the Supreme Court gave preventive measures to combat honour crimes in India. The guidelines are to be followed till a proper law is legislated. Though the Supreme Court has framed guidelines, there is a need for proper and strict law without delay, as delay in justice leads to denial of justice.

Rajasthan State Legislative Assembly on 5^th August 2019 passed the “Rajasthan Prohibition of Interference with the Freedom of Matrimonial Alliances in the Name of Honour and Tradition Bill, 2019”. The bill provided that no person or any group of persons shall gather, assemble or congregate at any time with a view or intention to deliberate on, or condemning any marriage, not prohibited by law, on the basis that such marriage has dishonoured the caste or community tradition  or brought disrepute to all or any of the persons forming part of the assembly or the family or the people of the locality concerned.