Is Marriage A Fundamental Right ?

While addressing the Hadiya Marriage Case (2018), India’s Supreme Court made it clear that the right to marry a person of one’s choice is integral to Article 21 of the Indian constitution, that guarantees the right to life and personal liberty. Justice DY Chandrachud went on to state “the choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable.” However, then how do we justify the continued denial of this choice to a large section of Indians? Does Article 21 not lay out universal rights, but privileges limited only to heterosexual individuals?

More recently the Karnataka High Court (2020) upheld that a right to marry the person of one’s choice is a fundamental right. However whether marriage itself a fundamental right is not explicitly addressed in the Indian constitution and the language adopted in various court judgements has been ambiguous enough to leave the debate open. The Indian government is adamant it is not, and strictly restricts marriage to heterosexual unions. It insists that decriminalisation of same-sex relationships by the Supreme Court in 2018 does not legitimised them.

That marriage is a holy union possible only between a biological man and a biological woman is also the widely held and more socially accepted view in India. Opponents of same sex marriage see it is an affront to religion, tradition and culture, in which marriage, i.e the heterosexual version of it, is deeply rooted. While they claim not to be against LGBTQIA+ people, they predict dire social consequences if the definition of marriage is expanded or modified in any way.

It is worth noting that grave concerns and vociferous objections also accompanied previous modifications to traditional marriage, such as when minimum age for marriage was introduced or when provisions for ending a marriage (divorce) were laid out. Cultural and constitutional discourse often overlook pertinent practical implications, such as lack of legal protections for people from acts of an intimate same sex partner abuse and violence, challenges around adoption and child custody, issues around inheritance and tax, disputes around medical rights and legal guardianship complications just to name a few.

Supporters of same-sex marriage argue that right to marry a partner of one’s choice is crucial to an individual’s well-being and the full expression of their identity. It’s selective denial, they argue, is a violation of the principles of equality, liberty and the right to life, and hence a violation of their fundamental rights.

But, is marriage a fundamental right? Unlike the United States, where the Supreme Court in 2015 declared that marriage was indeed a “fundamental right” for all, the question still remains unanswered in India. To advance greater awareness and a nuanced understanding around this topic, we call for a balanced and dispassionate discussion among experts.