'Right to marry' not a fundamental right: Centre to HC

"Right to marry" is not a fundamental right and does not come in the ambit of Right to Life under the Constitution, the Centre and Indian Army have told the Delhi High Court, asserting that there is no discrimination on the basis of marital status in the Judge Advocate General (JAG) department or any other stream of the force. The authorities stated this in an affidavit while seeking dismissal of a PIL challenging the restriction on married individuals from being considered for JAG department, the legal arm of the army.

The Centre said the restriction is imposed on both men and women as pre-commission training involves a high amount of physical and mental stress and once they are commissioned, there is no bar on marrying or having children. The affidavit went on to question the contention related to discrimination, saying

by that logic the difference between maternity leave and paternity leave durations and legal marriageable age for men and women would also be seen as violation of Article 14 related to Right to Equality. The affidavit was filed in response to the PIL filed by advocate Kush Kalra which has termed as "institutionalised discrimination" the restriction on married individuals from being considered for JAG.

"It is submitted that right to marry cannot be a right to life under Article 21. There is nowhere written or proved that that life of a person would be miserable or unhealthy without marriage," the affidavit said, adding the Constitution does not stipulate right to marry as a fundamental right. It said that till 2017, married women were not eligible for recruitment in JAG department while there was no such restriction on married men. This policy was challenged by Kalra in 2016 for being discriminatory to female candidates.

During the pendency of that petition, the government issued a corrigendum on August 14, 2017, amending the marital criterion according to which now only unmarried men and women were to be considered eligible for various entry schemes of army including JAG department. Kalra had withdrawn his earlier petition and filed a fresh one challenging the alleged "discrimination" towards married individuals and said the corrigendum curtailed the civilians' rights to marry after attaining the legal age.

The affidavit said if the petition is allowed the larger public interest would be overlooked for personal interest of a few people and "the effect shall be felt on the whole nation's security". It said there is no violation of Article 14 as the recruitment conditions related to marital status is uniformly applied not only for JAG entry but the entire army wherein only unmarried individuals are eligible to be commissioned in all streams.

The Centre and Army have also drawn an analogy between the eligibility conditions which are under challenge in the plea and the legal age of marriage in India under the provisions of the Prohibition of Child Marriage Act read with the Hindu Marriage Act. It said that a female is legally permitted for getting married at the age of 18 years, whereas, a male despite being eligible to vote at the age of 18, he is legally permitted to marry only at the age of 21.

"If we go with the analogy of the petitioner, a male is deprived of marriage for 3 years and the same is gross discrimination on the basis of gender. And further such reasonable restriction make them suffer for not getting married and deprive to spend matrimonial life for three years thus resulting in violation of Article 21," it said. It cited another example of government providing 730 days of child care leave to women employees and 180 days of maternity leave, be it civilian or defence personnel, while male employees do not get child care leave and just 15 days of paternity leave.

"If we go by the analogy of the petitioners, these may be challenged before the court saying it is discriminatory for male employees on the basis of gender. But, in fact, these are not discriminatory as the same is the requirement of our society to empower females for better and bright tomorrow," it said. The affidavit said both men and women are treated equally in the Army and granted equal opportunity in the matter of appointment.

"The condition of being unmarried for both males and female candidates aged between 21-27 years for grant of commission is restricted only for the period of recruitment and pre-commission training which involves a high amount of physical and mental stress, strain and rigours of military life. "Once the unmarried lady cadets and gentlemen cadets complete their training and are granted commission, there is no bar for getting married or its natural consequences viz pregnancy etc and service benefits viz maternity leave, child care leave, paternity leave or married accommodation etc. Thus there is no discrimination on the ground of marital status," it said.

The petition, filed through advocate Charu Wali Khanna, has questioned the basis for barring married persons from joining JAG when marital status is not an eligibility criteria for the "equally ranked" judiciary and Indian Civil Services. JAG is the legal advisor to the Chief of the Army Staff in matters of military, martial and international law. The plea has sought that the special army instructions of 1992 and 2017, which disentitle married women and married men respectively, from applying for JAG be declared as void.

(With inputs from agencies.)