Enunciation of Right to Choice in Marriage

Marriage and family are considered as basic rights of the human beings.  Often the right to marry and establish a family is interfered by society and its various groups. The grounds for objecting an adult’s right to marry a person of his/her choice are differences in caste, religion, economic status etc.  To counter the situation wherein Indian society, couples have been killed, the Hon’ble Apex Court and High Courts have issued directions.

A. Recognition of the right to marry and family

The right of an adult to Marry with own choice has been recognized as under –

Article 16,  Universal Declaration of Human Rights (UDHR), 1948 –

1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during the marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 23, International Covenant on Civil and Political Rights, 1966 –

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during the marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

B. Role of Higher Judiciary

In Vishal Yadav v. State of U.P. , alongwith other petitions, decided on 2 April ,2014, the Hon’ble Delhi High Court observed as follows –

  • The instant case also manifests the restrictions within which many women in this country grow and survive in the Indian society. It epitomizes the limitations in choosing a life partner, even in the case of an educated, articulate young lady from a well-placed family in the National Capital Region. (Para 84)
  • The right to choose your life partner or whom you associate with is a fundamental right, it is an integral part of the right to life. Even though marriage as a right has not received statutory recognition in any legislation in India, judicial pronouncement has, however, held that the individual’s privacy of marriage and dignity are essential concomitants of the right to life and liberty guaranteed under Article 21 of the Constitution of India which are to be afforded protection. (Para 2021)
  • Should not every woman, or girl, whose freedom to choose her partner is so taken away by any person, be treated as a victim of the crime of honour killing as well? Such a woman is left to face the criticism and ill treatment of her family and caste, completely defenceless and alone. It is high time that such women are afforded similar protections as are being provided to victims of other kinds of violence Crl.A.Nos.741, 910/2008 & 145/2012 1115 (including sexual violence) so that they are able to live life with dignity and self respect on their terms, in the manner they choose. Certainly not in a manner where critical choices regarding their lives are taken by others and thrust upon them. (Para 2026)

In Shakti Vahini v. Union of India and others, decided on 27 March, 2018,  following observations were made by the Hon’ble Apex Court –

  • The question that poignantly emanates for consideration is whether the elders of the family or clan can ever be allowed to proclaim a verdict guided by some notion of passion and eliminate the life of the young who have exercised their choice to get married against the wishes of their elders or contrary to the customary practice of the clan. (Para 1)
  • The action of a woman or a man in choosing a life partner according to her or his own choice beyond the community norms is regarded as dishonour which, in the ultimate eventuate, innocently invites death at the cruel hands of the community prescription. (Para 4)
  • The consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock. Their consent has to be piously given
    primacy. If there is offence committed by one because of some penal law, that has to be decided as per law which is called determination of criminality. It does not recognize any
    space for informal institutions for delivery of justice. (Para 41)
  • The consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock. Their consent has to be piously given
    primacy. If there is offence committed by one because of some penal law, that has to be decided as per law which is called determination of criminality. It does not recognize any
    space for informal institutions for delivery of justice. (Para 44)
  • Therefore, we would recommend to the legislature to bring law appositely covering the field of honour killing. (Para 52)
  • Directions issued (Para 53) –

To meet the challenges of the agonising effect of honour crime, we think that there has to
be preventive, remedial and punitive measures and, accordingly, we state the broad contours and the modalities with liberty to the executive and the police administration of the concerned States to add further measures to evolve a robust mechanism for the stated purposes.

In Shafin Jahan v. Asokan K.M., decided on 8 March,2018 , the Hon’ble Apex Court set aside the judgment and order passed by the High Court ( that annulled the marriage Shafin Jahan and  Hadiya alias Akhila Asokan).

The above judgments are the examples where the higher judiciary has enunciated the right to marry a person of choice as a constitutional right of an individual. It is hoped that society soon realizes that this right is akin to the human existence and it starts respecting this right.

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Bhumika Sharma

She is currently a Research Scholar, (PhD) at Himachal Pradesh University, Shimla. She finds peace in writing and researching on a variety of social issues. She believes in the power of education and awareness to deal with various problems.

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