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The Fundamental Right To Marry and Same-Sex Couples In India



AUTHOR- Muskan Pipania

DESIGNATION- Student, Dr. Ram Manohar Lohiya National Law University

EMAIL ID- pipania98@gmail.com


Introduction

Marriage is considered to be a sacrosanct institution in India, which gives a sense of belongingness to two individuals who wish to spend their lives together. It is defined as the legally or formally recognized union of two people as partners in a personal relationship.

In the landmark judgment, Lata Singh v. State of Uttar Pradesh, the Supreme Court of India held that Right to marriage is a fundamental Right under Article 21 of the Constitution, if both the parties are adults i.e. of marriageable age as decided by the law, they are free to marry. Moreover, the court held that there is no bar to inter-caste marriage.

Furthermore, again in the infamous Hadiya Marriage Case, the Supreme Court delivered its judgment stating that it is a right of every individual to marry. Therefore, Right to marry is a part of Right to Life guaranteed under Chapter 3, Article 21 of Our Constitution.


Right to Marry in Indian Context-

Hindu Marriage Act was enacted by the parliament in 1955, in order to codify the laws regarding marriage between the two Hindus. According to the Act, marriage is more of a sacrament than a contract i.e. it is deemed as a Holy Union. Whereas, under Muslim Law, Quran states that “every person must marry”, even though the Muslim Law is not codified, marriage or a ‘Nikha’ is defined to be a contract.


Right to Marry in International Context-

The right to marriage is also, stated under Human Rights Charter within the meaning of the right to start a family. The rights espoused in the UN Charter is codified in the International Bill of Human Rights comprised of Universal Declaration of Human Rights (UDHR); International covenant on Civil and Political Rights (ICCPR) and International Covenant of Economic, Social and Cultural Right (ICESCR).

Moreover, Article 16 of the Universal Declaration of Human Rights (UDHR) states that parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and ensure that every individual whether men or women has a right to enter into marriage and have a right to freely choose a spouse and enter into marriage only with their free and full consent.

Whereas, Article 23 of the International covenant on Civil and Political Rights (ICCPR) states that every men and women has a right to marry and form a family, taken into consideration that men or women is of marriageable age. In addition to it, International Covenant on Economic, Social and Cultural Right in its Article 10, provides widest possible protection and assistance to the family which is the natural and fundamental group unit of society, particularly for its establishment.

Finally, under section 12 of the European Convention on Human Rights every Men and women of marriageable age shall have the right to marry and to find a family according to National Laws governing the exercise of this right.


Same sex Marriages

It has been three years since the landmark judgment of Navtej Singh Johar v. Union of India, hereinafter referred to as 'The Judgment' which de-criminalized homosexuality from the Indian Penal Code. However, even today, the LGBTQI+ communities are fighting for their rights within the country, one such right being legalization of same-sex marriages.

As each and every individual has a right to choose their partner, homosexuals cannot be denied of this right only on the basis of their sexual orientation. According to Section 5 of the Hindu Marriage Act 1955, a marriage can be solemnized between “two Hindu” if the conditions which are mentioned in the Act are satisfied. However, nowhere in this section, it is mentioned that marriage ought to be solemnized between “man and woman” only. Likewise, Section 4 of the Special Marriage Act 1954, states the condition for the solemnization of the marriage which is between “two individuals”. Thus, just by reading these sections of the respective acts, we can say that none of the two acts sets down any sort of discrimination between homosexual and heterosexual couples and yet same-sex couple cannot get their marriages registered. This absence of recognition of the marriages of same-sex couples deprives them of a heap of rights which comes along with marital status and this has to change.


Conclusion

The Right to Marry is a fundamental right of every to marry a person of their choosing. However, the requirement laid down by domestic Laws have to be complied with, viz- parties to marriage should be of marriageable age and their consent to get married should be free and full. There are No restrictions as to inter-caste or same sex marriages. There are countries all around the globe which have given legal recognition to same-sex marriages, therefore, India shall also take a step towards building a more progressive society. Right to get married is recognized at International level but in India there is No special law for the same, although, this right is interpreted under Article 21 of the Indian Constitution.





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