Far fetched to say there is no fundamental right to marry: SC

'The Constitution itself is a tradition breaker,' the bench said, while hearing petitions for legal recognition of same sex marriage

The Supreme Court on Tuesday said that to take an extreme position that there was no fundamental right to marry would be far-fetched, as the Constitution, in fact, has protected core elements of marriage and has been a tradition breaker.

Hearing a batch of petitions for legal sanction to same sex marriage, a five-judge bench led by Chief Justice of India D Y Chandrachud sought to know if anyone has a fundamental right to marry, or there is no fundamental right to marry at all.

Responding to senior advocate Rakesh Dwivedi's contention on behalf of the Madhya Pradesh government that so far marriage is heterosexual, the bench asked him, “Forget the issue of same sex, does anyone have a fundamental right to marry? Or, there is no fundamental right to marry at all. Because your submission is that no one has a fundamental right to marry."

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The bench, also comprising Justices S K Kaul, S Ravindra Bhat, Hima Kohli, and P S Narasimha, said, "We have gone ahead carved and discovered so many rights - to personhood, right of choice, right to be left alone, privacy, and dignity. With all these, the question is does a person or citizen have a right to marry”.

“Is it part of Article 21 or not part of it? We have to start with the premise that there is no unqualified right. Right to free speech is not unqualified right, right to association is not unqualified, personal liberty is not unqualified, right to life….therefore, there is no absolute right, if we start with that premise….does the right to life have the concomitant right to marry,” the bench asked.

The bench told Dwivedi the debate should not start with the contention that homosexual couples do not have a right to marry, rather it should start with the question of, if there is a right to marry.

Dwivedi said the heterosexual couples have the right to marry in accordance with their custom, personal law, and religion, and that is the foundation of their right.

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"Therefore, you concede the fact that there is a right to marry under the Constitution, but it is only confined to only heterosexual persons according to you, or is it your argument that there is no right to marry at all as a fundamental right,” the bench asked.

Going by custom, culture, religion, inter-caste marriages were not permitted 50 years ago, even inter-faith marriages were unheard of, therefore, the context of marriage has changed, the bench added.

Dwivedi, for his part, said “These changes have been brought about by legislation and legislature can alter the customs. The Constitution only gives a fundamental right to form relations, associations, which is in Article 19 (1) (c) which can be regulated”.

He added that marriage over the years has resulted in social institutions as a result of society’s evolution, and the right to marriage which was existing as a part of social institutions will be accommodated in the right to associate in a particular manner.

“The Constitution has not granted anything. It only recognises and guarantees, nothing is granted. We're free citizens. We have taken this to ourselves. Right to speak, to associate, these are part of our inherent rights. The Constitution doesn't grant it.... Even legislation has only recognised the right to marry as inherent. If we say the right to marry is inherent then it is part of the Constitution. You may locate it in (Articles) 19 or 21 of the Constitution,” the bench said orally.

"The Constitution itself is a tradition breaker," the bench said, referring to outlawing untouchability and bringing in reforms in interest of women and children.