Author: Kachhwaha, Kavita
Date published: January 1, 2011
Journal code: IJCJ
In India, the Panchayati Raj system was introduced with the aim of decentralization and democratization. Yet, there remain certain mysteries. Khap Panchayats, the self proclaimed courts of caste lords in a village, enjoy "full legitimacy and authority" among the sections of their caste as "the custodians of honour" (Jaonne, 2009). Members of this unconstitutional, parallel system of 'justice' often summon an all-male get-together that crouches around a chabutara in the village (smoking hookah sometimes to symbolize brotherhood) aspiring of taking quick, unilateral and incontestable decisions on multiple issues like social transgressions, marriage, offences, property rights, inheritance, or regarding situations threatening tranquility in the village. These earlier days' credible bodies have now turned political. It is through them that "the most regressive social views" are sought to be implemented. Their gruesome message is that the caste-defined lakshman rekhas are not to be broken (Karat, 2004).
It is very distressing to note that in the times when people chat via 3G technology, Indian society has regressed to the Dark Ages. Today, where the societal norms are constantly changing; there is always a tiff between the ancient practices being followed and the modern liberal opinion of the youth ("Killed in the name of family honour!", n.d.). The honour of society is killed without a thought, in the pretext of age old beliefs which should have been extinct by now as they are inconsistent with our present day lifestyle. Indians have become members of a fragmented society. This is a different form of terrorism - a social terrorism. India doesn't seem superior to the Taliban.
Caste Panchayats: Incredibly Cruel and Undemocratic Parallel System
Definition and Jurisdiction
"Panchayat literally means assembly (yat) of five (panch) prudent and respected elders chosen and accepted by the village community." Usually, some mighty and powerful persons, with the coerced public consensus and without any election, group together and declare themselves 'the King of the caste', thereby constituting the so called "Caste Panchayats." Traditionally, these assemblies settled disputes between individuals in villages. However, these bodies lack any constitutional or legal basis. They should not be confused with the Panchayati Raj institutions. "Caste panchayats function as a parallel system, and elected panchayats are either subordinated to or co-opted by them" (Mullick & Raaj, 2007). They are undemocratic in origin. Without application of law and acting on their whims and wishes, they impose self-created norms backed by the sanction in the name of preserving morals and values of the society.
Caste Panchayats are generally classified on the basis of their territorial jurisdiction. When people of a community residing in more than one villages of Patwari level are headed by the Panchas, it forms Kheda. It occupies the lowest position in the hierarchy. When people of a community from villages of Revenue Inspector level are brought under one head, it forms Patti. Patti, further, has two kinds - ChehPatti and BaarahPatti. The latter has wider territorial jurisdiction. Simply, more is the number of villages under the judicature of a Caste Panchayat, the greater is the strictness observed in imposing its decisions and, thus, the higher is the punishment in case of defiance. There is also a provision for appeal. In case of appeal, the decision of Maha Panchayat is concluding and unquestionable.
Their Role: Past Perfect, Present Tense
Khap Panchayats were primarily called upon by the affluent and upper caste people who desired to consolidate their power and position way back in 14th century India. Writs were enforced by panchayats which were often upheld by the villagers and included social boycotts, fines, forced suicides or like. Gradually, these autocratic bodies began to show their presence in every caste. Today the caste panchayats have been highly politicized. Vested interests and musclemen are holding influence (Joseph, 2010). Member of Parliaments' (MPs) like Naveen Jindal and Chautala who pretend to take these khaps seriously, actually supports them (Jalpark, 2010). These Kangaroo Courts function in inhumane, illegal and arbitrary manner. They have become highly male-dominated.
Many assert that these khap panchayats were performing in a very positive manner in past and judgments given by them were for the betterment of the society. If one supports this constructive approach of the past, a question naturally arises: why the same caste panchayats are giving such regressive judgments now? In spite of being illegal bodies, they are functioning openly and violating law and order of the country. From where are they deriving so much of power? Why they are not scared of police and law? We cannot forget our past while living in the present. But while doing so, we should be governed by reason. There has to be an end to a blatant violation of the basic rights of the people sanctified by the law of the land. However, strangely, these Khap Panchayats are rearing their ugly heads in the 21st century with the government not doing too much to curb the menace, which threatens to escalate beyond any sort of logic behind it.
Mode of Operation: The Killer Machines
Since time back, the existence of Khap Panchayats has been justified in the name of preserving the honour and values of the community and to uphold the sanctity of agelong customs and practices by regulating the conduct of people. These panchayats follows a certain 'code' which is an unwritten law for them, through which they save and defend their 'honour' and in the process going to the extent of murdering people for the sake of this 'honour', with the sanction of their whole community. 'Honour' here revolves around the "public perception of the individuals" more than their real behaviour. ("Anatomy of honour based violence", n.d.) "They are perpetrating injustice in the name of Sharia, Gotra and on the pretext of preserving tradition and culture" (Kumar, 2007). Atrocities inflicted by these killer machines are flagrant (Jalpark, 2010). Numerous cases have come up in the recent times. For illustration:
* Self proclaimed Judges put oil in a pot and boil it. A coin is placed into it. The accused is asked to take out the coin from the boiling oil. He/she is considered innocent if managed to do so. This is Dheej custom ("Kanuni daanvpencho ke dar se kayam sadivasi adaalate", 1999).
* An iron stick is heated red hot. The palms of the accused are smeared with turmeric and seven leaves of Peepal are tied on them by a weak thread. The red hot stick is kept on it and the accused is asked to walk seven steps carrying the stick in his hands. If the palms do not burn or no red sensations appear on them, he/she is presumed innocent. This practice is usually followed where the character of the accused is questioned ("Kalyug mei di sita ne agni pariksha", 2002).
* The guilt of a woman is judged by forcing her to fry 'Puris' bare handed in the boiling oil in the cauldron. If her hands burn, she is declared guilty ("Ve har saal deti hai agni pariksha", 2002).
* Many a times, barbaric ways are adopted. Either ear or nose of the accused is chopped off. Sometimes his hair is cut, face is polished black and he is made to ride over donkey in the whole village or is forced to run naked and bare footed ("Jati pancho se aatankit vyakti ki SP se guhar", 2000).
* The accused is made to carry heavy weight and stand with it for a prescribed time in scorching sunlight.
* The Panchas declare poor widows/women, a demon, usually because of their looks.
* Sometimes the land of the accused is seized and forcibly taken away from his possession ("Pancho ke fer mei dhan gaya, jamin gayi aur izzat bhi!", 1998).
* Huge fines and penalties are imposed.
* Couples are forced to for divorce without any cogent reasons and are sometimes remarried against their wishes ("Pancho par jabran talak karne ka aarop, vivahit joda farar", 1996).
* The family of the accused is ex-communicated. This result in tremendous mental agony and humiliation ("Bal vivah ka virodh kiya to hukka pani se gaye", 2003).
Honour Killings or Killing the Honour!
Honour-killing is the murder of a family or clan member by one or more members of the family for imputing stain on the honour of family or clan. The reasons could be refusal to enter into an arranged marriage, being a victim of sexual assault, allegedly committing adultery or being involved with someone from another caste etc. The number of such incidents is constantly rising in national as well as at global level. "Khap panchayat's behaviour has moved from the ridiculous to the outrageous" (Jalpark, 2010). The law treats honour killing as "homicide" and murder (Justice Mazida Rizivi: Treat honour killing as homicide, n.d.). The honour crime also violates Article 14, 15 (1) & (3) 19, 21 and 39 (f) of the Constitution of India. It is against various international commitments of India. It is against the spirit of the UDHR and ICCPR. Shamefully, even today there is no legal definition of honour crime in India. In the Indian Penal Code, penalties for such crime find ground in sections 299-304, 307, 308, 120A and B, 107-116, 34 and 35. However, this huge number of penal provisions has proved inefficient to deal with this social evil. The perpetrators more often get away with murder, torture and violation of laws. And they continue to commit them with impunity (Rajalakshmi, 2009). Strangely, the National Crime Records Bureau does not collect separate data on honour killings. The extent of the crime is undervalued. It is made invisible and victimized people just disappear without a trace as though they had never lived (Negi, 2010).
Honour killings or horror killings- they are just one of many crimes born out of unholy traditions which survive on the blood of the innocent. Anyone who isn't outraged by honour killings needs to have their head examined. What gives a small vocal minority the right to hold the rest of the country to ransom? "What is this 'honour' which these Caste Panchayats try to 'save' and what is so imperative in this honour that they brazenly claim pride for? And what on earth gets them into such acts of frenzy- killing people- in order to defend this honour?" (Moggallan, 2009). Are these killings really for the honour or the ego? Aren't they in the name of just a community which is trying to prove its social dominance? "It's a matter of disgrace that in the world's largest democracy, a rightful and legal citizen of the country is still devoid of the privilege to exercise his/her fundamental rights" (Kohli, 2010). The continuance of such practices is not at all honourable. It is a blot on Indian social values and tradition. Indian culture can never be a culture of crimes.
Realizing the extent and frequency of the malpractices and atrocities inflicted by the Taliban-styled caste courts, several remarkable developments have taken place in India.
* In Smt. Laxmi Kachhwaha vs. The state of Rajasthan (1999) a Public Interest Litigation (PIL) was filed in the Rajasthan High Court, drawing the attention of the Court to illegal regimes of Caste Panchayats 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 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.
* For implementing this order, strict guidelines were issued by the Rajasthan State Human Rights Commission, in its communication letter (No.P6 (69) nodal/state government/circular/2000/2102-2140 dated April 27, 2001), to the higher police authorities of the state. It directed the administration to collect the record of the Panchas participating in the illegal Khap panchayats and to proceed against them under the National Safety Laws. The names of such persons should be enlisted in the Black list and made available to the district administration to ensure that they remain devoid of governmental amenities and other benefits.
* Responding to a complaint and report placed before the Commission by the Chief Secretary, Government of Rajasthan, National Human Rights Commission (Law Division) in its communication letter (No. 20/52B/96-LD dated February 25, 2000) questioned the extent to which the executive part of the government had come up to fulfill its duties regarding the stoppage of such social evils and protection of people from their consequences. It expressed that concerned local officials should be taken to task for not properly bringing it to the notice of Government for taking appropriate action.
* In State of UP vs. Krishna Master (2010) our 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 [principle] evolved by this court..." This was reiterated in Bhagwan Das vs. State (Nct) of Delhi (2011) where the Apex Court opined that "all persons who are planning to perpetrate 'honour' killings should know that the gallows await them."
* Five of the seven convicts in iniquitous Manoj-Babli murder case were sentenced to life imprisonment by the Punjab and Haryana High Court. The Court also ordered action against the police officers who delayed the case ("Manoj-Babli case", n.d.).
* Going pragmatic, in Sujit Kumar vs. State of UP (2011) the Allahabad High Court noted that in our secular and liberal country "what is extremely disturbing is that the police and other authorities do not seem to take steps to check these disgraceful and barbaric acts." Such 'pre-meditated murder' must be treated accordingly. In Madhu Priya Singh vs. State of UP (2004) the Court sadly stated that even when reported to them the authorities seldom take any action in the matter and thereby they abdicate their duty to uphold the law.
* On June 23, 2008 Justice K.S. Ahluwalia of the Punjab and Haryana High Court made a revealing observation while concurrently hearing ten cases pertaining to inter-caste marriages: "The Court is flooded with petitions where ... judges of this Court have to answer for the right of life and liberty to married couples. The State is a mute spectator. When shall the State awake from its slumber [and] for how long can Courts provide solace and balm by disposing of such cases?" (Sangwan, 2010).
* In the renowned case of Armugam Servai vs. State of Tamil Nadu (2011) the Apex Court interpreted law on this matter of public concern, as: "once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such marriage the maximum they can do is that they can cut off social relations, but they cannot give threats or commit or instigate acts of violence and cannot harass the person." The Court observed that Khap Panchayats often decree or encourage honour killings or other atrocities in an institutionalized way on such boys and girls, who wish to get married or have been married, or interfere with the personal lives of people. This is wholly illegal and has to be ruthlessly stamped out.
* The Court sternly directed the administration and police authorities throughout the country to see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major; the couple are not harassed by anyone nor subjected to threats or acts of violence. If anyone does so, he is taken to task by instituting criminal proceedings and stern action is taken in accordance with law. Apart from this, the State Government is required to immediately suspend the District Magistrate/Collector and SSP/Sub-inspector of Polices of the district as well as other officials concerned and charge-sheet them and proceed against them departmentally if they do not (1) prevent the incident if it has not already occurred but they have knowledge of it in advance, or (2) if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them, as in the Court's opinion they will be deemed to be directly or indirectly accountable in this connection.
* Tracing the lines of judicial activism, our Courts seem determined to curb this social evil. In many cases viz. Geeta Sabharwal vs. State of Haryana (2008), Diwan N Mahemadsha vs. State of Gujarat (2011), Asari Manishaben Jivabhai vs. State of Gujarat (2011), Asmitaben vs. State of Gujarat (2011) etc. The police protection was provided to the couples who were major and faced threats from their family. Bails were also refused in cases of honour killing (Ramjee Yadav vs. State of Bihar, 2010).
* Moving this saga forward, the Central Government has made its view clear that it is coming out with a new legislation. Under the proposed law, members of the khap panchayats or the victim(s)' families, if their action results in the death of the person or persons who they feel went against the tradition or the wishes of the khap, will be punishable with the sentence of death or life imprisonment. In such cases, the entire panchayat will be held responsible. More importantly, the proposed law puts the burden of proof on the accused.
* For this purpose, the draft bill intends to append a new clause to Section 300 of the IPC. It also intends to amend the Indian Evidence Act and the Special Marriages Act, 1954, which would eliminate the provision for the mandatory 30 day notice period for marriages intended to be solemnized under the Act. The new bill is also expected to introduce a definition of honour killing for treating it as special crime and ensuring clarity for the law enforcement agencies ("Central plans to toughen the law on khap panchayat", 2010).
* Shocked by the growing cult of "honour killings" and swiftly dispersing roots of Khap Panchayats across the country, the Law Commission of India has also proposed legislation namely 'the Endangerment of Life and Liberty (Protection, Prosecution and other measures) Act, 2011, to prosecute persons or a group involved in such endangering conduct and activities. Innovatively, it bars the convicted people from contesting in polls (Venkatesan, 2011).
However, it is distressing to note that in spite of such encouraging notes, the evil has not been checked efficiently. Some learned people and politicians wondered if it is necessary to do so at all! (Venkatsubramanian, 2010). In reality, the system itself supports the barbarism. Since these self-styled Panchas keep terms with the police authorities, the administration often shares the concept of (dis)honour and it becomes extremely difficult to even get a case registered. Political favours for the purpose of vote bank further strengthen such undemocratic bodies. The law has failed tremendously in curbing such nasty practices. Although, the judiciary has played an active role, yet there were instances in the past where Court orders have been ignored and protested against.
Isn't It Indian Talibanism?
India is identified for its rich culture and traditions across the globe. "But it has been failed to realize that one cannot oppress and impose in the name of customs and traditions. Being a secular and a democratic nation, it has to be instilled (by force, if the occasion calls for it) to honour, respect and change with times" ("Killed in the name of family honour!", n.d.). Khap Panchayats, the ancient upholders of caste norms have been in the news for all the bad reasons. These bodies have been asserting the values of the past, gone by era and stand in the way of the values of Indian Constitution- liberty equality and fraternity (Puniyani, 2010). Most Panchas are pig-ignorant peasants: men whose minds are darker than the bottom of the village well and replete with feudal beliefs that haven't been reexamined for centuries; men who believe their honour resides not in their own exemplary conduct but in their wife's crotch (Dhillon, n.d., para 3). These rigid people are acting like the Taliban: always do the inhuman activities, but call them the saviour of their tradition and culture. For them caste and gotra are more important than human's life. They are opposed to progressive, non-stratified and open and equal society (Saggoo, 2010; Ray, 2010).
Aptly observed in Madhu Priya Singh v. State of UP, (2004) "whatever may have been the utility of the caste system at a certain stage of our historical and social development; there can be no manner of doubt that it is today a great evil and a curse on our society. In fact it is an obstacle to our nation's progress, and if we wish to progress it must be destroyed as quickly as possible, so that we really become Indians rather than remain as Pandits, Thakurs, Yadavs, Jatavs, Harijans, Sheikhs etc. This is a free, democratic and secular country. Our national aim must be to become a modern, powerful industrial State". In Lata Singh v. State of UP (2006) Justice Markandey Katju observed that "the caste system is acting as a powerful social and political divisive force at a time when it is essential for us to stay united in order to face the challenges before our nation." He further added in G Krishnan vs. UOI (2005) that "the caste system is an outdated feudal institution which has weakened our country. The sooner it is done away with the better."
Certainly, Khaps have divided the Indian society, especially the North Indian society. People are shackled by their terror. The merciless methods adopted by these judges for meting out justice are excruciating today when human rights are the inalienable rights; when right to life also means life of dignity and freedom; when equality and justice are prime virtues; when rule of law is the supreme. As India tries to fly high with its nuclear deals, claims to a UNSC permanent seat, condemns human rights abuses across the globe etc., Such reprehensible events will only deal a blow to its international image. 'Honour killings' are murders, human rights abuses, atrocities against women, denial of an individual's freedom of choice, and a display of the failure of the law and order situation in the country (Kulkarni, 2010). India cannot claim to be a democracy if it cannot secure its citizen their fundamental rights to live on their own terms guaranteed under Article 21 of the Constitution. "There is nothing honourable in such practices, and in fact they are barbaric and shameful acts committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism" (Lata Singh vs. State of UP, 2006).
The way forward
In order to eradicate this social evil, it is vital to understand what holds this archaic set of laws together with set of modern and formal institutions like Panchayati Raj, Judiciary, Police and the larger State. This is the country where Article 14 of the Constitution has ordained equal rights and opportunities to all its citizens regardless of caste, religion or any other such distinct identity. Inspired by the constitutional spirit and international commitments of the country, our judiciary has shown remarkable activism. The Union Cabinet also confabulated to bring forward a comprehensive legislation to deter such attempts in future. Nevertheless, learned people like Kamal Nath, Gill and Kapil Sibal wondered if it is necessary to enact such a law at all (Venkatsubramanian, 2010). An encouraging role of the state has come to light. However, the rapidly rising terror of undeterred Khap Panchayats' illegal diktats reflects our failure. As noted before, the reason is simple. Even the law enforcement agencies strike a conciliatory note as there is hardly any case reported or action taken against these perpetrators of injustice (Kumar, 2007). Police and political figures have their vested interests in its continuance.
Traditionally, caste panchayats have played a powerful role. As they are not elected bodies, their decisions are not enforceable by law but their terror will continue unless they are banned. In a recent verdict the Delhi High Court made clear that "Constitutional morality trumps public morality" (Naz Foundation vs. Govt. of NCT of Delhi, 2009). Since the Constitution forms the bedrock of India, the only possible solution is to banish the khaps from India. If the khaps object to freedom of people, let them utilize some nice peaceful form of protest. If they threaten brutality, they require to be put down (Arya, 2004). There is nothing honourable in the killings or inflicting violence on the innocent people. It is imperative to punish the responsible people harshly in order to prevent cultural and religious practices that are derogatory in nature and violate human rights and dignity.
In the light of the above discussion, the following suggestions are submitted:
* Central and State governments should come up with efficient mechanism to sincerely implement the directions issued in Lata Singh vs. State of UP (2006) and Armugam Servai vs. State of Tamil Nadu (2011).
* Indian Parliament is required to enact a new legislation at the earliest for curbing the malpractices of and the very existence of unconstitutional khap panchayats.
* Anyone convicted under such law, irrespective of the quantum of punishment, should be debarred from contesting any election (even at any local authority) for five years. Participation in Khap congregations should attract a prison term.
* The administration should come up with various help lines numbers and special cell where such couples can approach for protection.
* Fast track courts should be constituted for handling cases of honour killings.
* Amendment in the Special Marriage Act should be done to reduce the period of registration of marriage from one month to one week.
* Amendment in the Indian Evidence Act should be made to shift the burden of proof on accused, thereby making him responsible to prove his innocence in the event of honour killing.
* Amendment in the Indian Penal Code should be made to insert a new section for defining the crime of honour killing and prescribing punishment for the same. The idea behind this is to widen the ambit of the existing provision (Section 300 of IPC) so as to include even those cases where death is caused indirectly as a result of instigation from harassment or cruelty. The new provision may be as follows:
Section 300A Honour Killing- (1) Where the death of a person is caused by any bodily injury or occurs otherwise under normal circumstances and it is shown that soon before his death he was subjected to harassment or cruelty by members of a Khap Panchayat or any relative of his for the reasons justified as bringing dishonor to the family or community, with a motive to preserve the tradition or culture or societal norms and/or to defend the honour of the community, such death shall be called 'honour killing' and such members of the Khap Panchayat or relative shall be deemed to have caused his death.
(2) Whoever commits honour killing shall be punished with death or imprisonment for life, and shall also be liable to fine.
Thus, an inclusive struggle based on a four-pronged democratic agenda is the need of the hour. Forcing the political structure of the legislature, which is "evading these social questions very astutely", to take up this matter, is the prime. The second task is at the level of the executive. The failure to implement the rule of law does amount to a wilful abdication of duty of the executive officers. "Why do not they provide security to the aggrieved despite their being in full know of it? The excuse that the victim has not made any written formal complaint is frivolous. It is ridiculous to expect an FIR from a person whose very life is in danger. Are not the officers in whose jurisdiction unlawful village panchayats are held answerable for dereliction of duty?" (Singh, 2004). The third aspect is of the judiciary. Although it has done extraordinary, however we can't ignore the fact that caste panchayats are robustly defying the directions. The courts should take suo moto cognizance in grave matters raised by the media and punish such barbaric judges stringently. The fourth and most crucial aspect is of social intervention. It is this effective intervention, which will ensure that the above-stated three aspects also work (Bedi, 2010). This deep-rooted and thriving Cactus's destruction requires people to wake up. They should stop following the irrational norms laid down by Panchas. Education and awareness of the people are very necessary. India is a country which has great potential - where its population can actually be demographic dividend instead of a social evil.
The medieval justice system is still prevalent despite India is boasting a modern, independent and pro-active judiciary and law-enforcement system. It is very unfortunate that the caste system in India has turned out to be a social evil for many. "No doubt, religious freedom, cultural rights and practices are justified and recognized by the law. However, these rights are not absolute and cannot be used to commit crimes against humanity. India has to clean up its act and take action to end this brutal system no matter how politically susceptible it is. It would be hypocritical to imagine that the world would sit by and ignore for too long the frequency of such dreadful acts of Khap Panchayats. It is essential for the law enforcement agencies to prevent cultural and religious practices that are derogatory in nature and violate human rights and dignity" (Kumar, 2007).
Thus, as discussed above, adoption of stringent legal measures is the need of the hour. However, that alone will not suffice. The reason is: Attitude. "Cemented over the centuries by the feudal and patriarchal set-up, changing the mindset of the people today is tougher than the toughest thing in the world" (Kulkarni, 2010). A new law or a provision in Indian Penal Code might ban Khap panchayats or make honour crimes a non-bailable offence punishable with death penalty; but such awful practices will continue to prevail until we convince people, be it the illiterate village folk or the highly educated urban dwellers, that what they are doing is a sin and an immoral and illegal act. "It has become crucial to redefine the concept of honour within the community" (Pervizat, 2003). Until a society has justice, equality and fairness as its core values, it cannot get beyond a Hobbesian existence (Dey, 2005). Therefore, in addition to other effective way-outs, the government and social organizations would have to resort to changing the mindset of people. It is more than a law and order problem; it is a social evil! Perambulation at the grass root level is equally important.
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Dr. Ram Manohar Lohiya National Law University, Lucknow, India
1 Undergraduate in Law, IV year - B.A. LL.B. (Hons.) Dr. Ram Manohar Lohiya National Law University, Sec- D1, LDA Colony, Kanpur Road Scheme, Lucknow - 226012, Uttar Pradesh, India. Email: firstname.lastname@example.org