Consent under Marriage

Marriage holds a unique place in Indian society. It is not merely the union of two individuals but is traditionally viewed as a sacred bond between two families. The cultural fabric of India imbues marriage with religious, social, and familial significance. 

However, the legal framework recognises marriage primarily as a contract between consenting adults. This article aims to explore the concept of consent under marriage in India, examining its legal foundation, the friction between societal norms and individual autonomy, and the judiciary’s role in safeguarding free consent.

Marriage: A Contractual and Sacramental Institution

In India, marriage has a dual character. On one hand, it is a religious and sacramental union, especially in Hindu traditions, viewed as a permanent bond transcending life and death. On the other hand, from a legal standpoint, marriage is recognised as a contract, requiring free and valid consent of the parties involved.

The Hindu Marriage Act, 1955 (HMA), one of the primary statutes governing Hindu marriages, acknowledges this contract nature implicitly. It lays down specific preconditions for a valid marriage, including the capacity of parties to consent. The Indian Contract Act, 1872 further enshrines free consent as essential to any valid contract. Therefore, legally, no marriage is valid without the free consent of both parties.

Understanding Consent: Legal Foundations

Consent is a voluntary agreement to enter into a contract or relationship, free from coercion, undue influence, fraud, misrepresentation, or mistake. Under the Indian Contract Act, Sections 10 and 14 elaborate on what constitutes free consent.

• Section 10 declares a valid contract must have free consent and lawful consideration.
• Section 14 defines consent as free only when it is not caused by coercion, undue influence, fraud, misrepresentation, or mistake.

In the context of marriage, this means that both individuals must willingly agree to marry each other without pressure, threats, or manipulation.

The HMA, while not explicitly stating the conditions of consent, incorporates the principle by requiring that parties be capable of giving valid consent (Section 5). The law also bars marriage where a party is mentally incapacitated to give consent.

Coercion and Undue Influence: Barriers to Free Consent

While the law recognises free consent as fundamental, the realities on the ground often involve coercion and undue influence, especially in rural or traditional settings.

• Coercion refers to forcing a person to act against their will by threatening harm. In marriages, this could mean threats of honour violence, social ostracism, or disinheritance if consent is withheld.
• Undue Influence involves exploiting a position of power over another person to obtain consent. Parents or community elders sometimes exert such pressure, especially in arranged marriages, undermining genuine consent.

Such practices vitiate the validity of consent and are legally impermissible.

Societal Pressures: The Clash with Individual Autonomy

In India, marriage decisions often transcend the individuals involved. Families, caste groups, and communities traditionally influence matrimonial alliances. This collective approach places social acceptance and conformity over personal choice.

Caste considerations, dowry expectations, and family honour are key factors that dictate whom one should marry. Defying these norms can invite severe backlash, including threats, violence, and in extreme cases, honour killings.

One such extra-legal enforcement is through Khap Panchayats — caste-based assemblies in northern India that issue diktats regarding acceptable marriages. Although lacking statutory authority, their social influence is significant and sometimes results in grave human rights violations.

Constitutional and Statutory Safeguards

The Indian Constitution, through various judicial interpretations, protects the right of individuals to marry the person of their choice.

• Article 21, guaranteeing the Right to Life and Personal Liberty, has been interpreted by the Supreme Court to include the right to marry freely.
• The Right to Privacy, recognised in the landmark Justice KS Puttaswamy v. Union of India (2017) case, encompasses “privacy of choice,” protecting personal decisions such as whom to marry.

Statutory protections also reinforce consent:

• The Prohibition of Child Marriage Act, 2006 prevents marriages below legal age, ensuring parties are capable of giving informed consent.
• The Protection of Women from Domestic Violence Act, 2005 provides safeguards against coercion and violence within marriage.
• Courts have extended legal protection to live-in relationships, acknowledging personal liberty and consent even outside formal marriage.

Landmark Judicial Pronouncements

The Indian judiciary has played a vital role in upholding free consent in marriage, often protecting couples against societal opposition.

• Lata Singh v. State of Uttar Pradesh (2006): The Supreme Court upheld the right of a major woman to marry by her choice, rejecting attempts to annul the marriage based on caste opposition.
• Shakti Vahini v. Union of India (2018): The Court declared that any attempt by non-state actors, including Khap Panchayats, to interfere with consenting adults’ marriage is illegal and must be curbed.
• Hadiya v. Kerala (2017): The Supreme Court reversed a High Court order annulling marriage on the ground of religious conversion, reaffirming that personal choice is paramount.
• Mayra Alias Vaishnavi v. State of Uttar Pradesh (2021): The Allahabad High Court underscored that once two adults agree to marry, neither family nor state approval is required. The Registrar cannot demand conversion certificates or family consent for marriage registration.
• Swaleha Hussain v. State of Uttarakhand (2021): The High Court ordered immediate police action against threats to couples marrying outside social norms and mandated protection for them.
• Navjet Singh Johar v. Union of India (2018): Decriminalised consensual same-sex relations, thereby recognising that LGBT individuals are entitled to the same fundamental rights, including the right to marry chosen partners.

Conclusion

Consent under marriage is the cornerstone of a valid matrimonial alliance in India. The law robustly protects the right of adults to marry the person of their choice without coercion or undue influence. The Constitution, statutes, and judicial pronouncements affirm the primacy of individual autonomy in matters of marriage.

However, societal norms and pressures often conflict with legal principles, placing many couples in perilous situations. Bridging this gap requires concerted efforts in education, enforcement, and social reform.