On February 20, the Supreme Court rejected a petition advocate Ashwini Upadhyay submitted in favour of equal marriage age for men and women. A bench made up of Chief Justice DY Chandrachud, Judge PS Narasimha, and Justice JB Pardiwala was presented with the plea. 

According to the petitioner, the difference between the legal age of marriage for men and women—21 years old for men and 18 years old for women—is arbitrary and goes against Articles 14, 15, and 21 of the Constitution. Upadhyay advocated raising the marriage age for women to 21 years old, making it the same as for men. The bench stressed that any changes to the law should be left to the parliament and that the court cannot issue a mandamus compelling the legislature to pass new laws. Hence, 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."

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."

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. 
Citation: TC(C) No. 3/2023