MADHU PURNIMA KISHWAR, May 18, 2010, 12.00am IST
While the murder and brutalisation of those defying restrictions on intra-gotra marriages needs to be strongly condemned and punished, i fail to understand why most sections of the media and progressive opinion are condemning Haryana MPNaveen Jindal for taking up the demand for amendment in the Hindu Marriage Act (HMA) of 1955 to include same-gotra marriages in the category of prohibited relationships for the Jats of Haryana.
The Indian Constitution envisaged that the state shall impose a Uniform Civil Code (UCC). However, till date religious minorities continue to follow what they consider as their personal laws. How then can other communities be denied this right? The very same progressives who dismiss the demand for a UCC as a devious Hindutva agenda treat with utter disdain the demand of other communities for upholding their personal laws.
Insistence on safeguarding one's gotra-based identity is being described as proof of "medieval barbarism". We are told such traditional identities and institutions have no place in the modern world. By that logic, religious identities should also be banned as also the institution of marriage because they too belong to hoary tradition.
The HMA has legitimised certain traditional prohibitions in marriage by declaring sapinda marriages invalid in the eyes of the law. Prohibited relationships include father and daughter; son and mother; father-in-law and widowed daughter-in-law; widowed mother-in-law and son-in-law; widow of the brother or of father's brother or of mother's brother, or of grandfather's brother or of grandmother's brother; brother and sister; uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters. However, after declaring a marriage between uncle and niece invalid in law, the HMA legitimises customary practice of marriages among many south Indian communities between first cousins and between maternal uncle and niece. Such a marriage among many north Indian communities would be considered as good as incest.
The rich diversity of Indian society is based on easy acceptance by traditional communities that their ways do not have to be universally acceptable. Even khap leaders are only demanding that intra-gotra marriages among their community be denied legal sanction. They are not insisting that everyone in India follow their customs. Unfortunately, our modern-day social reformers do not recognise any such limits. They insist that anything and everything they consider right be imposed on all and whatever they consider wrong be prohibited for all through draconian punitive laws, including long jail terms.
While it is fair to term honour killings "barbaric" it is perfectly legitimate for each community to insist on the right to decide for itself what aspects of tradition it wishes to cherish and what it wishes to discard or reform, provided its leaders can enforce community norms through democratic consensus and not life-threatening forms of coercion.
Most of us would feel horrified at a brother and sister from the same parents getting married to each other. But we tend to forget that for those who believe in the sanctity of gotra identity, marriage within the same gotra is as good as incest. In their moral universe, people of the same gotra are like brother and sister. Why judge India's communities by the social and moral norms currently prevalent in the western nuclear family? Why should we compel people to discard practices and kinship values simply because they are "traditional" as long as they do not impose those values through violence?
I hope khap leaders understand that even if intra-gotra marriages are included in the prohibited list of relationships for Jats, the state cannot allow them to hold kangaroo courts and carry out brutal murders. Resorting to barbaric means to prevent same-gotra marriages is a sure sign of the declining moral authority of khap panchayats. It is also a sign that criminal elements have acquired hold over these bodies. Their influence will decline further if this trend is not reversed and they continue trampling over individual freedoms. Nor are they likely to succeed within our legal and constitutional framework in forcing the government to put all such people behind bars. They can at best use moral persuasion to urge youngsters to avoid marrying within the gotra.
But those who wish to opt out of gotra-based identities have to be allowed to do so, without fear of criminal forms of coercion. The Special Marriage Act exists precisely to legalise marriages of those who wish to opt out of their community's customary practices and restrictions. Clan or family members of such rebels have the right to disown and disinherit such persons but cannot be given the right to hound them to death.
For example, under the existing law, marriages between siblings and first cousins are prohibited. But if a brother and sister were to engage in sex or get married to each other, the law does not provide for death or jail terms for incest. No civilised society can sanction murder simply because some people claim a particular person brought them "dishonour". Likewise, no civilised society can allow a small minority of self-appointed social reformers to decide arbitrarily which identities have sanctity and which must be banned out of existence through statist coercion.
The writer is senior fellow at the Centre for the Study of Developing Societies, Delhi.
kishwar's article is very discomforting at various levels. yes, on one hand, she condemns the violence of khap panchayats but on the other, in the name of upholding 'tradition' and personal freedom', she seems to be legitimising such violent institutions. She is forgetting that these khap panchayats are composed of upper caste males and there is no space for the woman here. It is very enlightening and modern to say that people should be allowed to follow their choices, especially when it comes to marriage. but does society really allow them to do so? how can kishwar simply argue that we should respect cultural practices the way they are as long as they don't infringe upon personal space. so, does that mean we should also tolerate child marriages and levirate marriages? the problem is not with tradition and i agree that tradition should not be seen as merely barabric or medieval. it also changes with time. but violence is structural to such traditional practices and it needs to be curbed or reformed.The State has to play an important role through law and governance. it is not only about protecting individual rights but also preventing violence against women and men. and whose 'honour' are we talking about? and what gives these panchayats the right to mruder yougn couples ruthlessly? if we think we are so modern, then why isn't there such a public outcry against such atrocities? why are we keeping silent?
The argument that community traditions, if not violently offensive, advanced in the context of the same-gotra marriage controversy, does seem to be untenable, when considered against the constitutional scheme and goals, crystallised through India's freedom struggle. For, the constitution does not only lays down the framework of governance, but also expects the state to perform a pivotal role while facilitating Indian society's forward movement towards meaningful social change, that does reflect the core cultural values and protect Indian ethos too.
The ideology is totally correct. Every community has rights to coerce its followers to follow traditions till it infringes into personal space. Marraiges in India for most of the communities are rarely personal affair and this institution has kept the society dependent on each other carrying its traditions. Its India and Indian form of thinking needs to be applied here not blindly following the west which doesnt even know what family is let alone a society. At the end of the day if an individual wants to move out and marry he should be allowed, at the same time communities should be allowed to practice their traditions.
Madhu Kishwar's article is detailed, objective and reflects the essence of diversities of our communities. She is right to condemn violent behaviour of certain groups while advocating the independence of opinion of communities represented by Khaps or any other names. It is rare to see such honest analysis today when media is seen as mouthpiece of modern day social reformers who insist that anything and everything they consider wrong be prohibited for all through draconian punitive laws.
if the marital bonding between the same family or gotra is already banned by our social practice and society at all then why shouting is happening. actually this is really immoral to have marriage between same family. hence it may practice as per the norms of society, no requirement to ban legally.
You're making a mistake in logic. If people really saw same gotra marriages as incest, they would never fall in love would they? Are you trying to say that real brothers and sisters don't marry because of the law? They don't marry because they can't think of it.
I totally agree with and endorse Madhu Kishwar's views. If we truly believe in pluralism, we must respect the traditions and norms of various communities and provide room for the existence and validity of their personal laws within our legal framework. The state should also provide legal and personal security to those who seek solutions to their problems outside the community's personal law system, and are willing to sacrifice the social security of their community for their individual freedom. The communities and Khaps should also learn to accept these aberrations and must not take recourse to violence born out of a sense of failure and frustration over not being able to enforce their diktat on some individuals.
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