Marriage Is Letting Us Down. Should There Be a Right Not to Marry?


Aug 20, 2023


Image Credit: Getty Images/Hitesh Sonar For The Swaddle

The recent proliferation of dating reality TV – like Indian Matchmaking, Jewish Matchmaking, Love is Blind – suggests that, for all its flaws, the enduring appeal of marriage remains untarnished. Statistically, it’s another story. Across the world, divorce rates have skyrocketed, people are marrying later in life or not at all and parenthood outside of marriage is becoming increasingly common

This is as true for India as anywhere else in the world. While the rate of change is slower here, the demography is still changing in the country. According to the 2011 Census, we now have at least 74.1 million single women (which includes never-married, divorced, and widowed women). This is a 39% increase from 2001. Yet this growing demographic remains mostly invisible within the socio-cultural and legal landscape.

Marriage in India is not simply a lifestyle choice. It is central to our idea of family; a gateway to social recognition, safety, respectability. Moreover, it gives one access to a whole host of rights and benefits – both tangible and intangible. 

It’s no wonder then that the LGBTIQ+ community is queuing up at the judiciary’s door to get a piece of the marital pie. In arguing for a universal right to marry, they are asking for a right to fully participate in society’s most revered institutions. We believe there ought to be a fundamental right to marry for all. 

However, there is a critical need to recognize a right to not marry as well

What does the Law Say?

Article 21 of the Indian Constitution guarantees a right to life and liberty under the Indian Constitution. As part of Article 21, one also has a right to intimacy and autonomy in their private lives. Therefore, not only should one have a right to marry anyone of their choice but, arguably, also a right to not marry as well. Yet, various social institutions – the family, media, society, the law – nudge one towards couplehood and eventually marriage by withholding benefits and rights from unmarried individuals. 

Take, for instance, the fact that unmarried persons cannot take a joint home loan with their partner. Unmarried couples, even if they have been together for many years, may not be able to access their partner’s pension since “family,” under Central Pension Rules, is defined as “spouse, children, parents and disabled siblings.” There is thus no provision to designate any other non-biological/non-marital kin or live-in partners within such a definition.

Further, while people can adopt in their individual capacity as a single man or a woman, as per Indian law, an unmarried couple, regardless of how long they have been together, cannot legally adopt a child as a couple. To complicate matters, the Central Adoption Resource Agency recently  issued a circular that explicitly states people in a live-in relationship cannot adopt a child with their partner. This is because a live-in relationship is not considered “stable.” This highlights how a couple has little choice but to get married if they want to have children together. Even in the case where an unmarried couple has a biological child, it is harder for the father to establish guardianship outside marriage, since the mother and not the father, is considered the natural guardian of illegitimate children under Hindu law

Apart from unmarried couples, even meaningful relationships with friends or any other non-biological kin are not considered at par with the heterosexual marital family. This is especially detrimental for those who are estranged from their natal families and seek support outside their biological kin and natal families. 

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“I have my queer-trans kinship that provides nourishing relationships. I cannot put those on official papers, they have to be hidden. So the violence [from my family] is a daily thing, much more perpetual. There are no templates for the future we are likely to live, so we have to keep coming together to make them,” notes Lehar, a non-binary person, in a 2023 report documenting the experiences of familial violence in the lives of queer and trans persons. 

“I don’t think I want to get married, but beyond that what can one do? There are intricate things like bank accounts, insurance etc. If I am hospitalised, who will take care of me? I am here because my chosen family exists and because we help each other every day.”

This underscores how amatonormativity, or the assumption that everyone desires an exclusive romantic partnership, is a seldom recognized form of discrimination within the law. The social policies mentioned above and labour laws assume that single individuals only have natal family members as significant relations. That their lives could have a rich social or emotional ecosystem outside of biological relations is not considered a possibility by the state. 

The right not to marry, therefore, is more than just a polemic. It is a fundamental freedom that is essential and relevant to the everyday lives of countless Indians.

What legal, social, and economic structures would have to be put in place to ensure that marriage feels like a genuine choice and not an oppressive compulsion? 

This is the question posed by the petitioners in Rituparna Borah v. Union of India, a petition in the marriage equality case. Filed by queer activists and couples, this petition demanded recognition of chosen families and the ability to designate them as next of kin for those who didn’t want to or were unable to get married. 

What would a right to not marry look like?

We contend that a right not to marry has three facets: protection against forced marriage; legal options for atypical and queer families; and access to existing social safety nets for those who never marry. 

First, a right not to marry would entail freedom from parental and social pressure to get married, while also protecting life, safety, and health of unmarried persons. Forced marriage and parental pressure to get married is common in India, especially in the case of queer people. Nivedita and Nitya, for instance, had to consult a psychologist to deal with the mental health issues they faced from parental pressure to get married. 

“I am getting depressed and sometimes feel like hurting myself now. I wish I had the courage to run away as far as I could and never return here,” a 33-year-old Indian man posted on Reddit, speaking about the parental pressure to get married. In Bihar, pakadwa vivahwhere a groom is kidnapped and married at gunpoint – is widely prevalent. Right-wing vigilante groups all over the country coerce young couples found in public spaces during Valentine’s day to get married. A broader socio-cultural and legal recognition of a right to not marry is therefore important, as it would provide recourse to state protection and social services for such people who have been forced.

It is also important for the right not to marry to lie in the hands of the individual who doesn’t want to marry – and not in those of parents or families who want to force inter-caste/inter-religious couples apart. 

Second, a right to not marry would provide alternative legal and administrative options for recognizing non-normative and queer families, especially when it comes to parenthood. Laws of parenthood need to be decoupled from marital status, thus creating a more inclusive legal framework for parenthood and childcare. As Chief Justice D.Y. Chandrachud himself noted in a previous case, atypical or queer families not only need protection but also recognition. 

Finally, such a right would ensure equitable access to available social safety nets. The cis-heterosexual family acts as a safety net for individuals if they are unemployed, homeless, old, or sick. For people who are never married, this safety net is often missing, especially in cases where they outlive their parents or are estranged from other natal kin. Some such people, especially urban middle-class professionals, are able to create a network of friends and community for support during times of illness and/or old age. 

For instance, 49-year-old Ratna who lives alone and who has vertigo, hypertension, diabetes, and cervical spondylitis, noted during the lockdown in 2020: “People help us in different ways… I have a very good circle of friends so that aspect is taken care of.” 

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Yet, such a network of friends and community would find no recognition in laws and policies on social security provided by the government. For instance, in the Code on Social Security, 2020 and the Occupational Safety, Health and Working Condition Codes, 2020, “family” is defined to include only bonds of marriage and natal kinship. Similarly, schemes such as the Pradhan Mantri Shram Yogi Maan-Dhan Yojana and the Pradhan Mantri Laghu Vyapari Maan-Dhan Yojana, lists spouses as the only eligible beneficiary on their websites. While urban, educated professionals might have the means to live alone, it is often those from socio-economically weaker sections and/or rural areas who are worst hit and sometimes unable to create an alternative network outside the heteronormative family. 

Illustrated writer Bama (2019) recounts her harrowing experiences of being Dalit, never married, and living alone in a village: “I have found, again and again, that a single woman without much connection to her family is put to the severest test at the time of serious illness. I experienced this when I was reduced to immobility on account of severe chikungunya which lasted for quite some time. Unable to walk, I had to crawl like a baby on all fours. Except for a friend of mine and my younger brother who assisted me for some time, I was left to fend for myself…” 

We argue that a right not to marry would enable unmarried individuals like Bama, Ratna, Nivedita, and Nitya equitable access to existing safety nets, while protecting their safety, health, and life. Research has shown that in countries where the State provides a safety net (rather than solely the family), people are more likely to be happily single and thrive. The role of the State and the law needs to be rethought in the case of the rising demographic of single individuals in India.

Recognizing a right not to marry within legal jurisprudence would embolden those who wish to resist pressure to marry (at any age). It could also help queer and single individuals forge a meaningful life outside of marriage by fostering genuine legal options to recognize their chosen families while also enabling access to safety nets.

These legal changes are important and urgently required, given the rapid shift within the Indian demography. 


Written By Diksha Sanyal & Ketaki Chowkhani

Diksha Sanyal is an Assistant Professor of Law at Jindal Global Law School. She researches and writes on themes within Family Law, Gender and Queer Jurisprudence.

Dr Ketaki Chowkhani is Assistant Professor of Sociology at Manipal Centre for Humanities. Manipal Academy of Higher Education, Manipal, India. She teaches India’s first ever course on Singles Studies. Her writing on gender, sexuality, and singlehood has appeared in the Indian Journal of Medical Ethics, New York Times, Square Peg, The Hindu, Journal of Porn Studies, in edited volumes published by Routledge and Cambridge University Press, In Plainspeak, Teacher Plus, DNA, Kafila.online, and Roundtable India.


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