Judge Kohli - Role of India Judiciary in Reconciling Cultural Values and Human Rights

7/26/2019 Judge Kohli - Role of India Judiciary in Reconciling Cultural Values and Human Rights

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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

Judge Kohli - Role of India Judiciary in Reconciling Cultural Values and Human Rights

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