The state government in Gujarat, India, recently tabled draft rules under the Gujarat Marriage Registration Act, 2006. It introduces parents’ consent as a mandatory requirement for the registration of consensual marriages between men and women of legal age. The Assistant Registrar of Marriages is required to notify the couple’s parents upon receiving a marriage registration application. While officials claim that these guidelines create a ‘strong armor‘ for women, such requirements impose paternalistic control over rights-bearing adults. Many have argued that such a law, if passed, may not withstand judicial scrutiny. In this piece, we argue that the judiciary has a chequered history in protecting the freedom to choose one’s own partner, and the expectation that it will meaningfully scrutinise legislative action in this regard might be misplaced.

In 2025, the Allahabad High Court took suo motu cognisance of what it viewed as a rise in fake temple societies that were issuing fabricated marriage certificates to eloping couples. According to the court, these fake certificates allowed them to circumvent statutory provisions, thereby degrading “the sanctity of marriage.” Earlier, registration of marriages required proof of age, birth, and marriage, along with three witnesses in the district where either spouse resided. The High Court restricted marriage registration to the couple’s or parents’ ordinary residence, requiring video recordings of the ceremony and the officiant’s physical presence at the registrar’s office. The registrar can waive these requirements only if family members are present during registration.

Through these guidelines, the court intends to protect minors from child marriage and potential sexual or labor exploitation. However, the court has imposed these restrictions upon all couples, including consenting adults. In doing so, it has significantly endangered inter-caste and inter-religious marriages, which may be solemnised against the consent of the families. The trajectory of the proposed Gujarat law is along similar lines—surveillance under the guise of protection. The dangers of mandating parental consent can act as a weapon in the hands of family members who often misuse the administrative machinery to threaten these couples with false kidnapping or abduction charges, something that has already been dissuaded by the Supreme Court in Lata Singh v State of UP.

Even when the outcome protected the freedom to choose a partner, the process of arriving at it was a punishment in itself. In Shafin Jahan v KM Ashokan, the Supreme Court held that the right to marry a person of one’s choice is part of the right to life (Article 21 of the Constitution of India). The court also cautioned against unbridled use of parens patriae jurisdiction by holding that it cannot be used to determine “the suitability of partners to a marital tie.” While the final decision was a welcome outcome and landmark precedent, the choice of the adult woman was subject to extraordinary scrutiny. The Kerala High Court had initially invalidated the voluntary marriage and granted custody to Hadiya’s father.  It took several months of hearings before the Supreme Court finally overruled the Kerala High Court’s decision.

These measures risk framing individuals, particularly women, as inherently vulnerable children of the state whose choices require supervision. This reinforces patriarchal control that undermines autonomy and dignity under the garb of welfare. Intimate relationships may often be sites of gender inequality and consequent power imbalances. While the state should address power imbalances, regulation must not convert into surveillance. Laws that question the choice of partner or mandate familial consent do not empower individuals. Even if the state creates such laws, the courts must fulfill their role as guardians of fundamental rights. This piece highlights that the courts have not always undertaken this task and many times even initiated paternalistic scrutiny. However, there are also instances where the courts have meaningfully examined law created by the State. In Safiya Sultana v. State of UP, the Allahabad High Court read the requirement of a thirty-day notice to the public before marriage under the Special Marriage Act 1954 as optional. It held that the mandatory application of these provisions violates the fundamental right to privacy and liberty, including the freedom to choose one’s partner without state interference. It also noted that such a notice requirement was peculiar to the SMA and no other personal laws required this. Therefore, courts ought to follow this trajectory and adopt robust methods to defend fundamental rights.