Whether the Right to Marry is a Fundamental Right in India?

“The three most important events of human life are equally devoid of reason: birth, marriage, and death”

Austin O’Malley

Introduction

As per the United Nations Universal Declaration of Human Rights, the Right to Marriage and Family is one of the most essential rights stated there. It says that the men and women of full age, irrespective of race, nationality, or religion, have the full right to marry and they have equal rights as to marriage, during marriage and after the dissolution of the marriage. Also, it is mentioned in the same right that the marriage should only be entered with the full and free consent of the intending spouses. Thus, marriage is a universal social institution that has been formed to control and regulate the life of a man. 

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The same Right to Marriage is enshrined under Article 21 of the Indian Constitution as a part of the right to life and personal liberty. The Supreme Court, through its various judgments, have time and again acted as the defender and protector of the social institution of marriage but the recent trends which can be seen in the Indian Society are that the marriage between two consenting adults is being interfered with by various factors like the family members, caste, race, religion, etc. which have led to the violation of this very right to marry.

Why is ‘Right to Marry’ a Current Topic of Debate?

Right to Marry is currently the most debatable topic in India since there have been various cases that have caught the attention of the citizens of India and the judgments given by the Courts have made the people question the status of ‘Right to Marry’, a fundamental right enshrined in Article 21 of the Indian Constitution and that too especially in cases of women.

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The Right to Marry came into the limelight after the Government of Uttar Pradesh passed a law popularly known as the ‘love jihad’ law which declares the religious conversion for the sole purpose of marriage null and void and is punishable with imprisonment. Other state governments like Madhya Pradesh, Karnataka, Assam, and Himachal Pradesh are also working on the same.

As the state governments are framing these laws, a question or an issue arises here which is “Whether such laws are valid in respect to the Fundamental Right to Marry?”

As per The Supreme Court in the 2017 Privacy Judgement, it was held that the right to privacy includes the right to make intimate decisions relating to one’s personal life including the right to marry, the right to have relationships, the right to have children and the right to one’s faith, without interference from the State but soon thereafter came the well-known Hadiya Case in 2018 where the allegations of ‘love jihad’ were made out.

Love Jihad: An Overview of the Dispute

In this case, Hadiya Jahan (originally Akhila Ashokan) converted to Islam during her medical studies in Coimbatore. She, then, met a Muslim man named Shafin Jahan and they got married when she was 25 years old. When Mr. K.M. Ashokan found out about her daughter’s marriage with Shafin Jahan and that she has converted her religion to Islam, he filed a writ petition in the Kerala High Court where he alleged that Hadiya has been misled and has been forced to convert to a Muslim. In Hadiya’s statements, she stated that her conversion to Islam and marriage to Shafin Jahan were her own choice and she was not forced.

The Kerala High Court in this case annulled their marriage and called it a ‘sham’. The custody of Hadiya was given to her father even though she was an adult and did not consent to parent custody. The Court also stated that the decision of marriage is an important one and thus should have the active involvement of her parents.

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Aggrieved by this decision, Hadiya’s husband Shafin Jahan filed an SLP in the Supreme Court where the Court set aside the annulment of their marriage and also held that the Kerala High Court couldn’t use Article 226 to annul marriage of an adult. They upheld the “right of an individual to marry and choose a life partner and this cannot be affected by matters of faith and is a constitutional and a fundamental right.”

The Supreme Court’s Decision in Shakti Vahini 

The Supreme Court in 2018 gave a landmark judgment in the Shakti Vahini case where they held that any attempt made by the Khap Panchayat or any other assembly cannot prevent two consenting adults from marrying and it is illegal and lays down preventive, remedial, and punitive measures in this regard and thus a law should be made in regards to the prohibition of honor killing.

This case went to the Supreme Court when Shakti Vahini, an NGO, filed a writ petition in the year 2010. The petitioners sought directions to be given to the center and the states to look into the issue of ‘honor killings’ and curb them and again upheld the right of an individual to marry and choose any life partner irrespective of any caste, race, religion, etc.

Allahabad High Court’s Decision in Salamat Ansari and Ors. v. State of UP

The Allahabad High Court gave a historic decision in the case of Salamat Ansari and Ors. v. State of UP where they upheld the right of an individual to live with a person of his/her choice irrespective of religion professed by them and thus it is an intrinsic part of Right to life and personal liberty enshrined in Article 21 of the Indian Constitution.

The Court also ruled out the decision or the judgments laid down in the cases of Priyanshi @ Km. Shamren and others v. the State of U.P. and Another; and, Smt Noor Jahan Begum @ Anjali Mishra and Another v. State of U.P. and others stating that they didn’t lay down a good law since the decisions in these cases did not take into consideration the right to marry as a right enshrined under Article 21.

Karnataka High Court’s Decision in Wajeed Khan v. Commissioner of Police

After the significant judgment of the Allahabad High Court, the Karnataka High Court in the case of Wajeed Khan v. Commr. of Police also recently gave a historic judgment and upheld the right to marry as a fundamental right as an intrinsic part of the right to life and liberty enshrined under Article 21. The Court also stated that the right cannot be encroached by anybody irrespective of caste and religion.

The High Court division bench comprising Justices S Sujata and Sachin Shankar Magadum gave the ruling. The decision is an important one since it is pronounced in the backdrop of the ‘love jihad’ law being introduced by the Karnataka Government.

Conclusion

In sum, from the above cases, the Judiciary has made it clear that the right of an individual to marry a person of his or her choice irrespective of any caste, race, religion, etc. is a fundamental right and is also considered an important part of Article 21 which is the Right to life and personal liberty. This right cannot be encroached on or interfered with by anybody whether it is the families or the Khap Panchayat.

Thus, I believe that the law being framed regarding the conversion are unconstitutional and also would be very difficult to enforce since it would not be easy to determine whether the conversion was done for marriage or any other reason and thus, to curb such conversion being done, the parliament, as well as the judiciary, should evolve some other way which does not violate an individual’s right to marry.


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