Wednesday, 26 January 2022

Right to Marry

 RIGHT TO MARRY

INTRODUCTION

The right to marry is a human right under Article 12 of the European Convention for the protection of Human Rights (ECHR), it states that, “Men and women of marriageable age have the right to marry and to found a family according to the national laws governing the exercise of this right”. No law has been enacted in India defining and laying down rules, regulations, duties and obligations with respect to Right to Marry. Therefore, the Judiciary has taken certain steps to fill in the legal gaps by their decision. 

In one of the landmark Judgement of the Supreme Court, Mr. X Vs. Hospital Z (AIR 1999 SC 495), the court had to decide upon some crucial questions in the modern social context viz, can the doctor disclose to the would-be wife of a person that he is HIV positive? Does it infringe the right to privacy of the person concerned? How does it impact the Right to Marry of a person? 

Case Laws related to Right to Marry

  1. Mr. X Vs. Hospital Z, AIR 1999 SC 495: in the case, the court held that the lad y intending to marry such a person is also entitled to all the human rights which are available to any human being. The right to life under Article 21, also includes, positively, the right to be told that a person with whom she was proposed to be married, was the victim of a deadly disease, which was sexually communicable. Moreover, when two FRs clash viz, that of the person concerned (Right to Privacy) and that of the would-be-wife (to live a healthy life also guaranteed by Article 21), ‘the right which would advance the public morality or public interest, would alone be enforced through the process of court. 

In such a situation where Right to Life is interlinked with Right to lead a healthy life supersedes Right to Privacy, then the indirectly related Right to Marry is also superseded by the Right to lead a healthy life. the Right to Marry can be curtailed as and when the facts of he case demand, as upheld by the Supreme Court. The clash between two FRs is set to be resolved harmoniously and one right, in certain situations, superseded the other. 

  1. Mr. X Vs. Hospital Z, AIR 2003 SC 664: the question raised was with respect to the absolute bar on “right to Marry” for PWHA. The question put forth was whether a person suffering from HIV (+) contracting marriage with a willing partner after disclosing the factum of disease to that partner will be committing an offence within the meaning of section 269 and 270 IPC. The court clarified that there is no bar for the marriage, if the healthy spouse consents to marry I spite of being made aware of the fact that the other spouse is suffering from the said disease. Further, the court also said it was open to the hospital or the doctor concerned to reveal such information to persons related to the girl whom he intended to marry and she had a right to know about the HIV positive status of appellant. 

  2. Shafin Jahan Vs. Ashokan K.M., CRL Appeal No. 366 of 2018: this is a case that had huge bearing on inter-religious marriages and a woman’s right to marry, the case concerned with the cherished value of liberty of an individual, and is the infamous case which was titled by media as ‘Love Jihad’, was a unique one. The rights of an adult woman were being questioned in the case. The allegation that a radical organisation was involved in influencing the girl to change her religion and further her parents concern that she was to be taken out of India, invited a criminal investigation in the matter as well. 

Issues raised in this case was: 1. Can the high court annul a marriage under Article 226? 2. Was an NIA probe necessary in the present case?

The Supreme Court set aside the Judgement of Kerala High Court that had annulled the marriage of Hadiya and Shafin Jahan and thus resorted the marriage. The court further made clear that the investigation by the NIA in respect of any matter of criminality but without any interference in the marriage. A 3-Judge bench removed Hadiya from the custody of her father and also sent her back to college after the expressed her wish to continue her studies. 


Individualism is the central theme of the civil liberties under our constitution, individual autonomy in terms of choices of food, dress, religion etc. has now been upheld by the Apex Court in the Nine-Judge bench Privacy judgement. Conversion to another religion as well as the option of marrying a person of one’s own choice are an integral part of individualism with which the state and others should have no concern. Thus, courts cannot probe the validity of marriage if the two adults have married under applicable personal laws.  


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