Consent under the Hindu Marriage Act 1955 is with reference to the unsoundness of mind, mental disorders or insanity of either spouse at the time of marriage. Such consent should be in the absence of the aforementioned conditions which secure the solemnization of a Hindu marriage between two Hindus. However, consent, even in the absence of any form of mental illness, is not discussed under the scheme of the said Act. A petition challenging the Constitutional validity under Article 14 and 21 of Section 5(ii) and 7 of the Act was filed before the Supreme Court which refused to hear the challenged but allowed interim relief to the petitioner.
The facts are that the Petitioner was married to Respondent No 6 forcefully without any consent of the Petitioner and thereby the right to choose her life partner was violated. The Petitioner was coerced, threatened, blackmailed, harassed and threatened by her immediate family members into marrying Respondent No 6. The Counsel for the petitioner, Indira Jaisingh also emphasised the distress faced by the Petitioner and accordingly submitted evidence in respect of the same. It was further argued that the language of the terms ‘incapable’ and ‘unsoundness of mind’ are vague and peculiar. The Hon’ble Chief Justice replied to this argument as follows:
“The interpretation will be made when lis arises… if the family court refuses to declare the marriage null and void for lack of consent and the High Court agrees, then we shall interpret”
Subsequently, the Apex Court refused to go into the issue of maintaining that the statues is clear regarding the aspect of consent but granted the prayer of the Petitioner for seeking police protection.
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