Abstract
The institute of marriage is an ancient one and a universal social instrument that binds two
people into a legal contract to regulate and control the life of two entities.
“The three most important events of human life are equally devoid of reason: birth,
marriage, and death. ~ Austin O’Malley”
The dictionary defines marriage as “The legal union of a man and woman as husband and
wife.” The definition of marriage can be looked at from a legal perspective. A legal
dictionary defines marriage as “the state of being united to a person of the opposite sex as
husband or wife in a legal, consensual, and contractual relationship recognized and
sanctioned by and dissolvable only by law.”
Marriage according to the Hindu Law is a holy union performed through religious duties. A
Hindu marriage is considered a union of flesh and blood. It is considered to be a religious
sacrament to be followed for seven lifetimes and not a civil contract.
Marriage according to Muslim Law asserts that marriage is the only way to satisfy one’s
desire. Quran states that every person must marry.
Article 21 of the Indian Constitution protects the rights of men and women of major age to
marry and start a new family together. The right to marry is subject to national laws on
marriage, they also contain matters where marriage is prohibited.
The Karnataka court proclaimed that the right to marry a person of choice is a fundamental
right after a habeas corpus petition was filed by a resident of Bangaluru.
The woman told the two head bench how her parents were infringing her fundamental right
by keeping her confined to the house who were against her marriage to Wajeed Khan who
was her lover.
According to Hari Singh Gour. “A marriage is an alliance between man and woman
recognized by law. It is sometimes defined as an act, ceremony, or process by which the
relationship of husband and wife is constituted. It is to be pointed out that the meaning of
marriage differs in different countries”
We often see in our society that a man and a woman are pushed into a marriage which leads
to many kinds of evil such as dowry death, marital rape, harassment, physical abuse, or
mental abuse. However, the point is not that arranged marriages are the reasons for this evil
but when two strangers start living together many problems do come up which might lead to
such complications.
Love marriages in many Indian community are considered a big taboo, parents refrain their
children from marrying their lovers and force them into marrying someone else or worse the
children have to run away. In many communities in India, such practices are met with harsh
punishments like death or confinement of both parties.
This just shows how important it is to have the fundamental right which allows a person to
marry by choice, practice any religion, etc.
The right to marry a person is a choice not the consent of family, community or clan,
however, there is also no harm if two individuals by their own choice decide to enter into an
arranged marriage with their parent’s consent.
Other laws that lay down a person’s right to marry in India are:
- The Prohibition of Child Marriage Act, 2006
- The Guardians and Wards Act, 1890
- The Majority Act, 1875
- The Family Courts Act, 1984
- The Protection of Women from Domestic Violence Act, 2005.
The case of Janab K. Abdul Rahim v. The Divisional Electrical on 16 December 2002
questioned the Constitutional validity of the provisions of Rule 21 of Railway
Servants(conduct) rules 1966 which proclaimed From the above it is clear that Rule 21 of
the Railway Services (Conduct) Rules, only provides a restriction, which should be taken as
a reasonable restriction imposed in the public interest and cannot be said to take away the
right available under the personal law of the persons belonging to Muslim Community.
Once a person joins Government service he is bound by the terms and conditions so
imposed by the Government.
The Supreme Court made observations on the marriage of Hadiya, a woman from Kerela
who became the face of “love jihad” row after her family took her to the court for
converting from Hindu to Muslim to marry a Muslim man. Justice Chandrachud proclaimed
in the court that “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. The absolute right of an individual to choose a life partner is
not in the least affected by matters of faith. The Constitution guarantees to each individual
the right freely to practice, profess and propagate religion. Choices of faith and belief as
indeed choices in matters of marriage lie within an area where individual autonomy is
supreme…Neither the state nor the law can dictate a choice of partners or limit the free
ability of every person to decide on these matters. They form the essence of personal liberty
under the Constitution”
One of the earliest cases which dealt with the issue of inter-caste marriage was of Lata
Singh v State of U.P. Given in the year 2006. The brief facts of the case were that the
petitioner was of legal age and had the right to marry whomsoever she wished to.
In recent years the hate crime rate has risen and civilians have taken up the duty to take
justice into their own hands which often leads to a blood bath. Many communities would
rather see their daughter dead than marry an outcast of their community. Even if through an
extreme circumstance the family does recognize the marriage and let the newlyweds live
with them, they would slowly torture them either mentally or physically or mentally.
It is important to change the mindset of the country regarding marriage, it is not a necessity
to be done at a fixed age but a joyous occasion to bind two people together.
The worst situations are when rape victims are forced into marriage with the rapist and the
rapist is forgo the crime committed by him. Such cases happen in large amounts all over
India, setting bad examples which promote many men to take the routing of raping a woman
just to get her to marry her. Where is the choice of that woman?
One of such cases is of Mohit Subhash Chavan who was accused of raping a minor child. A
document was drawn between the mother of the child and Chavan who promised to marry
the minor he raped when she turned 18. However, by the time she turned, he had already
gotten married and the case went to the court.
“Women’s groups and advocates and child rights activists in India generally converge on the
point that marrying the survivor is a time tested ploy by rapists to escape conviction or the
prolonged sentence. This tactic takes advantage of cultural issues around rape, where raped
women are, to this day, looked upon as jinda lash – living dead,”
India still battles with the problem of child marriage, where a young innocent naive girl is
married to a man with no concept of marriage or life. She is bound to be a servant for that
man and once she raises a certain age she is turned into a baby machine.
The concept of marriage has lost its way and the right to marry by choice is a concept not
known to many.
If citizens are not aware of their rights then how can they challenge them if they are
obstructed.
“Article 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.” In the case of Shafin
Jahan v Asokan K.M and others