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Right To Marry: A Fundamental Right

Authored by Shubhika Jain (Intern), a 2nd-year Law Student at Hidayatullah National Law University, Raipur

Right To Marry: A Fundamental Right
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Marriage is a cornerstone of societal structure in India, and it is strongly ingrained in the country's cultural past. It symbolises not just an emotional commitment but also a legal and social union of two people, complete with duties and advantages. One of the most important purposes of marriage is the continuation of the family lineage. The right to marry is not merely a topic of personal laws; it also has a constitutional basis. The Universal Declaration of Human Rights by the United Nations mentioned that men and women can marry each other without any restrictions due to religion, race, or nationality. They both are entitled to equal rights as to marriage, even during and after its dissolution. The European Convention on Human Rights section 12 also says that all men and women have the right to get married and start a family after they both have attained the legal age to get married.

Interpretation With Statues

India, as a diverse nation, has a variety of personal laws governing marriage based on religious and cultural distinctions. Forced marriage is explicitly prohibited by law, notwithstanding its various forms. In the Hindu Marriage Act, the legal age for a woman is 18 and for a man is 21 years, whereas in the Muslim Marriage Act and Christian marriage laws where, “The age of the Bride-groom must not be under twenty-one years and, the age of the Bride must not be under eighteen years.”. The constitution of India guarantees its citizens the right to freedom of conscience and free profession, practice, and propagation of religion. The Indian judiciary is the ultimate authority for interpreting and, on certain occasions, changing personal laws. Courts have interfered in circumstances where personal laws are deemed discriminatory or violate fundamental rights guaranteed by the Constitution, such as gender equality and the right to life.

Article 21 of The Constitution

Article 21 of the constitution guarantees its citizens the right to marry the person of one's choice. This privilege can only be taken away by the law, not by anyone else, not even by the person's family. "An intrinsic part of Article 21 of the Constitution would be the freedom of choice in marriage,". According to this article, the right to marry is a part of the right to life. The case of “Lata Singh v. State of Uttar Pradesh”, was the first case that gave attention to this problem. The Supreme Court, in this case, stated that the girl was major, she had the right to marry whomever she wanted, and no statute could prohibit an inter-caste marriage. The court also stated that societal norms should not obstruct a person’s life. Even the parents can cut off all ties but cannot threaten or instigate an act of violence. 

Cases On The Right To Marry

Shafin Jahan v. K.M. Ashokan

Popularly known as Hadiya’s and “love-jihad” case, it revolves around the concept of a woman’s right to choose her partner and inter-caste marriage. Hadiya Jahan, who was a Hindu by birth, converted her religion into Islam. She married Shafin Jahan, a Muslim man, at the age of 25. Her father found that her daughter was encouraged to convert her religion from Hindu to Muslim. The father filed a habeas corpus petition challenging the validity of his daughter's marriage on the grounds of misleading his daughter to convert her religion. The main issue of the case was whether any person has to get permission from their parents before their marriage if they both are, according to their personal laws, of appropriate age to get married. The high court stated that “marriage is a significant decision and must be taken along with the parents”. The Kerala High Court declares the marriage void. Disappointed by the judgement, Jahan approached the apex court. The court stated that Indian laws support the concept of inter-caste marriage (The Special Marriage Act, 1954). So, the apex court stated that their marriage was valid and she did not need any consent from her parents because she had attained the majority. 

Seema v. Ashwani Kumar

This case examined the importance of registration of marriage, which aimed at protecting women’s rights. Its main mechanism is to enhance accountability and transparency with marriage fraud, polygamy, etc. 

Shayara Bano v. Union of India

The Supreme Court stated that triple talaq was declared unconstitutional, and it emphasised the significance and need to protect the dignity of women.

Justice KS Puttaswamy (retd) and another V. Union of India and others

The court, in this case, stated that the right to privacy is protected as an intrinsic part of Article 21. “Justice D.Y Chandrachud delivered the majority opinion that the fundamental right to privacy involves three aspects 

  1. Informational privacy

  2. Privacy that involves the person

  3. Privacy of choice protects an individual autonomy over personal choices”.

Application of Fundamental Rights on Same-Sex Marriage

In the case of Navtej Singh Johar v. Union of India, 2018, the bench of 5 judges constituted in this landmark case where the Supreme Court decriminalised homosexuality by striking down section 377 of the Indian penal code, 1860. It not only violates Articles 14 or 15 but also 21. 

In the case of Supriyo Chakraborty v. Union of India, a bench of 5 judges was constituted where the court stated that there is no fundamental right to marry, but some aspects are located in Article 21 of the right to marry.  In this case, all the personal laws were challenged but the court only took the view of a special marriage act to avoid the conflict with the personal laws. It was their unanimous decision not to read the right to marry as a fundamental right for all persons, including heterosexual and non-heterosexual.” The recognition of same-sex marriage as a legal right can only be given by the parliament and not by the courts. With the aspect of choosing the partner, the court has developed a Revolutionary Interpretation from the Lata Singh case to the Shafin Jahan case. 

Solicitor General of India, Tushar Mehta, told the bench that there is a distinction between the right to marry and the right to choose a partner. He also said that, on the one hand, they don’t want the state to interfere in their relationships and on the other hand, they are compelling the court to recognise same-sex marriage. The Chief Justice of India said that same-sex relationships are not new to Indian culture. Furthermore, it was argued that same-sex marriage is a part of our culture, but in recent times, the right to marriage is connected with procreation, and the legislatures are related to that only. In the USA the case of Obergefell V. Hodges, 2015, the court stated that same-sex couples have a fundamental right to marry. 


The jurisprudence surrounding marriage in India has had many significant developments in recent years; there are landmark cases relating to inter-caste marriage. There is tension between individual rights and the family's authority; in the Hadiya case, the authority of families was diminished with concern for the marriage. The Supreme Court's involvement in upholding Hadiya's marriage without parental approval highlights the Indian judiciary's dedication to defending individual rights, even in the face of familial opposition.

The judiciary also played an important role in upholding the rights of women by striking down the triple talaq and emphasising the registration of marriage. the role of the judiciary and legislature was also in question the validity of same-sex marriage was to be recognised by the legislature and not the judiciary. 

Every individual has the right to marry. Marriage is the foundation and the most important structure of a family and other relations. The right to marry appears as an important string that connects individual preferences, cultural norms, and constitutional requirements. It exposes the enormous complexities of marriage and its numerous intersections with human rights and cultural expectations. The right to marriage is a union law even the states have a say in it. Personal laws prohibit marriage between some people. In India, where tradition and modernity coexist, the right to marry is a fundamental aspect of human independence. 

Cultural viewpoints also give insight into traditional customs and growing trends, reflecting the changing character of marriage in modern India. While ethnic variety enhances the nation's fabric, it necessitates a delicate balance of legal and societal harmony. Decisions in instances such as Sarla Mudgal v. Union of India and Joseph Shine v. Union of India demonstrate the court's appreciation of the need to balance cultural diversity with constitutional ideals, ensuring that personal laws do not serve as veils for regressive practices. India should provide its citizens with the exercise of fundamental rights without any fear or discrimination. The fundamental right to marriage for same-sex couples is very much needed in these modern times. Many countries in the world have provided legal status to them. As I conclude, the call for the harmonious symphony is a very much-needed synthesis of legal safeguards, cultural pluralism, societal acceptance, and, finally to ensure that the right to marry is a fundamental right of an individual and no one can take this right away from them.

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