Challenging Customs, Why Allahabad HC Ruled Kanyadaan As Unnecessary

In a remarkable judgement, the Allahabad High Court ruled that the custom of Kanyadaan is not necessary to validate a Hindu Marriage. A bench of Justice Subhash Vidyarthi said that a Hindu Marriage will be considered complete if the custom of saptpadi is performed. The judge made this observation in an order passed on March 22 while referring to Section 7 (ceremonies for Hindu marriage) of the Hindu Marriage Act, 1955.

As per the reports, the court said, "Hindu Marriage Act merely provides saptpadi as an essential ceremony of a Hindu marriage and it does not provide that the ceremony of kanyadan is essential for solemnization of a Hindu marriage." 

Section 7 of the Hindu Marriage Act which the court referred to says that a Hindu marriage is solemnised by either party's customs and rites. The provision also says that if a marriage involves the custom of saptpadi, the marriage is solemnised when the seventh step is taken.

Why was this judgement made? 

The court made this observation while dealing with a petition that wanted to summon the witnesses in a case pending in Lucknow sessions courts. The petition said that there were certain discrepancies in the statement of the witness in regards to the marriage certificate submitted to prove the marriage conducted in 2015.  

The petitioner argued that the two witnesses (daughter and her father) should be re-examined to check whether the custom of kanyadaan was performed or not since that custom is essential to solemnise a marriage. 

The petitioner had earlier gone to the trial court but the petition was rejected under Section 311 Code of Criminal Procedure (CrPC) which gives the court the power to summon a witness.The petitioner then approached the which court questioning the judgement of the trial court.

However, the high court upheld the judgement of the trial court after saying that there was no need to check whether kanyadaan was performed or not to decide if the marriage took place. 

The court's statement was, "Whether the ceremony of Kanyadan was performed or not, would not be essential for the just decision of the case and, therefore, a witnesses cannot be summoned under Section 311 Cr.P.C. for proving this fact."

The court also said that Section 311 cannot be invoked casually on the demand of a litigant. "There can be no denial of the fact that this Court has ample power to summon any witness under Section 311 Cr.P.C., the power cannot be exercised in a casual manner on the mere asking of a litigant. This power has to be exercised merely only when it is essential to summon a witness for a just decision of a case," the court stated. 

With this, the court dismissed the petition. 

The judgement is a ray of hope. Here is why

The judgement is a ray of hope for women in the patriarchal society. The dismissal of the custom of kanyadaan overturns many beliefs or myths that society has created. In the custom of kanyadaan, a woman is objectified as something that is given away to another family. Moreover, the custom implies that since the woman has been 'given away', she no longer belongs to her parental family. And since the woman has been 'given away' to the groom's family, the family can use her in whichever way they want. If they are kind, they will respect her. If not, women will have to reel under torture and harassment as she has nowhere to go.  

If kanyadaan is made necessary to consider a marriage valid, the marriage will be about objectifying women and making them suffer through sacrifices. Shouldn't marriage  be about equality and partnership? 

But the time is changing. Many people are now opposing such regressive customs or reforming it to make it equal. For example, Phalasa and Shiv reformed the Hindu Marriage traditions and turned them into symbols of equality. "We decided for every ceremony for a girl, we’d have a corresponding ceremony for the guy. We both decided to put sindoor on each other, cut out the part of the mangalsutra, and both of us threw rice at the end of the ceremony. There was a male version of kanyadaan as well, and we came up with 'kunwar daan'," Phalasa told SheThePeople.

However, very few couples try to reject regressive rituals or go against the tradition. The ceremony of kanyadaan has been practised for ages. So we certainly needed a firm objection to these sexist and regressive traditions/ The court's order is one such objection. 

Still, it is undeniable that our society runs not by the laws but by the traditions. So apart from objecting sexism in marriage rituals, the protectors of the law need to take action against those who practice it. Police action for practising kanyadaan? Is it not too much feminism? Well, is objectifying women, disconnecting them from their parents and treating them as strangers in the marital homes not patriarchal enough?   

Views expressed are the author's own.