Supreme Court Dismisses Plea To Raise Age Of Marriage For Women As 21 Years, Says It's For Parliament To Decide

The Supreme Court on Monday refused to entertain a petition filed by Advocate Ashwini Upadhyay seeking uniform age of marriage for men and women. The petition was listed before a bench comprising Chief Justice DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala.

The petitioner argued that the distinction between the age of marriage for men (21 years) and women (18 years) was arbitrary and violated Articles 14, 15, and 21 of the Constitution. Upadhyay sought an increase in the age of marriage for women to 21 years, which would be on par with men. However, the bench clarified that the court cannot issue a mandamus for parliament to legislate, and that any change in legislation should be left to the parliament. Accordingly, the petition was dismissed. 

At the outset, CJI DY Chandrachud remarked–

"You're saying that women's (age for marriage) should not be 18, it should be 21. But if we strike down 18, there will be no age at all! Then even 5 year olds could get married."

However, Advocate Ashwini Upadhyay, stated– 

"I am saying that this 18 years and 21 years is arbitrary. There is already a legislation being argued in parliament."

Justice PS Narasimha questioned–

"If there is already a legislation being argued then why are you here?". In 2021, the Centre had introduced a bill in the Parliament to raise the age of marriage for women as 21 years. The bill is referred to a Parliamentary standing committee and is pending on the date.

At this juncture, Upadhyay requested the court to adjourn the matter as the petitioners weren't fully prepared. However, the bench declined the same. CJI DY Chandrachud, while dictating the order said–

"Petitioner urges that distinction between age of marriage between men and women is arbitrary and violative of Articles 14, 15, and 21 of Constitution. Petitioner seeks that women's age of marriage should be increased to 21 to be par with men. Striking down of provision will result in there being no age for marriage for women. Hence petitioner seeks a legislative amendment. This court cannot issue a mandamus for parliament to legislate. We decline this petition, leaving it open to petitioner to seek appropriate directions."

However, Advocate Upadhyay, in his quest to argue further, said–

"Just see the act, if your lordships strike it down then the age will automatically become 21 years for everyone...Section 5 of Hindu Marriage Act."

CJI DY Chandrachud was not satisfied and said–

"Mr Upadhyay, don't make a mockery of Article 32. There are some matters which are reserved for the parliament. We must defer to the parliament. We can't enact law here. We should not perceive that we're the exclusive custodian of constitution. Parliament is also a custodian."

When Upadhyay asked to be granted liberty to approach the law commission, CJI DY Chandrachud remarked–

"Are you prevented from approaching the law commission? No. Then why do we need to grant you liberty? The parliament has enough power. We don't need to tell the Parliament. The parliament can pass a law on its own."

Case Title: Ashwini Kumar Upadhyay v. UoI And Anr. TC(C) No. 3/2023

Citation : 2023 LiveLaw (SC) 143

For Petitioner(s) Mr. Ashwani Kumar Dubey, AOR WPC 551/2021 Ms. Vandana Sharma, AOR WPC 584/2022 Petitioner-in-person

For Respondent(s) Mr. Tushar Mehta, SG Mr. Gurmeet Singh Makker, AOR Dr. Arun Kumar Yadav, Adv. Mr. Rajat Nair, Adv. Mr. Rooh-e-hind Dua, Adv. Mr. Digvijay Dam, Adv. Mr. Pratyush Shrivastava, Adv. Mr. Tushar Mehta, Solicitor General Mr. Rajat Nair, Adv. Mrs. Deepabali Dutta, Adv. Mr. Digvijay Dam, Adv. Mrs. Rooh E Hina Dua, Adv. Mr. Arvind Kumar Sharma, AOR

Constitution of India- Article 32- It is trite law that this Court in the exercise of its jurisdiction under Article 32 of the Constitution cannot issue a mandamus to Parliament to legislate nor does it legislate. The constitutional power to legislate is entrusted to Parliament or, as the case may, the State Legislatures under Articles 245 and 246 of the Constitution - Supreme Court refuses to entertain pleas to increase age of marriage for women as 21 years.

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