The fundamental right to marry in India and its application to same-sex marriage

Unlike Article 16 of Universal Declaration of Human Rights, the right to marry is not expressly recognized either as a fundamental or constitutional right under the Indian Constitution. Though marriage is regulated through various statutory enactments, its recognition as a fundamental right has only developed through judicial decisions of India’s Supreme Court. Such declaration of law is binding on all courts throughout India under Article 141 of the Constitution.

One of the earliest cases which dealt with this issue was Lata Singh v. State of UP, delivered in 2006, concerning an inter-caste marriage. The Supreme Court held that since the petitioner was a major, she was entitled to marry whoever she wanted and that no law bars an inter-caste marriage. The judgment, however, applied specifically to the case and there was no “declaration of law” as such by the Court. But the Court expressly recognized the petitioner’s right to choose a partner of her choice.

A little under a decade later, in 2014, the Supreme Court took suo motu cognizance of newspaper reports of the gang rape of a 20-year-old Indian woman on the orders of a village court. The village court or the community panchayat ordered this so called-punishment because the woman had a relationship with a man from a different community. The Supreme Court in no uncertain terms held that “an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage. Such offences are resultant of the States incapacity or inability to protect the Fundamental Rights of its citizens.” Article 21, which deals with the right to life and personal liberty, is an all-encompassing provision which includes within its fold the inherent right to marry someone of one's own choice.

The question of choice has been extensively dealt with by a Constitution Bench of nine judges in Justice KS Puttaswamy (retd) and another v. Union of India and others. The Court unanimously held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21”. In the majority opinion delivered by Dr. DY Chandrachud J, the Court in paragraph 81 held that in the Indian context, the fundamental right to privacy would cover at least the following three aspects - (i) privacy that involves the person, (ii) informational privacy and (iii) privacy of choice, which protects an individual’s autonomy over fundamental personal choices.

The Court further opined,

"Privacy represents the core of the human personality and recognizes the ability of each individual to make choices and to take decisions governing matters intimate and personal.”

Eventually, in its conclusion, it held,

“Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy….”

Shortly after the Puttaswamy case, two judgments were delivered in quick succession by the Supreme Court in which it held that the right of a person’s choice to marry whom she pleases in an inherent part of individual dignity and intrinsic to Article 21. In Shakti Vahini v. Union of India the Court opined,

“42.…It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected…..”

Less than a fortnight later, the very same bench, in the most specific terms, reiterated this right in Shafin Jahan v. Asokan K.M. and others while referring to Article 16 of Universal Declaration of Human Rights and the Puttaswamy case. The majority held,

“21. The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. …… Society has no role to play in determining our choice of partners.”

While the aforesaid judgments have in no uncertain terms upheld that the right to marry is a fundamental right, none of them pertained to same sex marriages. Therefore, could it be argued that the right to marry would only apply to heterosexual couples and not same sex couples? The answer to this question can be found in the five-judge Constitution Bench decision in Navjet Singh Johar and others v. Union of India, which declared Section 377 of the Indian Penal Code, 1860, a colonial era provision that had criminalized homosexual relations, as unconstitutional to the extent that it prohibited voluntary sexual intercourse between two consenting adults.

The Court had held such prohibition violative of the right to dignity, privacy, freedom of expression under Article 19(1)(a) and equality under Article 14 and thereafter read the section down. Though the Court only concerned itself with the constitutional validity of Section 377, the majority opinion (Dipak Misra CJ for himself and AM Khanwilkar J) and the concurring opinion by Dr. DY Chandrachud J did rely on the Shafin Jahan and Shakti Vahini cases on the question of freedom of choosing a life partner of one’s own choice and recognized the “sexual autonomy of an individual”.

However, the most significant observations in this case have been made by Chandrachud J in the concluding portion of his concurring opinion in para 156, in which he has specifically held that members of the LGBT community “are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution” and are entitled to equal citizenship and “equal protection of law.”

Therefore, once members of the LGBT community “are entitled to the full range of constitutional rights”, it is beyond doubt that the fundamental right to marry a person of one’s own choice has to be conferred on same sex couples intending to marry. And if such a right is denied, they can certainly knock the doors of the Constitutional Courts to enforce these basic and inherent rights.

Fortunately, this first step has in fact has been taken by a gay and lesbian couple whose respective marriage registrations under the Foreign Marriage Act, 1969 and the Special Marriage Act, 1954 were denied by the state authorities. Both sets of couples have filed petitions in the Delhi High Court which are pending adjudication. A similar petition has also been filed by a gay couple in the Kerala High Court for recognition of homosexual marriages under the Special Marriage Act, which is an Act that governs civil marriages or colloquially known as “court marriages”.

However, the battle for equality appears to be an uphill task, with the State clearly opposing such petitions on the ground that Indian law and culture do not recognize same-sex marriages. But on a more positive note, the recent decisions of the High Courts of Orissa, Punjab & Haryana and Uttarakhand expressly recognizing and enforcing the rights of same sex couples to live together, even if not in “holy matrimony”, does give some hope of the courts being receptive and active to the rights of same sex couples.

With one foot already in the door, the chances of the courts in India recognizing same-sex marriage at par with heterosexual marriages look optimistic. One only hopes that the Indian State would someday take as pragmatic a view as the courts have in this battle for equal rights and dignity.

The author is a practicing Advocate at the Bombay High Court. He can be contacted through his Twitter Handle @DormaanD.