Panchayati Divorce: Its Implications and Legal Sanctity

“Is your husband your friend as well?” I asked.* A question that was included in the questionnaire to understand the general power dynamics.

Reena** paused for a while and with a frowned face and sad eyes looking at the floor, she said, “No, we fight a lot. We fight almost daily on one or the other matter and sometimes I have to call my mother to talk to my husband and in-laws. He restricts me from doing whatever I want to do. I am currently filling forms for the vacancies in the police force and teaching departments and he doesn’t know about it. I need to hide this from him otherwise he won’t let me apply for jobs.”

After a pause, I moved on to the next question, “Was your husband proud and supportive of your education when you were at Veerni?”

She said, “I was married when I was 13 years old. I didn’t know much about my husband until I started staying at my matrimonial house. My husband is illiterate and he doesn’t allow me to do anything that I want to do. My parents ensured that I complete my 12th grade. I am thankful to Veerni and especially Jacqueline Ma’am (Veerni’s founder) because of whom I was able to complete my graduation as well.”

As we moved on to the other sections of the questionnaire, she shared a few of her problems which indicated that she didn’t want to be in that marriage. I suggested, “If you are not at all happy even after so many years, you always have an option to file for divorce.”

She again looked down and while folding a side of her dupatta on her fingers, she said, “I think about it but it’s not possible. That’s why I am trying to secure a good job in Jodhpur.”

I said, “Okay. Why do you feel it’s not possible? Even Vishnu** [1] recently obtained a divorce a few years ago and is happily remarried.”

She shared, “Things were different for her. Her father was very supportive. The Panchayat will also require us to pay them about Rs. 5, 00, 000 [2]  for obtaining a divorce and they will also outcast my family for a few years. Even her family was outcasted but they came back to the village within a year. His father denied paying any amount to the village Panchayat and went straight to the legal route.”

I was shaken to the core. I gathered my senses and said, “This is arbitrary and illegal. You are not required to pay anything to get a divorce.”

She said, “Yes, maybe, but the village Panchayat will require us to do so.”

I was extremely disappointed with this revelation. I later had an informal conversation with Vishnu’s father and he confirmed the same. He shared, “There are a few girls who are suffering from the consequences of child marriage and they approach me. It’s disheartening to see their situation.”

The introductory chapter of the Human Rights Law Network’s Child Marriages and the Law in India dispels the myth that child marriage is an age-old issue: “The ancient Indian literature indicates no prevalence of child marriage at that time. The most popular form of marriage was the Swayamvara where grooms assembled at the bride’s house and the bride selected her spouse. … One [Rigveda] hymn mentions that a female should be married only ‘when she is not a child.'”[3] The Prohibition of Child Marriage Act, 2006 focuses on abolishing child marriages in India and punishes the perpetrators. Additionally, under Section 375 of the Indian Penal Code, 1860, sexual intercourse of a man with his wife who is under 15 years of age constitutes as rape.

An article interviewing a father who tries to get his daughter out of a marriage, confirms the practice of Panchayats asking for an unaffordable fee to break off the marriage: “Technically he could end the marriage without paying the fee. The panches have no formal power and child marriage was actually outlawed in India years ago. Still, says Lumbaram, if he were to end things without the panches‘ okay, ‘they would say that I have to be completely ostracized for life. My brothers would stop talking to me. If I were to go into a shop, nobody would sell me anything. If my wife were to go the well no one would help her carry the water. It would be like being dead while you’re still alive.'”[4]

The laws of the country consider the importance of customary laws and courts have upheld customary divorces that are valid and consistent with the natural justice principle. The divorces granted by the Panchayats which were immoral, against the public policy or dependent upon some unreasonable socio-economic penalties were not upheld [5].

In the 1876 Bombay High Court case Reg v. Sambhu Raghu, it was held that the court would not recognize the authority of a caste to declare a marriage void [6]. In the 1916 Bombay High Court case of Bai Ganga v. Emperor, the court adhered to the same principle by not recognizing “the authority of the caste to declare a marriage void, or to give permission to a woman to re-marry”[7], [8]. In the Rajasthan High Court case of 1962, Kishenlal v. Mst. Prabhu, High Court Judge I. Modi similarly found that “I have no manner of hesitation in laying down that a custom, by which the subsistence or dissolution of the marital tie, the consequence of which would indeed be momentous on the parties concerned, is left to depend upon the mere caprice or whim of those assembled at the Panchayat meeting, is intrinsically contrary to reason and would be definitely opposed to public policy”[9]. The decision of the Panchayat was held to be contrary to the laws of the country and against natural justice. In 2010, the Supreme Court in Mahendra Nath Yadav v. Sheela Devi confirmed that there is no legal sanctity attached to verdicts of village panchayats that touch the personal lives of couples, even if the local community accepts such decisions [10].

Most of the villagers are not aware of their rights and the available legal course of action. The victims of such practices and their families are often asked to pay an unaffordable penalty to get out of abusive, broken, or child marriages. Most of the families fail to fulfill these demands and their daughters suffer till their last breath, as a consequence. That’s why it’s so important to spread awareness and rise up against this practice.


Notes:

*All translations are mine.

**The names of the former students have been changed due to safety concerns.

References:

[1]  Vishnu was her junior at Veerni. Reena and Vishnu grew up in the same village.

[2] Refer to Aizenman, Nurith. “A Father Vows to Save His Daughter from a Marriage He Forced Her Into.” NPR.org, Goats and Soda – Stories of Life in a Changing World. 15 Aug. 2016. https://www.npr.org/sections/goatsandsoda/2016/08/15/489790411/a-father-vows-to-save-his-daughter-from-a-plight-he-got-her-into.; See also Parmar, Ajay. “Jodhpur Girl Approaches Court To Annul Marriage.” Times of India, 13 June 2012. https://timesofindia.indiatimes.com/city/jaipur/Jodhpur-girl-approaches-court-to-annul-marriage/articleshow/14070695.cms.

[3] Bhat, Aparna, et al. “Chapter 1: Introduction.” Child Marriages and the Law In India. Human Rights Law Network, June 2005. Pp. 11-12. https://hrln.org/wp-content/uploads/2017/09/Child-Marriage-and-the-Law.pdf. Refer to this volume for additional information on child marriages in India.

[4] Aizenman, Nurith. “A Father Vows to Save His Daughter from a Marriage He Forced Her Into.” NPR.org, Goats and Soda – Stories of Life in a Changing World. 15 Aug. 2016. https://www.npr.org/sections/goatsandsoda/2016/08/15/489790411/a-father-vows-to-save-his-daughter-from-a-plight-he-got-her-into.

[5] Narayan Bharthi v. Laving Bharthi ILR 2 Bom 140 ; Keshav Hargovan v. Bai Gandi AIR 1915 Bom 107.

[6] ILR 1 Bom 347.

[7] AIR 1916 Bom 97.

[8] Kishenlal v. Mst. Prabhu, AIR 1963 Raj 95.

[9] Ibid.

[10] Mahapatra, Dhananjay. “Panchayat Rulings Have No Legal Sanctity, Rules Apex Court.” Times of India, 27 August 2010. http://timesofindia.indiatimes.com/articleshow/6440718.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst.

Ayushi is serving as an American India Foundation (AIF) Clinton Fellow with Veerni in Jodhpur, Rajasthan. For her Fellowship project, she is assessing the impact of an initiative designed to prevent child marriages in rural villages by enrolling girls in quality secondary education and life skills training. Ayushi completed her B.Com LL.B. (Hons.) in 2019. She believes that the world would be a happier place to live in if we learned to treat all living beings with humanity and basic dignity, irrespective of our biological and psychological differences, belief systems, and distinct genetic makeup. Through the AIF Clinton Fellowship, she will be working with issues related to female education and child marriage. She wishes to help the women and the LGBTQIA+ in utilizing their innate power and channelizing that energy in breaking societal chains, gaining inner liberty, and happiness. In order to educate herself with the realities, she studied subjects such as law and social transformation, liberty, equality and justice, and completed a credit course on comparative human rights. She interned at the Vidhi Centre for Legal Policy and at the Centre for Civil Society under Fellowship91 in New Delhi, and the Alternative Law Forum in Bengaluru. She visited villages in Madhya Pradesh to understand the difficulties faced due to water scarcity. She enjoys writing blogs and research papers and has written on several issues related to drug usage as a criminal justice problem or a health problem, lawyers becoming casualties of their profession, homosexual marriages, sin taxation analyzing the taxes payable by prostitutes in India, and hate speech and freedom of speech and expression. In her free time, she enjoys listening to music, singing, writing poems, and reading books.

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