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A Case For Recognising The Right To Marry As A Fundamental Right

Authored by Anshika Sah (Intern), a 2nd-year Law Student at Dr. Ram Manohar Lohiya National Law University, Lucknow

A Case For Recognising The Right To Marry As A Fundamental Right
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In India, the right to marry remains a contentious issue, particularly for couples whose narratives diverge from traditional norms. This blog post explores the ongoing debate in India regarding the fundamental status of the right to marry. While the Indian Constitution is silent on this right, the Supreme Court has issued various judgments highlighting its significance for individual autonomy and dignity. However, the recent Supriyo Chakraborty v. Union of India denied this right to fundamental status, raising concerns about its potential impact on interfaith/caste couples and the LGBTQ+ community. The blog argues for recognizing marriage as a fundamental right, emphasising its role in challenging discriminatory practices, and ensuring social acceptance for all individuals. It concludes by highlighting the need for concerted efforts and collective action to achieve marriage equality in India.


Love stories find a way, or so the cliche goes. But in India, where the social fabric is intricately woven with cultural norms and legal frameworks, these stories are trapped in a web of unanswered questions. This is particularly true for couples whose narrative doesn't neatly fit into the traditional box of marriage, highlighting the complex and often contentious debate surrounding the right to marry in India. The right to marry is a cornerstone of individual liberty and dignity. Yet, unlike many other fundamental rights enshrined in the Indian Constitution, this right finds no explicit mention. This silence leaves couples seeking legal recognition in limbo, stuck between personal choices and societal expectations. The recent Supreme Court decision in Supriyo Chakraborty v. Union of India reignited the debate. While the apex court unanimously agreed that the right to marry is not fundamental, the possibility of its future recognition remains. This blog delves into this intricate issue, exploring the current legal framework, arguments for and against its fundamental status, and potential paths forward. It also examines the ongoing debate, particularly considering the recent court ruling and its implications for different groups within Indian society.

The Evolving Nature of India’s Constitution and the Current Legal Position

The Indian Constitution is a living document, where some rights are explicitly listed while others have been acknowledged through judicial interpretation. These emerging rights like privacy, livelihood, and education, among others, are derived from broad readings of existing constitutional provisions. The Supreme Court has been shaping a progressive legal position in India, by a series of significant judicial rulings and interpretations, where it has consistently emphasised the fundamental nature of the right to marry a person of one’s choice. One of the first cases in this regard is Lata Singh v. Union of India of 2006, where the Supreme Court affirmed the freedom to choose one’s spouse regardless of caste, paving the way for subsequent legal developments. Justice Nariman's concurring opinion in Puttaswamy Case extended the right to privacy to encompass vital personal choices, including the right of same-sex couples to marry. Chief Justice Dipak Misra, in Shakti Vahini v. Union of India, underscored the inherent dignity in the ability of individuals to make their own choices, including the decision to marry freely, as protected under Articles 19 and 21 of the Constitution. The courts have affirmed that matters of belief and faith do not impede the absolute faith of individuals in choosing their life partners, with the right to marry being deemed integral to Article 21 of the Constitution. Building upon these precedents, the Court in Shafin Jahan v. K.M. Asokan declared that the right to marry a partner chosen by one is a fundamental aspect of Article 21. Following this decision, cases like Laxmibai Chandaragi B. v. State of Karnataka affirmed that this right is intrinsic to Article 21, reinforcing the principles set in the precedent.  

Furthermore, while Navtej Singh Johar case did not explicitly recognize a right to marry under the Constitution, it affirmed the right to a union that encompasses various aspects of companionship, in a manner that respects individual’s privacy and autonomy, under Article 21. Furthermore, India's commitment to international human rights standards, as outlined in the Universal Declaration of Human Rights (UDHR) Article 16 and the International Covenant on Civil and Political Rights (ICCPR) Article 23(2), underscores the recognition of the right to marry without discrimination or arbitrary restrictions.

However, in a surprising turn of events, the 2023 case of Supriyo Chakraborty marked a sharp shift in the trajectory of legal pronouncements. Despite the progressive precedents set in previous rulings, the Supreme Court, in this case, categorically held that the right to marry is not a fundamental right, claiming that the precedents dealt with the issue of restraints placed by society on the exercise of a person’s right to marry a person of a difference caste and religion and that it did not trace the right to marry to any of the entrenched fundamental rights, nor did it comment on the scope of such a right. This narrow line of interpretation is clearly inconsistent with previous judgements.

Why Marriage as a Right Deserves Fundamental Status 

This narrow interpretation of the court will have far-reaching implications. It can perpetuate discrimination against interfaith and inter-caste couples and leave LGBTQ+ individuals perpetually vulnerable, denying them the legal and social recognition that often accompanies marriage. By denying a fundamental right to marry, the court potentially opened the door for future restrictions on the freedom to choose a life partner for the LGBTQ+ community and heterosexual couples alike. This judgement created a sense of uncertainty for couples, particularly those facing societal pressure or disapproval based on factors like caste, religion, or socio-economic background. The court’s reasoning could potentially weaken the earlier progressive rulings that advocated for an individual’s autonomy and choice in marriage. This leaves room for future legal challenges, creating a situation where the freedom to marry hinges on social acceptance rather than individual autonomy.

Central to the arguments in favour of this fundamental status is the undeniable connection between marriage and individual autonomy. The choice of spouse is inextricably linked to a person's right to personal liberty and their ability to live life with dignity – principles deeply enshrined in the Indian Constitution. The State, by regulating marriage has sought to redefine heterosexual relationships by emphasising on the autonomy of both parties. Moreover, proponents argue that recognizing the right to marry as fundamental would provide a robust legal framework to challenge discriminatory laws and societal practices that restrict an individual's choice in marriage. This includes laws against interfaith and inter-caste marriages or societal pressures that ostracise individuals who defy traditional norms related to marriage.

Proponents who oppose classifying the right to marry as fundamental often cite concerns about potential conflicts with religious freedom and cultural traditions. Additionally, they believe that it could unnecessarily complicate existing marriage laws, which are already diverse and cater to various religious and personal practices within India. But the message it sends is one of potential vulnerabilities for the right to marry itself. Rights that are not considered fundamental are more susceptible to legislative and societal manipulation, which could create a chilling effect, potentially emboldening those who seek to restrict marriage based on their own ideologies or beliefs. 

Same-Sex Marriage Conundrum: A Lost Opportunity?

Supriyo Chakraborty v. Union of India dealt specifically with the denial of marriage registration to a same-sex couple. While the court’s narrow interpretation of the right to marry affects various groups, the decision has a particularly significant impact on the LGBTQ+ community. Prior to this, Cases like Navtej Singh Johar offered some hope for potential recognition of same-sex marriage. However, the recent judgement has set back the fight for marriage equality in India. The denial of a fundamental right to marry leaves same-sex couples facing significant challenges. They are denied access to legal benefits and protections associated with marriage, including adoption rights, inheritance rights, joint ownership of property, and hospital visitation rights. Therefore, access to the institution of marriage is crucial for “individual self-definition, autonomy, and the pursuit of happiness,” as these expressive and material benefits flow from marriage. Moreover, Marshall CJ’s observation that there are three partners in a civil marriage: two willing partners and an approving State, in Goodridge v. Department of Public Health, in a very real sense, underscores the state’s crucial role in validating marriages. Denying legal recognition perpetuates social stigma and discrimination, impacting their emotional well-being and social acceptance. However, despite the setback, the fight for marriage equality continues. 

Conclusion and the Way Forward

The right to marry in India remains a complex issue with an uncertain future, with the Supreme Court’s recent decision leaving its immediate recognition as a fundamental right in limbo. However, the ongoing debate highlights a growing societal shift towards inclusivity and individual liberty. The arguments for recognizing the right to marry as fundamental hold significant weight, emphasising the fundamental connection between marriage and individual dignity and autonomy. While the Supriyo Chakraborty judgement casts a temporary shadow, it also reignites the conversation, emphasising the need for a multi-pronged approach moving forward. This issue necessitates a commitment to open dialogue and inclusivity. It requires considering diverse perspectives and engaging in meaningful, active consultation with the stakeholders and experts. 

Securing this right requires a multi-pronged approach. Judicial activism can play a crucial role by exploring new legal arguments and pursuing future litigation to challenge the current interpretation. Simultaneously, advocating for legislation that explicitly recognizes this for all individuals remains essential. Additionally, exploring alternate legal pathways like civil unions offers a potential solution to provide some legal protections and recognition, while building momentum for full marriage equality. Moreover, collective action, including public education campaigns and collaboration among LGBTQ+ communities, human rights organisations, legal experts, and stakeholders, is vital to challenge societal prejudices, foster inclusivity, and empower affected communities to advocate for their rights.

The path to securing the right to marry for all in India may be challenging, but it is not impossible. Through continued dialogue, persistent advocacy, and a commitment to inclusivity, India can strive for a future where the right to marry is not just enshrined in law but also celebrated in society, ensuring that all individuals can build fulfilling lives with the dignity and recognition they deserve.

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