2022 RLLR 102

Citation: 2022 RLLR 102
Tribunal: Refugee Protection Division
Date of Decision: February 26, 2022
Panel: Andrew Hwang
Counsel for the Claimant(s): N/A / S.O.
Country: India
RPD Number: TC1-04988
Associated RPD Number(s): N/A
ATIP Number: A-2023-01023
ATIP Pages: N/A

REASONS FOR DECISION

[1]       These are the reasons for decision of the Refugee Protection Division (RPD) in the claim for refugee protection of XXXX. He is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”)[i]. The claimant alleges to be a citizen of India.

[2]       The claimant was not represented by counsel at the hearing. At the first sitting, he requested, and was granted, time to find new representation after his previous counsel withdrew from the case a month prior to the hearing date. However, in resumption he indicated he was unable to retain new counsel due to financial issues, and that he was comfortable to proceed on his own. While a claimant has a right to counsel, it is not an absolute right, and a particular claimant may proceed by choice without representation if the panel is satisfied that there is otherwise no breach of natural justice. Nonetheless, the panel informed the claimant it would try to use plain language or provide an explanation for certain terms and reminded him he may speak up if he did not understand at any point.

DETERMINATION

[3]       The panel finds the claimant to be a Convention refugee, and that he faces a serious possibility of persecution should he return to India, on account of membership in a particular social group.

ALLEGATIONS

[4]       The specifics of the claim are set out in the narrative of the claimant’s Basis of Claim Form[ii]. To summarize, the claimant alleges that he fears persecution due to the sentence of honour killing imposed upon him by the elders of the Khap Panchayat (“Khaps”) in his village. He said this came about after his fiancé died XXXX and her brothers blamed him for causing her

death after the couple continued to see each other despite being restricted by rules that prohibit inter-clan (gotra) marriages between people considered to be related due to sharing the same family name. He indicated this was enforced among the members of his Jat caste by the Khaps in the surrounding villages of his area. He and his fiancé refused to comply with this rule and continued their relationship, even through her diagnosis and treatment, until the day she passed. After her death, he testified that her brothers misrepresented facts to the elders and paid a bribe in order to obtain a death sentence on him as retribution. He further alleges that he faces a risk of honour killing among his Jat community as they would be obligated to report his whereabouts wherever they see him anywhere in the country.

IDENTITY

[5]       The personal identity of the claimant as a citizen of India has been established, on a balance of probabilities, by a copy of his Indian passport[iii].

NEXUS

[6]       The panel finds there is a nexus between the harm the claimant fears and a Convention ground, namely membership in a particular social group as a member of the Jat caste who faces a sentence of honour killing from the Khap Panchayat of his village.

CREDIBILITY

[7]       The panel finds the claimant to be a credible and trustworthy witness. His testimony was straightforward, genuine, and unembellished. There were no relevant inconsistencies, contradictions, or omissions that went to the heart of his claim. Therefore, the panel finds, on a balance of probabilities, his allegations to be true.

Same-Gotra Marriage Prohibition

[8]       The claimant testified that he met and fell in love with a woman named XXXX (“XXXX”) at his workplace back in 2007. He was a XXXX at a college, and she was a XXXX who often went to the library to work and take out books. The couple lived about 25 km apart in their respective villages, and their relationship slowly blossomed over time to the point when he

proposed marriage to her on XXXX in 2008. Prior to this, they were discreet as it was uncommon for young people to date for love without parental involvement in arranged relationships.

[9]       When he finally decided to inform his family after his proposal, his father told him that XXXX mother has the family name XXXX which is shared by those on the maternal side of his family. Because of this, he and XXXX are considered to be from the same clan, or “gotra”, and are prohibited to marry by rules of the Khap Panchayat because they are considered to be brother and sister. When asked, the claimant explained that these ancient rules were created a long time ago to avoid possible incest among villagers who lived in close proximity to each other. In his village, his Khap is part of the Satrol Khap that encompasses multiple villages in a large area so the same-gotra marriage prohibition applies to every villager that falls under it jurisdiction. The same rules governing gotras are also prevalent among his Jat caste, which represents about 60% of people in his state of Haryana and comprise a large percentage of people in Northern India with a smaller but consistent number throughout the country. The Jats consists of about 30 to 40 million people in South Asia, spread across religions and languages.

[10]     Despite this, the claimant said he did not accept the ancient edict that stood in his way of marrying the woman he loved. He spoke to XXXX whom he said confirmed her maternal family name XXXX. XXXX had only told her mother about accepting the proposal in secret, and was informed of the gotra prohibition. Family members of both sides denied approval for the couple to be married. The claimant said they agreed to put off a wedding and continued to date discreetly. They would meet clandestinely in a shed among the farm fields near his village every couple of weeks. However, XXXX brothers soon learned of her secret meetings with him from villagers, and began to target him. On XXXX, 2008 he was dropping her off at a bus stop after work when a group of local young men beat him and told him to stay away from her. He ignored their threat and continued to see her. A year later in XXXX 2009, he testified that he was fired from his XXXX job due to the influence of the college chairman who was from XXXX village and was familiar with her family.

[11]     In late 2009, XXXX discovered a XXXX and went for medical examination at which she was diagnosed with XXXX She underwent a mastectomy and began chemotherapy treatments. Over the next several years, the claimant said it was a challenge due to his emotional turmoil over her illness and her health limits making it difficult for them to meet as she had to take frequent leaves from her employment. Her family was also keeping a more vigilant eye on her because of her medical condition, and her brothers became more protective, especially as her situation worsened and the XXXX. The family had used their political influence to have the claimant’s job terminated in 2019, for which he filed a labour claim against his former employer on XXXX, 2019.

[12]     XXXX passed away on XXXX, 2019, which unleased her family’s anger on the claimant. After her funeral, her brothers called a meeting at the Khap Panchayat on XXXX with his family. The claimant said his father was worried that he may not be safe, and advised him to be hiding instead of attending the meeting with the family. Afterwards, his father told him XXXX brothers lied to the XXXX and XXXX elders that he and XXXX were secretly married against the same-gotra prohibition. The Panchayat sentenced the claimant to death to restore XXXX family honour, and banned his entire family from the village for two years effective immediately. His family moved to a village named XXXX about 60 km away, and he hid at a friend’s home until he was able to leave for Canada on XXXX, 2020.

[13]     The claimant provided the following documents as evidence:

Affidavit dated February 11, 2022 by a family friend and neighbour XXXX describing the claimant’ s relationship with XXXX, the couple belonging in the same gotra and Jat caste, the prohibition for the two to marry, the Panchayat’ s death sentence to him, and for all members of

the Khap and caste to be on the lookout for the claimant so XXXX family can carry out the honour killing[iv];

·      Photos of XXXX[v];

·      Labour claim report dated XXXX, 2019 filed by the claimant against his former employer for misconduct during his employment[vi];

·      Documents showing his prior employments and XXXX educational credentials per his testimony[vii].

The panel finds these documents to be credible and trustworthy and gives them full weight in support of the claimant’ s allegations in his claim.

[14]     The panel asked why the claimant did not disclose more proof, especially probative

evidence about XXXX, the gotra prohibition, and what had happened throughout the relationship as he had spoken to in testimony. The claimant said he wasn’t aware what type of evidence he was required to provide. Due to his dispute with his previous counsel that left him without ongoing benefit of legal advice, the panel deems his explanation reasonable and accepts it. Moreover, in light of the claimant’s overall credibility, the panel will not draw a negative inference from a lack of more corroborating evidence.

Prospective Fear

[15]     When asked what he fears should he return to India, the claimant said he is afraid of XXXX family because her brothers would go so far as to lie about him being secretly married to her in defiance of the gotra rules to obtain a death sentence from the Khap Panchayat. He believes the brothers have the intention to carry out the honour killing against him. He further testified that her family continues to ask about him, most recently three months ago to his paternal uncle who still resides in his village.

[16]     The claimant has established, on a balance of probabilities, that he has developed a relationship with a woman from a nearby village that belonged in the same gotra as his family; that as a result he was prevented from being married to her due to the prohibition imposed by his Khap Panchayat; that the couple continued to see each other romantically in spite ofthis rule; that the relationship angered her family and the claimant had been threatened and lost his jobs due to political influence by her brothers; that she later died XXXX and her brothers lied to the Panchayat elders that he secretly married her against the rule; that he was sentenced to death as a penalty with his family banished from the village for two years; and that he believes he would face the risk of honour killing should he return to India.

[17]     For the above reasons, the panel finds that the claimant has established subjective fear of persecution based on membership in a particular social group.

OBJECTIVE BASIS

[18]     The National Documentation Package (“NDP”) for India indicates that a Khap Panchayat is an assembly of elders; it has no official government recognition or authority, but can exert significant social influence within the community it represents[viii]. Members of Khap Panchayats are all male, though they often make decisions affecting women[ix]. In some parts of the country, informal social systems like the male-only Khap Panchayats (or Khaps) pass decisions and judgements on marriage, based on traditions[x]. They are mainly found in Haryana and parts of Rajasthan, Uttar Pradesh, Punjab and Madhya Pradesh[xi]. Punishments in marriage cases include fines, social ostracism, public humiliation and expulsion from the village[xii]. Risk of violence that can result in death of one or both of the parties to the mixed marriage is higher in communities in which Khap Panchayats operate[xiii]. Despite the Supreme Court ruling against the practice, intrusions by Khaps to stop a legal marriage between consenting adults continue[xiv]. Analysts have claimed there is a lack of political will to act against Khap Panchayats given their influence over large numbers of voters[xv].

[19]     Khap panchayats – unelected, extrajudicial councils of 5 to 15 elderly men that have a lot of local authority in some villages – have been known to illegally sanction or order honour crimes against couples for inter-caste marriages, inter-religious marriages, and marriages of people within the same gotra (clan)[xvi]. The Law Commission of India advised that Khap Panchayats assume to themselves the power and authority to declare on and deal with “objectionable” matrimonies, but that such authority is unlawful[xvii].

[20]     Unofficial village caste councils, called Khap Panchayats, in several north Indian states such as Haryana, Uttar Pradesh, Punjab, and Rajasthan operate as moral police, wielding control over society, including women’s behavior[xviii]. They are known to issue edicts condemning couples for marrying outside their caste or religion and condemn marriages within a kinship group (gotra), considered incestuous even though there is no biological connection[xix]. To enforce these decrees and break up such relationships, family members have threatened couples, filed false cases of abduction, and killed spouses to protect the family’s “honour”[xx]. The practice persists even though the Supreme Court of India has declared such actions by Khap Panchayats to be “wholly illegal” in April 2011[xxi]. Local politicians and police are often sympathetic or turn a blind eye to the councils’ edicts, implicitly supporting the violence[xxii].

[21]     In spite of court rulings and legal opinions, Khap Panchayats continue to exist, and even appear to have institutional support. An article dated January 10, 2020 submitted by the claimant from the Indian English newspaper Deccan Herald states: “In a state infamous for outlandish diktats by Khap panchayats, Haryana chief minister Manohar Lal Khattar on Friday publicly lend credence to ‘Khap ideology’ that vehemently opposes ‘same gotra’ marriages and nuptial knots solemnized within the same village”[xxiii]. The chief minister’s statement not only conflicts with the law, but he went further to indicate that Khaps in his state were being defamed and that people should not enter same-gotra marriages[xxiv]. Khattar added: “Khaps have been talking about this. It’s also been scientifically proven that same gotra marriage should not be solemnized. Haryana has certain traditions that live on, even as there is some contradiction with the constitution on this, which needs public education. Education is given to children in villages against this so that brother­sister bhaichara (brotherhood) is maintained”[xxv]. Under the law, there is no restriction to consenting adults to engage into any form of marriage, regardless of caste, creed, village bounds, or gotra[xxvi]. There were even cases in Punjab and Haryana High Court that intervened to help runaway couples who were restricted by prohibition on same gotra marriages from “self-styled groups” that have passed diktats declaring married couples who enter such a union as brother and sister[xxvii].

[22]     This type of rhetoric from state officials entrench the phenomenon that could lead to honour crimes, which may occur as a result of inter-caste marriages, interreligious marriages, marrying within the same “gotra” (clan, kinship group), inter-class marriages, or marriages against parents’ wishes[xxviii]. Male family members, which could include a parent, brothers, cousin, and uncle, are typically the perpetrators, but they are often supported by members of the community, and are sometimes motivated because the victim went against the will of the community as well as the family[xxix]. Honour crimes occur in all sectors of society, all communities, all religions, and all castes in India; they reportedly occur in both urban and rural areas, although sources indicate that they are more frequent in rural areas[xxx]. Honour killings remain a problem, especially in Punjab, Uttar Pradesh, and Haryana[xxxi]. On August 21, 2017, the Supreme Court sought suggestions from NGO Shakti Vahini and Khap Panchayats on ways to prevent harassment and killings of young couples in the name of family honour[xxxii]. The most common justification for the killings cited by the accused or by their relatives was that the victim married against her family’s wishes[xxxiii].

[23]     Based on the claimant’s evidence and the country conditions cited above, the panel finds that his subjective fear has an objective basis, and that he faces a serious possibility of persecution in India. Therefore, the panel finds that the claimant has a well-founded fear of persecution in the country.

STATE PROTECTION

[24]     There is a presumption that states are capable of protecting their own citizens. However, a claimant can rebut the presumption of state protection and demonstrate that they would not receive such protection by providing clear and convincing evidence of the unwillingness or inability of the state to protect them.

[25]     According to the NDP for India, family members often perpetrate acts of honour-based violence against individuals with other relatives, friends or a certain body of persons like the caste or Khap or community-based Panchayats; in some cases, Khap Panchayats are the main perpetrators[xxxiv]. Caste Panchayat, Khap Panchayat, or Katta Kanchayat encourage honour killings or other atrocities in an institutionalized way on boys and girls of different castes and religion[xxxv]. Sources indicate that Khap Panchayats are found in the following states: Rajasthan, Uttar Pradesh and Haryana[xxxvi]. Honour killings are usually not even registered by the police as caste-based crimes[xxxvii]. Even when cases are reported, perpetrators get out of jail on bail within a few months[xxxviii].

[26]     Human Rights Watch found that in multiple cases in Haryana victims did not report a case or turned hostile during trial because of the pressure from the councils[xxxix]. Victims often find police are initially reluctant to file an FIR or have the survivors medically examined, and are soon forced to leave their village due to harassment and threats from the Khap Panchayat[xl]. US Country Reports 2018 indicates that the Supreme Court also ordered state-level governments to take remedial, preventive and punitive actions to stop honour killings and create special cells in all districts to report harassment and threats to inter-caste couples[xli]. Still, when couples are in need of help, they want to go to the police station, but they are fearful of doing so[xlii].

[27]     Based upon the claimant’s credible testimony and the objective evidence cited above, the panel is satisfied, on a balance of probabilities, that the presumption for him has been successfully rebutted with clear and convincing evidence. The panel therefore finds that state protection in India is inadequate and would not be reasonably forthcoming for him.

INTERNAL FLIGHT ALTERNATIVE

[28]     The panel has considered whether a viable internal flight alternative (“IFA”) exists for the claimant in India, and finds he does not have a reasonable IFA anywhere in India. He testified that as Indian, he cannot keep his caste identity a secret and that word of his death sentence by the Khap Panchayat would have spread among the Jat community. As such, the panel is satisfied by his argument.

[29]     In assessing an IFA, the panel must apply a two-pronged test cited in Rasaratnam with respect to its safety and reasonableness[xliii]. One of the prongs must be satisfied to find that the claimant does not have an IFA. The burden of proof rests with a claimant to show that they do not have an IFA. The finding of an IFA must be based on a distinct evaluation of a region for that purpose, taking into account the claimant’ s identity. An IFA must be a realistic and attainable option. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in traveling there or staying there.

[30]     In India, certain procedural hurdles under the law reportedly are difficult to meet for persons who wish to keep their marriage secret or who wish to elope because it requires public announcement ahead of the marriage allowing for public objections to be made[xliv]. All couples who marry in a civil ceremony are required to give 30 days of public notice in advance of their marriage for public comment, which includes their addresses, photographs, and religious affiliation[xlv]. Although the law permits inter-marriages, they are seen as a complete disjuncture with what Indian society believes is acceptable or morally right[xlvi]. A majority of marriages in India are still arranged by family[xlvii]. Sources report violence against intermixed couples, including honour killings being carried out by caste-based local councils called Khap Panchayats, mainly in the north of India, in rural areas[xlviii]. Honour killings remained a problem, especially in Haryana, Punjab, and Uttar Pradesh[xlix]. In 2018, the Supreme Court declared it illegal for Khap Panchayats to attempt to end marriages between consenting adults and called for punitive action against village councils that impose punishments, including murder, on prohibited couples[l].

[31]     Couples in “love marriages” from rural areas often attempt to move to a large city to seek anonymity[li]. Nevertheless, when a couple faces community pressure, they are ostracized and must relocate; they typically move to a larger city, where they often encounter difficulties finding work and housing due to a lack of personal networks in the area[lii]. In Indian cities and neighbourhoods, people actively seek to know each other’s business in which couples spoke of being questioned about their marriage by neighbours or employers, and of families that would find them after moving because the parents had relatives or friends in the police force[liii]. Couples who relocate to a large city may change their names or hide their identity when trying to rent housing or encounter difficulty renting as an inter-caste couple[liv]. Factors impacting a mixed couple’s ability to move to a larger city include the following: Financial capacity; degree to which the family has power and determination to locate the couple; educational background and employable skills; availability of a personal support network of friends or relatives; and whether they appear “visibly different”[lv].

[32]     Indian law does not cover situations where discrimination on various grounds is practised in private sector organisations including clubs, societies, NGOs, educational institutions, hospitals, and Khap Panchayats (assemblies of male elders who assert considerable influence over village/clan affairs)[lvi]. Indian law does not cover discriminatory attitudes based on marital status, caste-affiliation, sexual orientation, disability, religion or food preferences[lvii].

[33]     The claimant said wherever he may relocate in India, he will eventually be identified via his Jat caste as he cannot keep that hidden among Indian society. Even though the Jat community is most prominent in the northern states, there are about an average of 3% of Jat people, which number about 30 to 40 million in South Asia, throughout the country in other states. The death sentence imposed on him was from the Satrol Khap in his state of Haryana, but it is applicable across the Jat community nationwide. He may not be found out immediately, but eventually someone from his caste may learn of the sentence and by duty must inform the Panchayat elders from his village, which will in turn notify XXXX family. Her brothers are angry about her death and blame him for it for carrying on a relationship in secret for years. They will not stop at seeking him out to kill him to restore honour to their family.

[34]     On the evidence presented, including the objective documentation in the NDP, the panel finds that there is a serious possibility that the claimant would be persecuted or that he would be subjected, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture in India under the first prong. Since the claimant has met the burden of satisfying the first prong, there is no need to assess the second prong. As such, the panel concludes there is no viable IFA for him in the country.

CONCLUSION

[35]     For the reasons above, the panel concludes that the claimant is a Convention refugee pursuant to section 96 of IRPA.

[36]     Therefore, the panel accepts his claim.

(signed) A. Hwang

February 25, 2022

[i] Immigration and Refugee Protection Act, S.C. 2001, c. 27).  

[ii] Exhibit 2. 

[iii] Exhibit 1. 

[iv] Exhibit 5.  

[v] Ibid. 

[vi] Ibid. 

[vii] Ibid. 

[viii] Exhibit 3. NDP India, 30 June 2021, Item 1.5 DFAT Country Information Report India. 

[ix] Ibid. 

[x] Ibid. 

[xi] Ibid. 

[xii] Ibid. 

[xiii] Ibid. 

[xiv] Ibid. 

[xv] Ibid. 

[xvi] Exhibit 3. NDP India, 30 June 2021. Item 5.9 Country Policy and Information Note. India: Women fearing gender-based violence. 

[xvii] Ibid. 

[xviii] Exhibit 3. NDP India, 30 June 2021. Item 5.4: Everyone Blames Me: Barriers to Justice and Support Services for Sexual Assault Survivors in India, 

[xix] Ibid. 

[xx] Ibid. 

[xxi] Ibid. 

[xxii] Ibid. 

[xxiii] Exhibit 5. Deccan Herald, 10 January 2020, Article. Khattar opposes ‘same village, same Gotra’ marriages. 

[xxiv] Ibid. 

[xxv] Ibid. 

[xxvi] Ibid. 

[xxvii] Ibid. 

[xxviii] Exhibit 3. NDP India, 30 June 2021. Item 5.9 Country Policy and Information Note. India: Women fearing gender-based violence. 

[xxix] Ibid. 

[xxx] Ibid. 

[xxxi] Ibid. 

[xxxii] Ibid. 

[xxxiii] Ibid.
[xxxiv] Exhibit 3. NDP India, 30 June 2021. Item 5.10 Honour-based violence, including prevalence in rural and urban areas; legislation; state protection and support services available (2016-May 2020).  

[xxxv] Ibid. 

[xxxvi] Ibid. 

[xxxvii] Ibid. 

[xxxviii] Ibid.

[xxxix] Exhibit 3. NDP India, 30 June 2021. Item 5.4 Everyone Blames Me: Barriers to Justice and Support Services for Sexual Assault Survivors in India.  

[xl] Ibid. 

[xli] Exhibit 3.NDP India, 30 June 2021. Item 12.5 Situation of inter-religious and inter-caste couples, including treatment by society and authorities; situation of children from such marriages (2017- May 2019). 

[xlii] Ibid. 

[xliii] Rasuratnam, Sivaganthan v M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasuratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), p. 710.  

[xliv] Exhibit 3. NDP India, 30 June 2021. Item 12.5 India: Situation of inter-religious and inter-caste couples, including treatment by society and authorities; situation of children from such marriages (2017- May 2019). 

[xlv] Ibid. 

[xlvi] Ibid. 

[xlvii] Ibid. 

[xlviii] Ibid. 

[xlix] Ibid. 

[l] Ibid. 

[li] Ibid. 

[lii] Ibid. 

[liii] Ibid. 

[liv] Ibid. 

[lv] Ibid. 

[lvi] Exhibit 3. NDP India, 30 June 2021. Item 1.5 DFAT Country Information Report India. 

[lvii] Ibid.