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COMPENDIUM OF JUDGMENTS RIGHT TO CHOICE IN RELATIONSHIPS Association for Advocacy and Legal Initiatives (AALI), 2011 Acknowledgements The compendium of judgments comes out of our work on the issue of Right to Choices since 2000. Bringing the judgments together in a publication was inspired by the National Colloquium organized by AALI in partnership with the UP Institute of Judicial Training and Research. We are very grateful to all the participants and resource team for all their guidance, in-puts and support, Words are not enough to thank our Advisors and Board, for all their support and work, especially: Niti Saxena, for her idea in putting it together, framing this and making it possible, Seema Misra, for the editing, analysis, and all the work, We are also very grateful to Shubhangi Singh our intern and Shubham Tripathi for all their work in putting the Compendium together, However, this would not be ready for publication without all the work done by Somesh Srivastava in ensuring all the re-reading, copy-editing, numbering and all things needed to ensure a publishable version. Finally, we hope that this Compendium is useful for judges and practitioners; as well as those who continue to give meaning to human rights through their struggles, challenges and achievements, We look forward to feedback and comments AALI Team 1 Table of Contents INTRODUCTION ....................................................................................................................................... 4 INDICES ..................................................................................................................................................... 6 SUPREME COURT ................................................................................................................................ 6 Acid attacks as a tool of coercion/punishment in sexual relationships ................................................ 6 Religious Conversion for Marriage ..................................................................................................... 6 Charges of kidnapping and rape in cases of Right to Choice and the use of Haebas Corpus .............. 7 Denial of Right to Choice to protect “Family Honor” ......................................................................... 9 Registration of Marriage .................................................................................................................... 11 HIGH COURTS .................................................................................................................................... 11 Acid attacks as a tool of coercion/punishment in sexual relationships .............................................. 11 Religious Conversion for Marriage ................................................................................................... 12 Charges of kidnapping, rape in cases of Right to Choice and use of habeas corpus. ......................... 13 Denial of the Right to choice to protect Family Honor ...................................................................... 25 Decriminalising same sex relationships ............................................................................................. 27 The Special Marriage Act, 1954 ........................................................................................................ 28 JUDGMENTS ........................................................................................................................................... 34 SUPREME COURT .............................................................................................................................. 34 Acid attacks as a method of coercion in refrence to sexual relationships .......................................... 34 Religious Conversion for Marriage ................................................................................................... 40 Charges of kidnapping and rape in cases of right to choice and the use of Haebas Corpus ............... 53 Denial of Right to Choice to protect Family “Honor” ....................................................................... 64 Registration of marriage .................................................................................................................... 89 HIGH COURTS .................................................................................................................................... 93 Acid attacks as a means of coercion in sexual relationships .............................................................. 93 Religious Conversion for marriage .................................................................................................. 105 Charges of Kidnapping and Rape in cases of Right to Choice and use of Haebas Corpus .............. 109 Denial of Right to Choice to protect Family Honor ......................................................................... 194 Decriminalising Same Sex Relationships ........................................................................................ 213 2 The Special Marriage Act, 1954 ...................................................................................................... 218 3 INTRODUCTION A woman's right to enter, not to enter, remains or exit from a relationship is secured by the provisions of a number of International Human Rights Instruments and national laws1. In the Indian Constitution the provisions under Chapter III i.e. right to equality, right to non-discrimination, right to form association, right to life and personal liberty; safeguard women’s right to choose a relationship. The Writ of Habeas Corpus, which literally means to produce the body, has also been an essential legal tool in bringing together illegally separated couples. The Protection of Women from Domestic Violence Act 2005 states that forcing a woman to marry or not to marry a person of her own choice is an act of domestic violence by the family, against which a woman could take legal recourse. In addition, the Supreme Court and High Courts through their various judicial pronouncements have upheld women’s right to sexual autonomy and decision-making. However, despite the existing national and international legal framework this right has proven to be one of the most complex and difficult to put into practice in the socio-cultural contexts of India. Protection and promotion of women’s right to choose a relationship has been central to AALI’s struggle for the establishment of human rights for women. While addressing the issue of women’s sexual autonomy and the violation faced by them on account of exercising their choices and decision making agency, we have intervened in several cases of violation and violence against such women and their partners as well as family members who dared to support particular choice made by their kin. Throughout this journey, law and human rights has remained the only framework for all our interventions to redress the violation whether through lawyering, social mediation, public and legal advocacy. While supporting women who have made a choice regarding their partners, AALI not only encountered opposition from communities and families of these women but also from the law enforcement agencies and lower judiciary. Despite all the challenges and gaps in the substantive law, legal procedures and their usage execution, judgments viz. Lata Singh vs. State of U.P2 or Arvinder Singh Bagga V. State of U.P3 that have contributed towards upholding women’s decision making agency and equality before law, have given us strength and reinvigorated our struggle. During the process of demanding justice for women and our close and continuous engagement with law, legal precedence has tremendously strengthened our interventions and strategies. Case-law on issues related to choice, marriage, maintenance, dissolution, in addition to expanding the interpretation of legal statute; provisions, language and approaches of law, has also added to our understanding of the issues. The usage and contribution of case-law in ensuring the living nature of law itself led us to developing this compendium of cases relevant to choice in relationship. 1 i.e. The Constitution of India, The Special Marriage Act 1954, The Hindu Marriage Act 1955, The Dissolution of Muslim Marriage Act 1939, The Protection of Women from Domestic Violence Act 2005 etc 2 2006 (5) SCC 475 3 AIR 1995 SC 117 4 In the present compendium we have tried to collate judgments from the Supreme Court and the various High Courts, relating to women’s decision making in relation to sexual autonomy, that set guiding principles for the women’s struggle in the form of domestic violence, forced marriage, acid attack, kidnapping, abduction and rape, social ostracization (crimes committed by community), conversion for the purpose of marriage and, divorce. This compendium is an effort to reinforce a woman’s right to decision making in her relationships, which the community as well as the state often want to disregard. This compendium of judgments has been prepared to eatablish that women’s decision making in matters related to sexual autonomy is a human rights issue and not a “soft issue”. This collation of judgments reveal that a woman who exercises her right to choice not only faces unimaginable violence, but also has to put her life on hold while defending herself in different courts as is illustrated by the Lata Singh case in the compendium, which AALI is still dealing with. Since the time she got married in 2000 to this day, Lata Singh is involved

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