judge kohli - role of india judiciary in reconciling cultural values and human rights
TRANSCRIPT
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-Justice Hima Kohli
Judge, High Court of Delhi
New Delhi, India
Role of Indian Judiciary
in Reconciling Cultural
Values and Human Rights
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- Lead us from the unreal to the Real (truth)
Lead us from Darkness to LightLead us from the Fear of Death to the
Knowledge of Immortality
Asato Maa Sad-Gamaya |Tamaso Maa Jyotir-Gamaya |
Mrtyor-Maa Amrtam Gamaya |
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Essence of Indian Culture
Object of life
To denounce the wrong and
to accept the right
To move from falsehood to
truth
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Indian Culture
An amalgamation of several
cultures
Includes several millennia oldtraditions
Several faiths and belief systems
co-exist peacefully Assimilation of different religions
makes Indian culture unique
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Indian Marriage
Marriage is a sacrament for most
religions
Arranged Marriage - parents of thebride and the groom take
decisions about their marriage
Dowry SystemTraditionally bridesfamily provides gifts to her
when she leaves her natal home
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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
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Child MarriageChildren are married before they
attain the legal age of 18 for girlsand 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
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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, psychologicaland emotional scars on children
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The Prohibition of ChildMarriage 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
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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 seekingdeclaration of marriage as void
In case of a married minor girl,
Court would decide the questionof custody depending upon
circumstances
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Rosy Jacob Vs. Jacob Chakramakkal
Primary consideration governingthe 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
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Honour Killings
Inter-caste, inter-religion
marriages and couples marrying
without their familysconsent provoke opposition
Cause: Deep-seated socio-cultural
prejudices and the belief that thevictim has brought dishonour
upon the family/community
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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
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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
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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
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Bhagwan Dass vs State(NCT) of Delhi
Honour killings treated as abarbaric and a feudal practice
and treated under the category
of rarest of rare casesdeserving death Penalty
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Divorce
Traditionally, the concept of
divorce was non-existent and
unacceptable to the society
In the present days, the right toobtain 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
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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
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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 aweighty circumstance
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K. Srinivas Rao vs. D.A. Deepa
Divorce granted on the ground of
irretrievable breakdown of marriage
Emphasis laid on familial ties andtimely counselling of disputant
couples by peers
ADR tools like mediation and
counselling, under the supervision of
Courts/ Family Courts recommended
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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
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- Justice Hima Kohli
Judge, High Court of Delhi
New Delhi-110003, India
Thank You