Marriage is a social institution which signifies spirituality, upholds the
concept of family and procreation, and is defined traditionally as a union
between a man and a woman who after marriage become a husband and a wife. The
institution of marriage is governed by personal laws in India except of course
the special marriage act and the foreign marriages act.
This institution has
evolved in as much as that spouses can now take help of laws to enter into or
break marriages. The right to marry is under great scrutiny as of now because of
the petition filed in the SC for legalization of same-sex marriages under the
Special Marriage Act 1954.
It is true to be stated that the law must keep its
fingers on the pulse of the society however, it is also true that wide
interpretations of Article 21, by our Courts have fuelled a jurisprudential
fallacy through its decisions in Lata Singh v. State of U.P., K.S. Puttaswamy
v. U.O.I., Shakti Vahini v. U.O.I. and Shafin Jahan v. Ashokan and
ors.. In the case of Navtej Singh Johar v. U.O.I. court relied upon these
cases and upheld the freedom to choose one's life partner and the sexual
autonomy of an individual in respect of the perceived right to marry.
Jurisprudence Of Marriage
In Human Dignity: Its Implications for Marriage, the Family, and Society,
Professor William states that at the core of marriage resides the realisation of
the importance of the aspect of human dignity. He also stated the choice of
marriage is the supreme expression of one's individual freedom. Prof. Elen
Alvare stated about the anthropological and theological jurisprudence of
family as follows� loving someone who are not our kin and the welfare and
rearing of the children is an inalienable aspect of marriage hence marriage must
be restricted to remain between a man and a woman.
State only recognizes and protects those things which are perceivably valuable
in its own eyes. It recognizes heterosexual marriage because it has an interest
in promoting the growth of formally committed relationships which comparably
have a higher value when it comes to the commitment factor. Heterosexual
marriage is something that is more valuable in the eyes of the state and society
because it entails a potential for procreation. It also upholds marriage because
it removes any speck of legal or moral disapprobation.
The disagreement between natural law theorist and positivists regarding marriage
is that where the former believes that it is an outcome of a natural process
where states role is minimal and restricted to recognising and regulating it,
whereas, the latter believes that marriage is a social construct which the law
created and hence is open to different definitions and meanings as one chooses
to give it.
Cerestates that the naturalist opinions regarding marriage could possibly be
conservative, oppressive, and reactionary. However, it does have certain
benefits in the form of maintaining a liberating and admonishing stance against
repressive human tendencies regarding constructions and human hubris
respectively. Furthermore, same-sex marriages pose a possible threat to the best
interests of the children which stems from norms that define and regulate
traditional societal institutions like that of the concept of a family.
Doyle states that:
Marriage is not about indulging in sexual intercourse,
rather is the expression of commitment. This view also finds authority in the
Indian case of Saroj Rani v. Sudarshan wherein the court rejected the A.P. HC
judge' s views that marriage is about sexual acts and hence by enforcing the
conjugal rights of husband we're in turn coercing the wife to co-habit and
indulge in sexual activity. The Court held that marriage is not about indulging
in sexual acts alone.
Jeremy Bentham in his work, An Introduction to the Principles of Morals and
Legislation (1781) stated that, pain and pleasure are our sovereign masters and
the state must uphold that which magnifies pleasure/happiness and reduces pain.
He further stated that the interests of the community alone cannot be considered
and would be vain if considered without the interests of the individual.
Supporters of the conundrum of same-sex marriages argue that the state must also
take into account the pain-pleasure and happiness of the same-sex relationships.
Further, the supporters of same-sex marriages also take the help of the concept
of veil of ignorance propounded by John Rawls and state that while making laws
regarding the legalization of same-sex marriages, the lawmakers and judges must
undergo a veil of ignorance which would remove them of the moral, religious, and
other biases with respect to sexual autonomy and would help them decide
The Supreme Court of the United States in Obergefell vs Hodges
, held that at
the core of marriage lies the pursuit of happiness and both the Due Process
Clause and the Equal Protection Clause guarantee the right to same-sex marriage.
In the case of Francis Coralie vs Union Territory of Delhi
, the SC held that
Article 21 enshrines the right of people to intermingle with fellow humans and
to express oneself in diverse forms which is an inseparable part of right to
live with human dignity as was held and recognized by the Court.
Hence on this
ground too the supporters of same-sex marriages claim that denying them the
right of marriage due to discrimination on basis of one's sexual orientation
violates Article 21 of the Constitution. Hence, they also claim that denying
them this right would entail a violation of the constitutional social contract.
This view is based on the Lockean Classical Liberalism and Constitutionalism
Hohfeldian analysis of the right to marry
Hohfeld lays down 8 legal precepts or common legal denominators which are
crucial for the prudence of any law and for analysis purposes. They are- right
and duty, privilege and no-right, power and liability, and immunity and
disability. Right is defined as an enforceable claim to performance and duty is
the obligation imposed by the law on a person, the disregard of which is a wrong
and attracts penalty.
When we think of marriage as a right in the hohfeldian
analysis it would construe that if I have a right to marry someone, the other
person therefore should have a duty to marry me. However, this interpretation
leads us to an absurd conclusion which is morally and legally unacceptable.
Hence the jural correlatives of right-duty cannot be said to be applicable to
Privilege/Freedom means the legal relation between two persons wherein one
person is free to conduct himself in the way he pleases and when his conduct is
not regulated by law and there is no penalty for disregard. No-right is the
jural co-relative of privilege and means a legal relation under which the law
cannot command a particular conduct of another.
Marriage is found in the choice
domain as it is an outcome of the inherent freedoms to make choices present in
us. One can choose whom to marry, and can also opt not to marry at all. Hence
the choice to marry falls under the privilege/freedom concept and everyone else
is in a no-right position to interfere.
Hence, the term right to marry is jurisprudentially wrong. The SC also has held
in the case of X v. Z Hospital, that there exists no right to marry as such.
The Problem With Judicial Interpretations
Article 16 of the UDHR recognises the right to marry a person of your choice
and similar provision are found in ECHR. People advocating for same-sex
marriages are basing their claims on the wide interpretations made by our Courts
on Article 21 of the Constitution.
Phrases such as human dignity, dignified
life, mere animal existence have been used and a no. of rights have been brought
under the umbrella of this article for e.g.- right to health, right to clean and
healthy environment, right to clean drinking water etc. However, these rights do
not find place in the statute itself and hence are not enforceable as they have
not been incorporated by an Act of Parliament.
Furthermore, the phrases used are
very vague and Law should not and cannot be vague. These wide and vague
interpretations do not have enforceability and here lies the problem.
Since the concept of marriage falls in the freedom and choice domain as per
Hohfeldian analysis it can be said that the choice to marry someone of the
opposite sex is allowed. Hence, it is true to be stated that the contention of
persons advocating same-sex marriages is inherently based upon the presumption,
not that we have a choice to choose are partner but that we have
a right to choose whom we love.
Now, the former is recognised because we saw
under the hohfeldian analysis how marriage is a concept pertaining to
freedom/privilege and hence a choice domain as is stated by our courts in
various decisions, however, the latter showcases the fallacy that exists in the
contentions of the same-sex marriage theorists.
Love is an idea which is too
rhetoric, wide and vague, and certainly cannot find place in law, at least in
the eyes of jurisprudence. Marriage is not about marrying anyone we love.
supporters of same-sex marriages are trying to equate love with marriage, which
is wrong as marriage is an altogether different concept with a different base
and different aims. Furthermore, it is important for the institution of marriage
that both parties belong to opposite genders. The Feminism practised in France
and Africa is very different than that in North America, where the feminists
stress on the importance of celebrating differences.
Hence, by allowing the
marriage of same-sex couples the law would equate opposite sex and same-sex
relationships, both of which are fundamentally different. In treating them as
the same by legalizing same-sex marriages it would lead to violation of the
principles of equal treatment and would construe as an inequality rather than
what the same-sex marriages supporters claim.
- (2006) 5 SCC 475
- (2017) 10 SCC 1
- (2018) 7 SCC 192
- (2018) 16 SCC 368, AIR 2018 SC 1933
- AIR 2018 SC 4321
- International Journal of the Jurisprudence of the Family, 1, 289-296
- Id at 92 and 81
- In The Problem of "Nature" in Family Law; id at 261
- Id at 323, 324
- 135 S. Ct. 2584 (2015)
- 1981 AIR 746, 1981 SCR (2) 516
- (2003) 1 SCC 500
- United Nations General Assembly. The Universal Declaration of Human Rights (UDHR). New York: United Nations General Assembly, 1948
- Article 12, Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, available at: https://www.refworld.org/docid/3ae6b3b04.html [accessed 14 April 2023]