Report No. 242
2. The dimensions of problem and the need for a separate law
2.1 The rising incidence of commission of murders of persons marrying outside their caste or religion and other serious offences perpetrated or hostility generated against them and also causing harm to their close relatives or a section of the community on considerations of caste and 'gotra' are matters of grave concern.
Those who may be directly involved in the actual commission of acts of violence or murder are either part of a community or section of the people and may also include members of the family concerned in the case of objected marriages. Very often such incidents and offences are not even taken cognizance at the threshold. The domineering position and strength wielded by caste combinations and assemblies, silence or stifle the investigating and prosecuting agencies.
In so far as the caste or community panchayats play a constructive role in addressing the common problems concerning the society or amicably settling the disputes between the local inhabitants and families, dissuading the people from a criminal path, the mission and the work of these village elders and Panchayatdars can be commended; but, if they exceed their limits, as it is often happening, impose their decisions in matters relating to matrimony and interfere with the legitimate choices of youngsters and indulge in acts of endangering their life and liberty, the law cannot remain a silent spectator in our progressive democratic polity wedded to cherished constitutional values.
2.2 As said earlier, incidents involving grave offences committed against persons marrying or proposing to marry sagotras or outside their castes/religions are periodically reported. It is learnt that number of cases go unreported for fear of reprisals or cascading effects. The intervention of caste/community assemblies in the name of 'Khap Panchayats', 'Katta Panchayats' etc. in the occurrence of these offences and other related incidents involving serious life and liberty consequences, are frequently noticed.
Such assemblies gathered on caste/community lines assume to themselves the power and authority to declare on and deal with 'objectionable' matrimonies and exhibit least regard for life and liberty and are not deterred by the processes of administration of justice.
The penal law lacks direct application to the illegal acts of such caste assemblies. Innocent youth are harassed and victimized while such assemblies continue to wield unhindered authority and also seem to resist any suggestion of being subjected to any social control.
2.3 The pernicious practice of Khap Panchayats and the like taking law into their own hands and pronouncing on the invalidity and impropriety of Sagotra and inter-caste marriages and handing over punishment to the couple and pressurizing the family members to execute their verdict by any means amounts to flagrant violation of rule of law and invasion of personal liberty of the persons affected.
2.4 Sagotra marriages are not prohibited by law, whatever may be the view in olden times. The Hindu Marriage Disabilities Removal Act, 1946 was enacted with a view to dispel any doubts in this regard. The Act expressly declared the validity of marriages between the Hindus belonging to the same 'gotra' or 'pravara' or different sub-divisions of same caste. The Hindu Marriage Act does not prohibit sagotra or inter-caste marriages.
2.5 The views of village elders or family elders cannot be forced on the willing couple and no one has a right to use force or impose far-reaching sanctions in the name of vindicating community honour or family honour. There are reports that drastic action including wrongful confinement, persistent harassment, mental torture, infliction of or threats of severe bodily harm is resorted to either by close relations or some third parties against the so-called erring couple either on the exhortations of some or all the Panchayatdars or with their connivance.