While hearing a bath of pleas for same-sex marriages, Supreme Court on Tuesday queried whether anyone has a fundamental right to marry, or is there no fundamental right to marry at all and stressed that the Constitution itself is a tradition breaker.

A five-judge bench headed by Chief Justice of India D.Y. Chandrachud asked senior advocate Rakesh Dwivedi, representing the Madhya Pradesh government, “forget the issue of same sex, does anyone have a fundamental right to marry? Or, is there no fundamental right to marry at all? Because your submission is that no one has a fundamental right to marry”.

Advertisement

Dwivedi said that so far the marriage is between two heterosexual individuals.

The bench, also comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, said it is not on heterosexual, “does any citizen of this country for whom this court, our society, our polity, has placed the individual at that highest pinnacle. And, we have gone ahead carved and discovered so many rights — to personhood, right of choice, right of left alone, privacy, dignity… with all this, the question is does a person or citizen have a right to marry”.

Justice Bhat asked: “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 Dwivedi to not start the debate that same sex people do not have right to marry, rather start with is right to marry or is there a right to marry.

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

The Chief Justice observed: “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?”

Justice Bhat said: “Custom, culture, religion, rewind 50 years ago inter-caste marriages were not permitted. Even inter-faith marriages unheard of, therefore, the context of marriage has changed.”

Dwivedi 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.

Justice Bhat said: “The Constitution has not granted anything. It only recognizes 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 is 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 21a.”

Justice Bhat said “the moment you bring tradition, the Constitution itself is a tradition breaker. Because the first time you brought in (Articles) 14, you brought in 15, and 17, those traditions are broken”.

The bench queried, “if those traditions are broken, what is held hallowed in our society in terms of caste?”

“We made a conscious (decision)… and said we don’t want ita.outlawing untouchability in the Constitution. But at the same time let us be alive to the fact that the concept of marriage has evolved.”

Dwivedi submitted that the point is that all these reforms are made by the legislature for the interest of women and children and they do not alter the core aspect of the social institution of marriage, “namely that it’s an institution. Hindu marriage is regarded as a Sanskar”.

Dwivedi contended that the core aspect of marriage remains and pointed at alimony, maintenance, divorce, inter caste and added that ultimately the marriages remain heterosexual marriages.

The bench observed that to state at the extreme that there was no fundamental right to marry under the Constitution would be far-fetched.

“What are the core elements of marriage? If you look at each element, each is protected by constitutional values,” it said.

The Chief Justice said one, marriage itself postulates two individuals to cohabit; two, marriage accompanies with it the existence of family; three, marriage has procreation as a very important ingredient; four, marriage in a significant way is exclusionary to all others; and five, social acceptance of existence of marriage.

The top court will continue to hear arguments in the post -lunch session.