When Families Decide: Constitutional Autonomy and the Crisis of Honour

*Udit Jain & Ruhee Tandan

Recently, the Gujarat government proposed an amendment to the Gujarat Registration of Marriages Act, introducing a stricter multi-stage verification process. The mandate stipulated that the couple seeking to register their marriage must submit their parents' identity documents and declare that they have informed their parents of the marriage. The proposed amendment, in the light of already established constitutional jurisprudence, appears to be a constitutionally dubious proposal. The proposal established an obligatory requirement that children obtain parental consent to marry. There is established jurisprudence to the effect that there is no requirement of parental consent to marry; the Gujarat proposed amendment and the reasoning behind it stand constitutionally anomalous. The proposal reflects and augments the already existing socio-religious discrimination in Indian society.

The recent initiative of the Gujarat government escalates the already existing religious and caste disharmony that exists in Indian society. While there have been efforts to develop schemes to promote interfaith marriages and thereby foster social harmony, the particular decision undermines that spirit. The decision also reflects the legitimisation of religious bigotry, such as “love jihad”, as observed in the speech of the minister introducing the proposed amendment. While introducing the bill he stated that ““under the name of love jihad, a game is being played in the state” and “a strong armour… needs to be created for young girls”  While there have been established judicial precedents that evidently stipulate that the consent of clan family or parents stands superfluous, the decision, as argued here, stands constitutionally unsound.

Building on the articulated argument, this article seeks to highlight the socio-legal issue posed by this decision. The article, firstly, looks into the background of the “proposed decision” and then further manoeuvres into the constitutionally established jurisprudence on the right to choose. The article then further manoeuvres into the socio- legal reality of honour killings and demonstrates how this judgment exacerbates the existing problem by granting the clan authority to decide for their children. Thus, this article examines the consequences of paternalism and the constitutional flaws of the decision. The article delves into the intricate debate between constitutional morality and social morality. The article ultimately concludes with a practical, more just and constitutional approach that could have been taken. 

A. Marriage in India: A Historical Legal Transformation

Classical Hindu law treated marriage as a religious duty rather than a civil contract. The sanctimonious nature of the marriage disparaged the requirement of consent and focused on the sanctity of the ritual. The father or male guardian of the bride held near-absolute authority over the bride, which was treated as a gift to the groom as part of the kanyadaan ceremony. Women, under this framework, were not considered independent subjects capable of independent consent. Progressive interpretations of Muslim personal law, which granted women autonomy, though present, were rarely followed in practice, giving way to a more conservative tradition. 

The Special Marriage Act, 1954, was the first statutory measure towards a consent-based framework for marriage. Under Section 4 of the SMA, individuals of any religion may marry without the sanction of personal law and without caste or religious restrictions. However, there were still many procedural requirements, such as the thirty-day notice period mentioned in Section 5 of the SMA, which exposed couples to harassment and functioned as a parental veto. Various scholars and academics have argued that this notice regime disproportionately harms interfaith couples and women. For instance, Mrinal Satish noted that procedural exposure increased the risk of honour-based violence.(Read -  How the Special Marriage Act is Killing Love) 

The jurisprudential shift relied heavily on Article 21 expansion. The first major recognition of inter-caste marriage autonomy was upheld in the case of Lata Singh v State of Uttar Pradesh. The judgment held that inter-caste marriages were propitious to the indian social harmony, and those who are involved in the daunting act of honour violence on the premise of inter-caste marriages shall be severely punished. The court (see p. 16) also stated that if parents disapprove of the marriage, they can, at full capacity, sever the social relationship between them. Thus, this judgment evidently established that parental consent to marry is irrelevant and is against the constitutional right to choose. It was further supported by Shakti Vahini v. Union of India, in which the Supreme Court expressly condemned the authority of khap panchayats and family bodies to dictate matrimonial choices and held that such authority was not legally cognisable. In the case of Arumugam Servai v. State of Tamil Nadu, the court strongly condemned khap panchayats and caste councils for interfering with marriages. The judgment of KS Puttawamy (para 298) manifestly illuminates that privacy includes decisional autonomy in intimate matters.

Furthermore, in the landmark judgment of Navtej Singh Johar v Union of India, it was laid down that sexual orientation and choice are rooted in dignity. Progressive interpretations of Article 21, Right to Life and Personal Liberty, have led to the recognition of the right to choose a life partner as a Fundamental Right under Article 21.  In Shafi Jahan v K.M Ashokan(para. 45), the court overruled the High courts annulment of an interfaith marriage on paternalistic protection grounds.

In parts of Gujarat and Northern India, social stigma against marriage crossing caste and religion remains strong, occasionally resulting in community backlash or threats to couples, as seen in recent threats against an interfaith couple in Surat. The Gujarat government's recent proposed decision is rooted in the paternalistic model of governance, where the state, excessively in the guise of protection of women, has chosen to overlook the personal autonomy and dignity aspect of women. The amendment reflects demands from community organisations in Gujarat, where some village bodies have even imposed a social boycott on couples marrying without family approval. Some other laws, such as the UP Prohibition of Unlawful Conversion of Religion Act 2021, shared the same vision. While the marriage in India has always been linked to concepts of caste continuity, religious identity and family honour, this decision serves as an alignment with the conservative vote base and retrogressively reinforces community control structures. 

B. The Right to Choose: Marriage, Caste, and Constitutional Liberty in India”

The right to choose a marital partner, while seemingly just a question of personal liberty, cannot be adjudicated in isolation from the specific social realities of gender, caste and religion in the Indian framework. These hierarchies determine which choices are systematically and violently suppressed. Thus, the suppression of the right to choose is both the suppression of the right to life and personal liberty under Article 21, as well as a form of discrimination based on caste and gender.

In his essay, Annihilation of Caste, Dr B.R. Ambedkar argued that inter-caste marriage, in particular, along with inter-caste dining was one of the ways of eradicating the caste system (see). He stated that: 

 “Where society is already well-knit by other ties, marriage is an ordinary incident of life. But where society is cut asunder, marriage as a binding force becomes a matter of urgent necessity. The real remedy for breaking Caste is intermarriage. Nothing else will serve as the solvent of Caste.”

Furthermore, in the case of Shafin Jahan v. Ashokan K.M., the Supreme Court highlighted the right of every individual to marry a person of his or her choice. This also ensures that the choice of a partner is not influenced by religion or faith. In this case, although the family initiated a habeas corpus writ, the Supreme Court held that it could not interfere in this matter. This landmark judgement nullified the Kerala HC’s decision, which stated that parental permission was a necessary component of marriage. 

Thus, the right to choose a life partner is a fundamental right of a person and is protected under Articles 21, 19(1)(a) and 14 of the Constitution, as held in the case of Shakti Vahini v. Union of India. Interference in such a choice constitutes an encroachment on the freedom of choice of an individual, and thus parental and community consent in such a decision is not a necessary component.

C. From Honour to Law: Re-Legitimising Community Control

Honour killings in India don't exhibit incidents of interpersonal violence but are stark manifestations of deeply entrenched social hierarchies, legitimised through patriarchy, caste supremacy and communal dominance. The honour killings official data remains low, due to its structural invisibility,  which means many cases go unrecorded as such. The official data indicates that there are at least 30 cases of honour killings every year, and these honour killings are a direct reflection of existing patriarchal norms and caste and community boundaries pervasive in Indian society. The Gujarat proposed amendment shares its affinity to such paternalism and serves as the most blatant attempt to control the choice, sexuality and autonomy of the young people. 

It is unfortunate to see that the ruling government and the leaders have tried to justify such an unconstitutional decision by citing it as an attempt to obliterate love jihad. While the Indian courts have persistently declared the concept of “love jihad” as a legal basis to override an adult’s fundamental rights to marry, the indian state and some of the most popular leaders have often used this to satisfy their voter base. In the landmark judgment of Shafin Jahan v Asokan K.M, (para 28)the Supreme Court declared that a marriage cannot be annulled on stereotypical fears devoid of evidence, and that an adult has the unmitigated right to choose their spouse. The Bombay High Court has also held that “just because boys and girls are from different religions, it's not from love jihad.”

The apex court in  Re vs Indian Woman said that it's the duty-bound role of the state to protect freedom bound choice of marriage, which is an integral aspect of Article 21 of the Indian Constitution. In the case of Vikas Yadav v. State of Uttar Pradesh and others, the court reiterated that the freedom and independence of women cannot be violated by self-imposed honour. When a state policy seeks to reintroduce parental notification or community oversight in adult marriage, it risks legitimising the very social control structures that the courts have sought to dismantle. Thus, by formally empowering families to intervene, such measures may embolden honour-based resistance, increase surveillance of couples, and create conditions where coercion or violence becomes more likely, thereby indirectly reinforcing the ecosystem in which honour killings thrive.

D. Paternalism, Constitutionalism, and the Limits of Social Morality.

Women have perpetually faced systematic discrimination throughout modern history when compared to men. This interference and evident discrimination have been justified as a protection of their own rights or “ for their own enhancement”. Dworkin defines paternalism as the interference by a state or an individual with another person, against their will, and justified by the claim that the person interfered with will be better off or protected from harm. Indian family law is closely linked to religious codes and social morality. Such instances of subjugation are ubiquitous in almost all personal laws of India. 

The feminist critique of paternalism rests on the fundamental recognition that women are autonomous agents capable of making informed decisions about their own lives. The critique rebuts the thesis that there is a singular, uniberal understanding of what constitutes women’s dignity, equality, or freedom.  In the controversial Sabrimala case (para 112) Justice Chandrachud endeavoured to undermine the value of the “essential religious practise test”, and rather adopted a version of an “anti-exclusionary principle”. This reflected a progressive shift away from the normative traditional laws that accorded supremacy to morality over constitutionality. However, a distinction should be made between paternalistic and judicial overreach. 

In the context of the recent proposed amendment, when courts validate or entertain parental objections to adult relationships on grounds of safety or social harmony, they treat adults as incapable of making autonomous marital decisions and shift authority from the individual to the family. Indian jurisprudence has evolved constantly and reflects a commitment to transformative constitutionalism rather than a disposition toward social morality. While the Indian society still struggles sociologically with honour killings, khap panchayat interference and family surveillance of women, the proposal reflects entrenched socio-legal paternalism. The proposal leans into the past, carrying personal laws years backwards on the reluctant tide of retrogression. 

E. TOWARDS CONSTITUTIONAL PRAGMATISM: RECONCILING SOCIAL ANXIETY WITH TRANSDORMATIVE MORALITY

The debate surrounding the proposed amendment at length speaks about a deeper anxiety that exists in the indian society, a state of despair stuck in the intricacies of caste continuity, religious endogamy and patriarchal controls. But through this piece, we contend that the shocks of social discomfort cannot dictate constitutional decisions and adjudication. As the founding father of our constitution, Dr B.R. Ambedkar stated, “The constitution is not a mere lawyer’s document, but it's a vehicle of life and its spirit is always the spirit of the age ” the indian constitution should be pictured as a figure of social transformation. As discussed previously in the piece, and from the discourse affirmatively established in judicial precedents. Individual dignity, decisional autonomy and privacy are not predicated on family approval. 

But a purely asolusist framing might also not serve as a propitious framework, as there have been genuine concerns regarding religious coercion or fraudulent inducements in certain matrimonial contexts. Pragmatism surfaces in strengthening institutional safeguards that protect choice without controlling it. Instead of mandating parental consent, the State could invest in neutral counselling mechanisms, safe-house infrastructures, and expedited police protection protocols for consenting adults facing credible threats, measures already contemplated in Shakti Vahini. 

Procedural reforms to the Special Marriage Act, specifically in relation to the 30-day notice, would conform to constitutional morality. The state must act in accordance with its positive obligations under Article 21 to protect life and liberty without regressing into paternalism.  The debate between social morality and constitutional morality is neither novel nor easily resolved. However, Indian constitutionalism, through repeated judicial pronouncements, has privileged dignity over majoritarian sentiment. 

A balanced constitutional approach lies in reinstating that marriage between consenting adults remains a matter of individual choice while simultaneously strengthening protective mechanisms against coercion and violence. A balanced approach rooted in pragmatism would neither romanticise social morality nor dismiss it recklessly, but would be situated in a commitment to the constitution. The constitution was conceived as a transformative charter, not a conservative compromise. To privilege clan consent over adult choice would be to invert that vision.

*Udit Jain is a third-year law student pursuing B.A. LL.B (Hons.) at National Law University, Jodhpur.

*Ruhee Tandan is a first-year law student pursuing BBA LL.B (Hons.) at National Law University, Jodhpur.

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.