The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.[1]

The constitution is the Grundnorm and is the realization of aspirations and spirit of the citizens of India. The sacred part III of the constitution of India guarantees basic and fundamental rights which are core and heart centric to the people of India. A number of rights have been declared by the courts to be inherent within the broad scope of Article 21 of the Indian Constitution, which protects the fundamental rights to life and personal liberty. Through its evolving interpretations, the Supreme Court of India has broadened the definition of Article 21 to encompass a number of derived rights that are necessary for both individual liberty and human dignity. Among these, the right to love has been recognised as an essential component of individual freedom, guaranteeing that people can select their partners and relationships without excessive government or social intervention. This acknowledgement supports the idea that intimate relationships and displays of affection are within the purview of the constitution, which upholds the values of individual liberty, dignity, and choice.

Under the American constitutional jurisprudence right to marry evolved from the case Loving v. Virginia,[2] the case that invalidated the laws against miscegenation, the Court calls marriage "one of the basic civil rights of man." In the latter case Zablocki v. Redhail,[3]recognizes the right to marry as a fundamental right for Fourteenth Amendment purposes, apparently under the Equal Protection Clause; the Court states that "the right to marry is of fundamental importance for all individuals," and continues with the observation that "the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships."

Under the Indian Constitutional Jurisprudence “Right to Marry” has been recognised as intrinsic part of Article 21 of the constitution of India. The Judicial verdicts which recognise the right to marry as well as right to love as constitutionally guaranteed freedom and basic human right are discussed as:

In the Case of Laxmibai Chandaragi B. and Ors. Vs. The State of Karnataka and Ors.[4]the brief facts of the case are as “One person lodged a complaint stating that his daughter-Petitioner No. 1 was missing. In pursuance to the complaint, FIR of a missing person was registered and the investigation officer recorded the statement of the missing person's parents and her relatives and took call details. From the call details, it became apparent that the Petitioner No. 1 was in contact with Petitioner No. 2. In the course of investigation, it was found that the Petitioner No. 1 married Petitioner No. 2. The Petitioner No. 1 sent her marriage certificate to her parents through whatsapp in which she revealed the factum of marriage to Petitioner No. 2. It was the case of the Petitioners that the uncle of Petitioner No. 1 was threatening them. On the Petitioners approaching the High Court, seeking protection for themselves and the family members, the matter could not be taken upon even after about a period of one month for urgent hearing.’’[5]

The Hon’ble Apex Court Held that:

Both the parties are well educated. The Petitioner No. 2 is an M. Tech from NIT, Tiruchirapalli, while Petitioner No. 1-wife, is an M.A.B. Ed. The Petitioner No. 2 had got a placement as an Assistant Professor in Jain College of Engineering, Belagavi, Karnataka while the Petitioner No. 1 was a Lecturer in KLES (Karnataka Lingayat Education Society) Pre-University College, Bailhongal and it appears that they developed liking for each other during these assignments. However, there was resistance from the parents of Petitioner No. 1, though the parents of Petitioner No. 2 were willing for the matrimony of both the well qualified Petitioners who are majors and Hindu by religion.

We are fortified in our view by earlier judicial pronouncements of this Court clearly elucidating that 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 and that their consent has to be piously given primacy.It is in that context it was further observed that the choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. Such a right or choice is not is not expected to succumb to the concept of "class honour" or "group thinking.[6]

Insofar as the present case is concerned, the Petitioners having filed the present petition, no further statement is really required to be recorded and thus, the proceedings in pursuance to the FIR No. 226/2020 dated 15.10.2020 registered at Murgod Police Station, Belagavi District, Karnataka are quashed with the hope that the parents of Petitioner No. 1 will have a better sense to accept the marriage and re-establish social interaction not only with Petitioner No. 1 but even with Petitioner No. 2. That, in our view, is the only way forward. Under the garb of caste and community to alienate the child and the son-in-law will hardly be a desirable social exercise. In the words of Dr. B.R. Ambedkar "Annihilation of Caste:“I am convinced that the real remedy is inter-marriage. Fusion of blood can alone create the feeling of being kith and kin, and unless this feeling of kinship, of being kindred, becomes paramount, the separatist feeling--the feeling of being aliens--created by Caste will not vanish. Where society is already well-knit by other ties, marriage is an ordinary incident of life. But where society is cut asunder, marriage as a binding force becomes a matter of urgent necessity. The real remedy for breaking caste is inter-marriage. Nothing else will serve as the solvent of caste.”[7]

In the case of Shafin Jahan Vs. Asokan K.M. and Ors[8].this case is another instance wherein the Hon’ble Supreme Court declared and upheld the choice of a person as intrinsic and basic human as well as constitutional right.The key issue in the case of Shafin Jahan vs. Asokan K.M. and others was whether the Kerala High Court was justified in annulling the marriage of Hadiya (Akhila Asokan) and Shafin Jahan in a habeas corpus petition. The Supreme Court of India, comprising Chief Justice Dipak Misra and Justice A.M. Khanwilkar, held that the High Court erred in its jurisdiction by annulling the marriage, as Hadiya, a major, had the right to choose her partner. The Court emphasized the importance of individual autonomy and the right to marry by choice, setting aside the High Court's order and allowing the appeal. The Court also allowed the National Investigation Agency (NIA) to continue its investigation into any criminality, provided it did not interfere with the marital status of Hadiya and Shafin Jahan.[9]

The Court held that, “it is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible. Faith of a person is intrinsic to his/her meaningful existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realization of a right is more important than the conferment of the right. Such actualization indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so because the individualistic faith and expression of choice are fundamental for the fructification of the right. Thus, we would like to call it indispensable preliminary condition.”

In the case of Shakti Vahini vs. Union of India (UOI) and Ors.[10] the Supreme Court of India in Shakti Vahini v. Union of India addressed the issue of "honour killings" and the role of Khap Panchayats in such crimes. The petitioner, Shakti Vahini, sought directions for preventive measures against honour crimes and the establishment of special cells for the protection of couples. The Court emphasized that individual choice in marriage is a fundamental right under Articles 19 and 21 of the Constitution, and any interference by family or community is unconstitutional. The Court issued directives for preventive, remedial, and punitive measures to curb honour crimes, including police vigilance, protection for threatened couples, and fast-track trials for such cases. The petition was disposed of with these directives, urging compliance within six weeks.

In another celebrated case of Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors.[11] the Supreme Court, addressed the constitutionality of Section 377 of the Indian Penal Code, which criminalized consensual same-sex relations between adults. It held that Section 377 violated Articles 14, 15, 19, and 21 of the Constitution by infringing upon individual dignity, privacy, autonomy, and equality, asserting that societal morality cannot override constitutional morality. The Court partially struck down Section 377, decriminalizing consensual acts between adults in private while retaining its applicability to non-consensual acts, bestiality, and acts involving minors, relying on NALSA and Puttaswamy to affirm LGBTQ+ rights and a transformative constitutional approach.[12]

In the case of Lakshmi Kumar and Ors. vs. The Director General of Police and Ors.[13] case the High Court refereed in its judgement the various precedents of the Supreme Court which recognised right to choice and marriage as basic intrinsic part of Article 21 of the Constitution thereby upholding the right to choice and marry with one’s own choice. In the cases of Upasna Choudary and Ors. Vs. The Director General of Police and Ors[14], Nazia Khurshid and Ors. Vs. The Union Territory of J&K and Ors.[15], Sunil Kumar and Ors. Vs. State of J.K. and Ors.[16], Surjeet Singh and Ors. Vs. State of J&K and Ors.[17], Rubana Naz and Ors. Vs. Director General of Police, J&K Police Headquarters and Ors.[18], Kajal Choudhary and Ors. Vs. State of J&K and Ors.[19], Ashraf Khan and Ors. Vs. State of J&K and Ors.[20], in all these judgements protection of the lives and liberty of the individuals have been protected in line with the established precedents of the supreme court.

The celebration of love, as seen during occasions like Valentine’s Day, symbolizes a broader societal acceptance of personal freedom in relationships. Judicial pronouncements send a strong message against honour crimes, forced separations, and societal prejudices, emphasizing that the law stands as a guardian of individual liberty and free will. The right to love and marry is not just a legal entitlement but a constitutional and basic human right that must be protected from any form of infringement. In a progressive society, legal recognition of personal autonomy in matters of love and marriage is crucial for ensuring equality, non-discrimination, and the fulfilment of constitutional ideals. The judiciary’s stance reaffirms that love transcends social barriers and that the law must continue to evolve to safeguard this right against all forms of societal and institutional suppression.

Thank You.

Umar Bashir

(B.A.,LLB, LLM, PGDCL)

7006121252, 9797901560

umarb373@gmail.com