Role of Indian Judiciary

in Reconciling Cultural
Values and Human Rights

-Justice Hima Kohli

Judge, High Court of Delhi
New Delhi, India

Asato Maa Sad-Gamaya |

Tamaso Maa Jyotir-Gamaya |
Mrtyor-Maa Amrtam Gamaya |
- Lead us from the unreal to the Real (truth)
Lead us from Darkness to Light
Lead us from the Fear of Death to the
Knowledge of Immortality

Essence of Indian Culture

Object of life

To denounce the wrong and

to accept the right

To move from falsehood to

truth

Indian Culture
An amalgamation of several
cultures
Includes several millennia old
traditions
Several faiths and belief systems
co-exist peacefully
Assimilation of different religions
makes Indian culture unique

Indian Marriage
Marriage is a sacrament for most
religions
Arranged Marriage - parents of the
bride and the groom take
decisions about their marriage
Dowry System Traditionally brides
family provides gifts to her
when she leaves her natal home

Law and Culture

A change in law has led to a
transition in culture and vice
versa
The matrimonial and family laws
in India maintain a balance
between the cultural and
individual rights of the people

Child Marriage
Children are married before they
attain the legal age of 18 for girls
and 21 for boys

Causes

Social practices
Religious traditions
Poverty
Values based on patriarchal norms
Low levels of education among girls
Lower social status given to girls

Effects of Child Marriage

Impacts girls in larger numbers
and in a greater intensity than
boys
Gross violation of Human Rights
of children
Leaves physical, psychological
and emotional scars on children

The Prohibition of Child

Marriage Act 2006
Objects and Features
Enacted for the purposes of plugging
loopholes in the existing law
Prohibits the solemnisation of Child
Marriage
The Act does not affect the validity
of the marriage

Court on its own Motion ( Lajja

Devi) Vs. State
Marriage with a minor is voidable
and is valid only if no steps are
taken by the child seeking
declaration of marriage as void
In case of a married minor girl,
Court would decide the question
of custody depending upon
circumstances

Rosy Jacob Vs. Jacob Chakramakkal

Primary consideration governing
the custody of the child is the
childs own welfare

Association for Social Justice &

Research Vs .Union of India & Ors.
Custody of minor girl shall not be
given to her husband until she has
attainted the age of 18 years

Honour Killings
Inter-caste, inter-religion
marriages and couples marrying
without their familys
consent provoke opposition
Cause: Deep-seated socio-cultural
prejudices and the belief that the
victim has brought dishonour
upon the family/community

Honour Killings
Khap Panchayats or the Caste councils ,
adopt the chosen course of moral
vigilantism and assume to themselves,
the role of social or community guardians

The Councils exhibit least regard for life

and liberty when dealing with such
matrimonies

Lata Singh Vs. State of UP

Upon attaining majority, every
person has the right to marry
a person of their choice
No one can extend threats or
commit acts of violence against
those who undergo inter-caste
or inter religion marriages

Arumugam Servai vs. State

of Tamil Nadu
The practice of khap panchayats
taking law into their own hands and
indulging in activities endangering
the personal lives of the persons
marrying as per their choice has
been deprecated

Bhagwan Dass vs State

(NCT) of Delhi
Honour killings treated as a
barbaric and a feudal practice
and treated under the category
of rarest of rare cases
deserving death Penalty

Divorce
Traditionally, the concept of
divorce was non-existent and
unacceptable to the society
In the present days, the right to
obtain divorce has been given
statutory recognition
The right to walk out of a failed
marriage is considered as an
expression of ones right to life and
personal liberty

Legislations governing
Divorce in India
The Divorce Act, 1869
Parsi Marriage and Divorce
Act, 1936
Dissolution of Muslim
Marriages Act, 1939
The Hindu Marriage Act,1955
The Special Marriage Act,
1956

Recently recognized
grounds for divorce
Ground of divorce by
mutual consent incorporated
in the Hindu Marriage Act
in the year 1976
Irretrievable breakdown
of marriage considered a
weighty circumstance

K. Srinivas Rao vs. D.A. Deepa

Divorce granted on the ground of
irretrievable breakdown of marriage
Emphasis laid on familial ties and
timely counselling of disputant
couples by peers
ADR tools like mediation and
counselling, under the supervision of
Courts/ Family Courts recommended

Sarve bhavantu sukhinah|

Sarve santu niramayah|
Sarve bhadrani pashyantu|
Ma kashchid duhkha-bhag-bhavet|

- May all be happy!

May all be free from disabilities! (illness)
May all look to the good of others!

Thank You

- Justice Hima Kohli

Judge, High Court of Delhi
New Delhi-110003, India