Outside the law

ON May 9, Naveen Jindal, the young and highly educated Member of Parliament from Kurukshetra in Haryana, was in a dilemma over having to take a stand on the issue of same- gotra marriages after khap panchayats, or caste councils, threatened to lay siege to his residence. The next day, in order to avoid an impending political embarrassment, he attended a meeting of the sarva khap panchayat at Kaithal district as if to extend support to their demands. That ruffled a few feathers.

Of late, khap panchayats have been demanding an amendment to certain sections of the Hindu Marriage Act, 1955, in order to prohibit same- gotra marriages. The immediate context is the March 30 verdict in the sensational two-and-a-half-year-old Manoj-Babli murder case in which a Karnal court awarded the death sentence to five persons. The court also sentenced to life imprisonment two others, one of whom was a khap panchayat leader of the Barwala gotra. Manoj and Babli, both Jats, had apparently violated the norms of village and gotra exogamy and were brutally done to death. A dominant khap in the area had ordered that the couple be killed.

Ever since the judgment, khap panchayats have been on the offensive, perhaps fearing similar verdicts in other cases of honour killing. On April 13, representatives of over 20 khaps met at Kurukshetra and demanded a ban on same- gotra marriages.

Section 29 of the Hindu Marriage Act validates same- gotra marriages. The section, titled Savings, says that a marriage solemnised between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religions, castes or subdivisions of the same caste. Though the Act lists degrees of prohibited relationships, it accepts that under customary law certain marriages are valid. For instance, in certain parts of South India, marriages between cousins (children of a brother and sister) and between a man and his sister's daughter are common and valid by custom.

Also, recognising the plurality of customs in the country, Section 5 (Sub-section 4) of the Act says that a marriage between two Hindus can be solemnised if the parties are not sapindas (meaning, of the same body) of each other, unless the custom or usage governing each of them permits of a marriage between the two. The sapinda relationship with reference to any person extends as far as the third generation in the line of ascent through the mother and fifth in the line of ascent through the father. Khap panchayats want the Act to be amended to disallow same- gotra marriages and it is in this context that they met their elected representative.

A cornered Jindal, in a letter to the khap representatives, acknowledged the existence of khap panchayats since the time of rulers such as Asoka and Harshavardhana and said they had always given a new direction to society. He declared his support to them by saying that the panchayats had been rendering yeoman service to society by resolving people's problems even before the present-day legal system came into existence. As if to balance his unqualified support of their undemocratic diktats, he urged them to take up issues such as female foeticide and dowry.

The young MP made certain pronouncements that indirectly supported the actions of such panchayats. What is shocking in the entire episode is that while khap panchayats have been known to impose their cruel writ on young couples going for inter-caste, inter- gotra or even inter-religious marriages, enforce social and economic boycotts and humiliate families more so if they happened to be poor as well this was the first time that an elected representative was bulldozed into taking a position on same- gotra marriages.

Significantly, no one in the Congress party to which Jindal belongs condemned or protested when the khap panchayats threatened to lay siege to his house. It was as if Jindal had to fight his own battle.

However, Chief Minister Bhupinder Singh Hooda broke his silence a few days later, clarifying that khaps would not be allowed to take the law into their own hands. But he remained non-committal on the issue of same- gotra marriages.

The central leadership of the Congress took a more radical view of the matter and broke its silence when confronted with Jindal's stance. It claimed that his statements were an expression of opinion by an honourable Member of Parliament and that there was no change in the party's stand on the matter, which, according to party spokesperson Abhishek Manu Singhvi, was that no customary law or practice can be excused or condoned in any manner if it involves killing of any kind in the name of honour, tradition or heritage.

The Union Law Ministry has refrained from taking a head-on position regarding the banning of khap panchayats. But, in what seems to a progressive move, in line with what women's organisations have been demanding for long, the Ministry appears to be seriously contemplating to do away with the 30-day notice period required to register marriages, including inter-caste, inter-community and inter-religious ones, solemnised under the Special Marriage Act, 1954.

The one-month time was often used to track down and harass couples. Union Law Minister M. Veerappa Moily has overruled the question of making any change to the Hindu Marriage Act, and indicated that a strong deterrent against khaps issuing death diktats would be set in place. However, khap panchayats have been aggressive in their demand to amend the Act. The representatives of 20 khaps who met at Kurukshetra on April 13 challenged the Karnal court judgment and declared that they would collect money on behalf of those who had been sentenced to death and life imprisonment.

Observers feel that the forthcoming panchayat and municipal elections are one reason for the sudden caste-based mobilisation. On May 2, khap panchayats, in a meeting held at Pai in Kaithal district, gave all elected representatives in the State a month's notice to support their demand.

On May 4, Satbir Chahal, the organiser of the Akhil Bharatiya Jat Swabhimaan Sangathan and the Sarvajatiya Committee (all-caste committee), said that if the demand to amend the Act was not met, tough decisions would be taken at the all-caste panchayat meeting at Jind on May 23. He also announced that the panchayat would not allow the hanging of those who had been sentenced to death in the Manoj-Babli case. According to newspaper reports, representatives from 84 khaps attended the meeting.

The organisation also expressed annoyance with the Congress leadership for labelling Jindal's views as personal. It has asked the Congress to clarify its position on same- gotra marriages.

Not surprisingly, former Chief Minister and Indian National Lok Dal leader Om Prakash Chautala has taken up the issue. He not only supported the demand for amendments to the Hindu Marriage Act but opined that such marriages were not right medically or scientifically. His stand is surprising as his own village, Chautala, has witnessed such marriages.

Om Prakash Chautala also said that he would bring up a proposal in the Assembly regarding the same. He has found an ally in Congress Rajya Sabha member Shadilal Batra, who has supported the demand for an amendment to the Act.

That leaders of the two mainstream parties in the State have taken a stand favouring khap panchayats is a matter of concern. This will have repercussions in neighbouring States such as Rajasthan and Punjab and in western Uttar Pradesh, where Jats as a caste group are dominant.

It is ridiculous. If couples in love are willing to give up their lives to get married, they will find ways of marrying one way or the other, including outside the Hindu Marriage Act. I don't know what these groups and political parties are trying to prove, said Inderjit Singh, State secretary of the Communist Party of India (Marxist), adding that the current trajectory of caste identity politics was worrisome.

Parallel system

It maybe recalled that soon after the infamous Mirchpur incident on April 21, where 18 Dalit homes were torched and a physically challenged girl and her father killed, khaps rallied in support of those arrested in the arson. Many quarters view with concern the attempt to create a parallel law and order system that goes beyond honour killings.

After a long history of struggles, the Special Marriage Act was amended to allow for inter-caste, inter-religious and inter-community marriages. Under the Hindu Marriage Act too, the consent of a person to get married became essential and gotra marriages were not included within the degrees of relationships that were prohibited. It was recognised that a gotra involved a large number of people their numbers running into lakhs who were not necessarily direct or indirect relations of each other. Section 29 of the Act specifically provided that marriages between persons of the same gotra or pravara would not be invalidated, said Kirti Singh, senior lawyer in the Supreme Court of India.

Formerly a member of the Law Commission of India, Kirti Singh said that the issues at stake included the rights of young people to get married according to their choice and to decide when they should get married. Khaps, she said, wanted the Act amended in order to justify their violent acts against young couples in the name of protecting custom and tradition.