Evolution of the “Right to Marry” in India

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Marriage is not about right age, it’s about finding the right person – Sophia Bush

An age-old tradition, which is followed in almost every society in the world, is marriage. Any holy text or testament, gives a little or big mention to marriage. As per sociological aspects, marriage is one of the most important social institutions of any society because it leads to the creation of family, which in turn is the basic unit of any society. As per the Indian society a marriage is said to be, not a connection between two people but a tie between two families. Due to this reason, the choice as to whom to marry, often gets subjected to a lot of restrictions and conditions, which are backed not by legal but social sanctions even in the 21st century, when we have come so far in every field of life possible.

Marriage

Marriage is a social and a legal union which has an objective of cohabitation and procreation. From traditional societies, where Brahma marriages were considered as the most auspicious form of marriage, to the 21st century, where at times even the live in relationships are recognized by the court of law, to be in the nature of marriage. Since marriage is a lifelong union, the mutual consent of the parties becomes very important. Therefore, in any personal law if a marriage is conducted under coercion and duress, it is considered invalid. With the concept of mutual consent, comes in the concept of the parties having the discretion of whom to marry or overall having a right to marry. Article 16 of the universal declaration of human rights, talks about the right a person holds to marry. Right to marry, is nowhere expressly written in part 3 of the constitution, which talks about the fundamental rights, but it is drawn from the right of choice which is a part of the right to life, mentioned in article 21. Before, understanding the statues and provisions of any territory, it is very important to be aware of the kind of society one lives in and the kind of problems that are faced by the people in the society. Dr. Bhim Rao Ambedkar had once said, that “I see the progress of the society with the progress of the woman”. Quite often, this right to marry is overshadowed by the caste and religion inequalities or some other issues, but, since it is one of the most important human rights, the courts try to uphold the same every time.

Right to marry vis-à-vis Right to Health and Right to Privacy

One of the very first issues with the right to marriage came up in the case of Mr. X v. hospital Z[1].  As per this case, the appellant’s blood test revealed that he is HIV +. Such information is considered sensitive. The same was revealed by the hospital where the test was conducted, to Ms.Y to whom Mr. X was supposed to marry and the marriage of the appellant was called off. This news got spread among the members of his family as well as his community, which was a great cause of humiliation for him. It was argued from the appellant’s side that there was duty of care on behalf of the doctor which includes maintenance of the confidentiality of the patient. Section 20 and section 33 of the Medical Councils Act of India, talks about the professional conduct of the doctors, which says, the secrecy regarding patient’s information has to be maintained. But here, the secrecy of the information of the patient being an HIV positive patient, became a matter of public interest.

The court emphasized that the medical act of Great Britain on HIV Aids, said that doctors do have the duty to maintain the confidentiality but in cases where the revelation of the information is important for their own safety as well as if they feel that there can be health risks to a specific person such as the sexual partner then the same can be revealed. Here, the appellant’s condition if, was not informed to the Ms. Y, then her life was at risk as HIV aids is a sexually transmitted disease. Now, whether the right to privacy was invaded or not? Then the right to privacy is a part of the right to life. Like any other fundamental right, right to marry cannot be an absolute right.

If Ms. Y would not have been informed, her life and health would have been at risk, if there would have been a consummation of their marriage. Every right has reasonable restrictions, therefore, in cases where public interest is at risk the right to privacy can be put on hold. Here, the right to privacy in this case which arose out of a relationship between the doctor and the patient, then the same was restricted on the ground that Ms. Y had to be informed or greater public interest would have been at risk. Health of both the individuals as a concept is given primacy in marriage. The transmission of a venereal disease has been laid down as a ground for divorce. Here, hospital Z was been held liable by the appellant as they disclosed a sensitive information which led to his marriage been called off but if not informed, Ms. Y’s health would have been seriously affected.

The hospital considered it as a matter of importance and safety, thus revealed it. It was contended by the appellant, that the he is having a right to marry, like any other man or woman, and such a disclosure of information puts an impediment on the right, but it needs to be observed that since the right to marry is a “right”, it comes with a duty, which is to inform the other party about any of such diseases if the person is suffering from the same. As we know rights and duties go hand in hand, if a person has to exercise the right to marry, they have a duty of duly informing the person, about any such sensitive issue which holds the capacity to affect their life and health.  Here, the right to privacy and right to marry was balanced out with another right, which was the right of a healthy life. When the courts weighed both of them, it was held that here the right to a healthy life had to upheld.

But it did not stop here. The supreme court had realized that a mistake has being committed in passing the judgement and then again it was overruled in the judgement of Mr. X v. hospital Z[2] in 2002. The courts here said that, even a person suffering from HIV aids has the right to marry, but the same cannot be done without informing the other party about the same. Earlier on the grounds of the Right to health, it was said by the court that they can’t marry. In the overruling judgement the court said that, they can marry only when they have communicated about the disease to spouse as they have a right to know about the same on the grounds of their right to lead a healthy life. So, earlier where the right to marry of an HIV positive person was curtailed completely, in the later judgement, the court barred the party from marrying only if they have not communicated about the disease. If they have done the same, and the other party has accepted, then there will be no bar to marriage. These two series of judgements stand together as landmark judgements.

Right to marry as a Right of Choice

Another issue which is quite often faced by people, is whether they have the right to marry a person of their choice or not. This has been solidified by the courts in a number of cases that, every person, of whichever caste, class, creed, sex or religion they belong to, they have the choice to decide whom they want to spend their life wit. In the case of Lata Singh v. State of Uttar Pradesh[3], the petitioner’s husband was actually being harassed by petitioner’s brother just because they had an inter-caste marriage and had a child with him.  It was reported that the petitioner’s brother had beaten, her mother-in-law and her husband’s uncle and even locked one of her husband’s brothers without meal and water. They had even cut all their crops. The petitioner’s brothers had threatened to kill and kidnap her as well as her husband and his family. Ultimately, she reached out the Rajasthan women’s commission and then the matter reached the court. The court upheld that the petitioner had the right to marry whoever she wants to and, no inequalities of caste or religion will stop them from doing so as, inter-caste marriages are not prohibited by Hindu marriage act or any law.

The court also highlighted, how problematic the issues are, as even in the 21st century, people have to face such issues, which arise out of the status of the person. The court during the judgement highlighted the importance of inter-caste marriages, as how they help in breaking the shackles of the caste rigid society. Later, in the case of K.S Puttuswamy v Union of India[4], it was concluded by a majority opinion that the right to privacy also includes once right to marry, procreation as well as the choice of sexual orientation.

After this, a famous case of Shakti Vahini v. Union of India[5], came up in which the court said that the right to choose one’s partner is a part of the right to life. Another such issue came up, in the judgement of Shafin Jahan v. Ashokan K.M[6], where the girl had married a man of another faith, and it was not appreciated by her father.  It was held by her father the she has been coerced into the marriage and conversion. Although, the same was refuted by the girl and she said that she has married as per her will and choice. The Kerala high court had disregarded her marriage and considered it invalid. This was overturned by the Supreme court, which said, every person has the right to marry whoever they want to. The family may not appreciate the same, but the people have the right. The supreme court had said that right to marry will be an integral part of the right to life.

Right to marry and Homosexuality

We know how long the battle was fought by the people of the LGBTQIA plus community for getting their orientation and sexuality, legalized. We know the famous case of Navtej Singh Johar[7], where the judgement of the court given in Suresh Kaushal v. Naz foundation[8] was overruled and how legalization of homosexuality took place, with the de criminalization of homosexuality as dealt with in section 377 of the IPC. The court said that, sexual orientation is a matter of choice and who to have a sexual intercourse is a matter of privacy, therefore the same should not be questioned or held as something criminal as it violates the basic human dignity. The court said that till the time no such sexual act is done is public it is not something that can be considered as obscenity. Article 21, right to life is a part of the golden triangle of rights, which makes it very important and right of choice, is also a part of the article 21. Since, homosexuality has been recognized, we have moved away from the binary sexual orientation concept. Therefore, marriages between the homosexuals also need to be recognized.

The non-supporters of this, say that marriage has to give way for the procreation, but the same is considered normal only between a male and a female. Though, it is very important to understand that “normal” is very subjective and varies from person to person, especially after the court has decriminalized section 377.  For the same, petitions were filed in three separate acts, which are, special marriage act, the foreign marriage act and the Hindu marriage for recognizing same sex marriages. The court advised that the matter should be dealt by the legislature and the same was forwarded to the central government. It was argued by the government, that the traditional notion of marriage considers the male and female as the partners, therefore they cannot interfere with the settled institution of marriage. It was said by the government that the same sex marriages do not fit into the traditional notion of a family, in the eyes of society. The problem is quite ironic, as on one hand the right to marriage is being recognized but on the other hand it is not being recognized for a certain section of the society.  

Conclusion

From the traditional to the modern society, marriages form an integral part of the society. Similarly, sanctity has been attached to the marriage. Since they form such an important part of the society creation, since ages a type of control has been exerted by the patriarchal set up or the caste set up of the society and the social sanctions are put on people which is often used if they do not follow the set norms of the society. The entrenched inequalities of the society, make people take the extremist path and they even resort to killing their own family members, if they marry outside their caste as we saw in the case of Lata Singh v. State of Uttar Pradesh. Not just honor killings, the victims are subjected to all sort of humiliation. First of all, article 14 of the constitution does not give way for any sort of discrimination among any of its citizens. The main aim behind this was to do away with the deep-rooted inequalities that have been there in our society.

The framers of the constitution were far sighted in their vision when during the constitutional assembly debates, they explained how such a provision would be fueling the abolition of the caste system in the society. Today it’s not just a matter of caste but, gender, sex, religion and they can’t be a basis of segregating people at any cost. Article 21 establishes the right to marry of the people. It is available to all the citizens except the people who have recognized themselves to be a part of the LGBTQIA plus community. Also, this right to marry cannot be absolute, so at times when it is at loggerheads with other rights like right to privacy and health, then a balance of interests has to be done and through the historic and landmark judgements given by the courts every time, they have tried to do the same. After battling long legal battle for getting recognized in the society, homosexual community has yet not been able to secure for themselves the right to marry the partner of their choice, as a result they have to face a lot of problems in their life, yet it can be only hoped for now that the same is pondered upon, and it is realized, that marriage is the union between two adult individuals, who are ready to spend their life with each other.

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End Notes

[1] Mr ‘X’ v. Hospital ‘Z’ MANU/SC/0733/1998

[2]Mr. X v. hospital Z   MANU/SC/1121/2002

[3] Lata Singh v. State of U.P., (2006) 5 SCC 475

[4] KS puttuswamy v Union of India 2017 10 SCC 

[5] Shakti Vahini v. Union of India, (2018) 7 SCC 192

[6] Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368

[7] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

[8] CIVIL APPEAL 10972 OF 2013

Author: Shianjany Pradhan


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