Right to Marry

Marriage is believed to be a very important aspect in Human Life and is termed as universal social institution. It is often said to regulate a man’s life and a keystone to the society. To define marriage in simple words, it can be termed as a legal union of a man and a woman into a husband and a wife, respectively. The purpose of marriage is to spiritually, emotionally and physically unite a man and a woman together, as husband and wife, in a covenantal relationship between themselves and their Creator. Spiritually in the sense to get spiritual benefit by performing religious duties. The dictionary defines marriage as “The legal union of a man and woman as husband and wife.” The definition of marriage can be looked at from a legal perspective. A legal dictionary defines marriage as “the state of being united to a person of the opposite sex as husband or wife in a legal, consensual, and contractual relationship recognized and sanctioned by and dissolvable only by law.” Legally, marriage is a binding contract between the two parties that joins together their possessions, income, and lives.

The preamble to the Universal Declaration of Human Rights, 1948, holds that there’s a number of rights involved, such as right to enter into marriage, right to choose one’s spouse, right to equal personal rights between the husband and wife and so on. Similarly, the article 23 of International Covenant on Civil and Political Rights, 1966 conferred another set of rights such as right of marriageable age, family as the fundamental unit of any society and so on. In Indian scenario, right to marry is part of Article 21 in the Constitution. Marriage is a social contract but unlike a normal contract between two parties, a couple would owe a great deal of responsibility to the family and society. Marriage is to hold at least six of Hohfeld’s relations namely; power, claims, immunities, duties and liabilities. Using Hohfeld’s Analysis, it is safe to say that the right to marry is not very absolute and it has to correspond to some other duties.

Hohfeld in his theory, identifies and determines eight fundamental legal concepts, namely- rights, privilege, power, immunity, no-rights, duty, disability and liability. He then proceeds to arrange them as ‘jural opposites’ and ‘jural correlatives’ and explains their practical application. Professor Hohfeld in his analysis theory raises a sense of jural correlation between the terms ‘right’ and ‘duty’. According to him, the term “right” forms the basis at which the law is created and these legal rights further denote the ability of the person or persons having such rights to control the acts or forbearances of another person, with the help of the power vested in them by the state.

More elaborately, he denotes the word “right” to be generically and indiscriminately inclusive of highlighting any sort of legal advantage, whether claim, privilege, power or immunity.

The term “right” can be understood to have a narrow sense of correlativity in terms of rights to marry where the ‘rights’ are separate and distinct from those of privilege, power and immunity. He states that previous theories of the right to marry could be viewed as a negative liberty right or an equality right. However, in his opinion such an explanation is unsatisfactory, primarily due to the fact that they fail to justify the existing connection between intimate liberty and marriage law. The right to marry is in turn a positive right, but one of a specific kind. It is a “power right,” a right to create legal duties for intimate relationships. To view the right simply as a means to promote valuable relationships is increasingly myopic and it is necessary to ensure the factor of equal liberty between the individuals. Additionally, he states that since relationships might carry open-ended commitments that threaten to subordinate the partners to one another, it is crucial that a right to legal marriage is viewed as a necessary means to reconcile intimate liberty with equality. 

Right to marry is a choice.

The principle of right-duty states that right and duty are correlative i.e., a right shall have a corresponding duty. Applying the same in case of right to marry would mean that a person would have a right to marry and that some other person would have the duty to marry the said person which is against basic moral and social principles and therefore unacceptable. In other words, If the right-duty principle is applied then you should say that if i have a right to marry then someone else has a duty to marry me, which is incorrect. Therefore, the principle of right-duty cannot be applied to the right to marry. Therefore, the principle of right-duty cannot be applied to the right to marry. 

Privilege basically means a liberty or freedom which is available to a citizen which is not enforced by any legislation or right thus, if a person has a privilege, it shall not amount to a right and thus no right. In the given case right to marry can be considered as privilege as a marriage is a choice and one has the liberty and freedom to marry a person of their choice and even chose not to marry. No right can be applied to the right to marry. We have a right to marry and have a choice to marry or not. Marriage is privilege only to a point that liberty is legitimately exercised. Muslim marriages are contracts, the liberty domain exists so it’s a privilege. Thus, we can say that the principle of privilege and no right can be applied to the concept of right to marry.

Power-liability relation does not apply in the right to marry. Power is something conferred upon a person by the law where he/she can alter the legal relations or rights or duties of himself or others. The correlative of a power is a liability. If one person has the power, the other person has the liability.  the legal condition of the person with liability can be altered by the person with power. here, in the right to marry, power-liability cannot be applied because one spouse does not have the power over the other and one spouse is not liable to the other.


Author: Shreya V. Raju from School of Law, Christ University.


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