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“Khap Panchayats: A Menace to Equal Marital Rights.”


INTRODUCTION

A ‘Khap Panchayat’ is a village organization, though not legally constituted, yet backed by social sanctions, which act as the local guardians of the village customary laws and ‘virtues’ or ‘values’. Dr. G.S. Rajpurohit and Dr. Anand Prakash, in their paper, have defined it in the following terms:-


Khap Panchayats are the self-proclaimed courts which enjoy full legitimacy and authority among the segments of their caste as the custodian of honour. These Panchayats have no constitutional basis and they are not legitimate courts. Under this unconstitutional system, all members crouch around a Chabutara in a village in order to take quick, unilateral and incontestable decision on multiple issues like social transgression, marriage, offences, property rights or regarding situation threatening tranquillity in a village.

Khap Panchayats should not be confused with the Panchayati Raj institutions functioning in every village as the latter is a Constitutional mandate to decentralize power and promote self-governance. However the former is an unconstitutional and undemocratic institution which has no legal sanction or basis of existence.

ORIGIN

Exact origin of Khap Panchayat cannot be found out but we may broadly consider the period of its development in 600 AD. In the ancient times, when the man was living itinerant life, villages were being formed at a rapid rate and the society was heading towards civilization and better standards of living. Khap Panchayats are understood to have come into existence as a social system for maintenance mechanism in those agrarian societies. They are the legacies of the tribal councils, formed by various tribes with a purpose of facilitating resolution of intra-tribal disputes and inter-tribal inter-course. The Khap Panchayats generally consist of powerful elements of the dominant caste. They are generally senior citizens who claim to be considered as upholders of village norms, custodians of rural cultures and guardians of public morality. They have a great hold both at the local and provincial level.


CLASSIFICATION OF KHAPS IN HARYANA

Khaps could be classified into following categories:

  • Based on Single Caste and Single Gotra

  • Based on Single Caste and Multiple Gotra

  • Based on a Multi-caste and Multiple Gotra

(i) Based on Single Caste and Single Gotra: A particular geographical area is dominated by a single Gotra of a particular caste. The Gotra has a sizable number of villages in that area, e.g. Dahiya Khap, Huda Khap, Malik Khap, Sangwan Khap and so on all of which are located in Sonepat, Rohtak, Bhiwani, the districts of Haryana and the Balyan Khap in District. Mujaffarnagar, Uttar Pradesh. These Khaps have about 40084 villages.

(ii) Based on Single Caste and Multiple Gotra: When the entire villages and area dominated by a single caste, with some of the villages dominated by various Gotras, it is considered as Single Caste and Multiple Gotre system. Chaubitii organization of 24 villages of Meham in the Rohtak District of Haryana is an example of such Khap.

(iii) Based on a Multi-caste and Multiple Gotra: This system is renowned as having villages in particular geographical area of which some villages are dominated by a particular caste and other villages by other castes but different Gotras. Bawal Khap of Chaurasi in the Riwari District may be considered as this type of Khap.



SOCIO-LEGAL CHALLENGES POSED BY KHAP PANCHAYATS

In pursuit of their functions, these Khap Panchayats pose various socio-legal challenges to the society. Some of them are listed as follows:-

1. Honour Killings:

Honour killings are murders committed by family members and the people belonging to concerned caste on the verdict of Khap Panchayats or family members of such who are believed to have brought shame or dishonour on family name. The apparent shame is caused by a victim refusing to enter into an arranged marriage or for having a relationship that is considered to be inappropriate by the family or community. The perceived dishonour is normally the result of the following behaviours, or the suspicion of such behavior:

  1. Dress in such a manner which, is not acceptable by the community;

  2. Marriage by own choice (against wish of family or community);

  3. Engaging in certain sexual acts, including those with opposite or same sex.

In Bhagwan Das vs. State of Delhi (2011), where the Apex Court opined that-

"There is nothing honourable in honour killings, and they are nothing but barbaric and brutal murders by bigoted, persons with feudal mind. In our opinion honour killings, for whatever reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilized behaviour. All persons who are planning to perpetrate honour killings should know that the gallows await them."


2. Forced Marriages:

In Khap regime, sometimes marriage performed by pressurizing one or both the parties and without their free will and free consent. The victim of such marriage is forced through coercion, fear, abduction, threat, inducement and deception. A forced marriage can take place, between the people of any group, children, an adult and a child or between adults. The victims of forced marriages experience torture, abduction, threaten, mental and are even forced to commit suicide.


3. Female Foeticide:

The killing of an unborn female foetus is known as female foeticide. To tackle this heinous offence, our Parliament had passed the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994. It was enacted to arrest the declining sex ratio by stopping the sex determination tests and penalizing pre-natal sex determination. Apart from this Act, the I.P.C under Sec. 312 to 317 also imposes restriction on termination of pregnancies.


4. Prohibition on ‘Sagotra’ Marriage:

Khap Panchayat prohibits Sagotra and inter-caste marriage. The marriages are governed by Khap on three important principles; those are:

  1. Marriages within the same Gotras is forbidden since in that case a boy and girl are regarded as a brother and sister;

  2. Marriages in the different Gotras are forbidden if a boy and girl belong to the same village or physically adjoining villages;

  3. Inter-caste marriages are strictly barred.

5. Gang rape:

It is shocking to note the diabolical nature of the verdicts of these Khap Panchayats. In 2014, a Khap Panchayat in the Birbhum District of West Bengal ordered gang-rape to be committed on a 20 year old girl in a village named Subalpur, for having affairs with a man from another community. The Supreme Court took suo motu cognizance of the issue and preferred a writ petition for securing the ends of justice in the matter. The Court ordered the State to pay a compensation of Rupees 5 Lakhs to the victim and gave directions in strict terms to adhere to the laws regarding registration of FIR as laid down in Lalita Kumari v. Govt. of U.P. and the above mentioned facts are of the case of In Re Indian Woman.



JUDICIAL SOLUTIONS TO A SOCIAL PROBLEM: JUDICIAL TRENDS

Through a catena of judgements the Indian judiciary has played a vigilant role in curbing the menace of Khap Panchayats from the society.

In Smt. Laxmi Kachhwaha vs. State of Rajasthan (1999), a public interest litigation was filed in the Rajasthan High Court to draw the attention of the Court to illegal functioning of Caste Panchayat on the weaker-sections of the concerned communities, especially on women. The Court observed that these Panchayats had no jurisdiction whatsoever to pass social boycott order, or to impose fine on anyone and to violate the basic rights of an individual. It ordered the state authorities to take steps for preventing the abuse of social influence by restraining such Panchayats from functioning and ensuring arrest and punishment to its members.

In State of UP vs. Krishna Master & Ors. (2010) the Apex Court made an extraordinary move by awarding life sentence to the three accused of honour killing who murdered six persons of a family. The Bench further observed that "wiping out almost the whole family on the flimsy ground of saving the honour of the family would fall within the rarest of rare cases.

Similarly, in Arumugam Servai vs. State of Tamil Nadu(2011), the Apex Court interpreted law on this matter that in case of age of majority, the young couple has statutory right to marry. What the parents do is that they can cut off their social relations with them, but cannot give threat them or kill them. The Court further observed that "Khap panchayats (known as kata panchayat in Tamil Nadu) often decree or encourage honour killings or other atrocities in an institutionalized way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives of people. It is wholly illegal and has to be ruthlessly stamped out. .... there is nothing honourable in honour killings or other atrocities and, in fact, it is nothing but barbaric and shameful murder.”


KHAP PANCHAYATS AND RIGHT TO MARRIAGE – CASE STUDY

Shakti Vahini v. Union of India (2018) 7 SCC 192

Facts - In this case, the petitioner which is an organization named “Shakti Vahini” was authorized to conduct a Research Study on Honour Killings in Haryana, Punjab, and Western U.P. in which they have come across the fact that these instances are rising by leaps a