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Shakti Vahini Supreme Court judgment

‘Capable Adults’ Don’t Need Community’s Consent to Marry, Says SC

In a judgment intended to curb the practice of honor killings, the Supreme Court released an opinion that definitively protects the right of two consenting adults to marry, and states that it is unconstitutional for third parties to impinge upon their freedom of choice.

The judgment is largely the result of a Public Interest Litigation filed by the NGO Shakti Vahini, which asked the central and state governments to take steps to prevent honor killings, as well as to prosecute the perpetrators of previous honor killings and related occurrences.

The decision, which was authored by Chief Justice Dipak Misra, broadly establishes a series of directives and punitive measures intended to protect couples, particularly interfaith couples, from retribution from their communities.

In the judgment, the Supreme Court states unequivocally that “the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock.” Essentially, this means that two consenting adults are the only ones who can decide whether or not to get married, and that their freedom of choice is protected in the Constitution.

In order to protect couples from honor crimes — whether killings or other forms of community-led retribution — the Supreme Court issued directives to local governments, including that they must set up safe houses for interfaith couples, provide hotlines for easier reporting, and provide additional protection in areas where an interfaith marriage has occurred and a couple could be in danger.

Additionally, the Supreme Court has listed a number of punitive measures in the case that an honor crime should occur, specifying that failure of local law enforcement to investigate such a crime and “take it to its logical end” will be considered a deliberate act of negligence.

What remains to be seen is the funding and enforcement mechanisms that will bring these directives to life, and whether, in practice, local law enforcement will be able to uniformly and justly prevent and prosecute these crimes. The Supreme Court’s directives are fairly onerous; hotlines and safe houses require money and infrastructure to put in place.

The judgment also leaves some grey area when it states that “it should be first ascertained whether the bachelor-bachelorette are capable adults.” It is unclear who qualifies (or more to the point, who doesn’t qualify) as a “capable adult,” who has the authority to determine that competence, and by what means. The vagueness leaves room for potential unjust manipulation at a local level — the very thing this exacting judgment, presumably, is intended to prevent.

Ultimately, however, the statement that adult couples do not require any third-party approval or consent to make life decisions, and that the protection of those liberties should be a national priority, is an important step towards affecting change in attitudes toward marriage. The judgment comes on the heels of the Hadiya case, in which the Supreme Court ruled that it was an opinion, or determine what constitutes consent between them.

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