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Marriage: A Fundamental Right?

  • Published
    10th May, 2023
Context
  • Recently, Supreme Court said that there is no fundamental right to marry under the Constitution, but the core aspects of marriage are safeguarded by constitutional values.

Key highlights:

  • Marriage postulates the right of individuals to cohabit; marriage accompanies with it the notion of existence of a family unit, which is directly owes its existence to Constitutional values.
  • Marriage has procreation very important ingredient, though equally we must be cognizant of the fact that validity or legality or social acceptance of marriage is not conditional only upon procreation for the reason that people may not want to have children.
  • They may not have the ability to have children or they may get married at an age they cannot have children.
  • The marriage is exclusionary of all others, “Two people who come together or cohabit are entitled to exclude everyone else from that area of marriage.”
  • The State has a legitimate interest in regulating marriage, according to constitution, “We must accept as a basic proposition that marriage is something which is entitled to Constitutional protection, it’s not just a statutory recognition.

Homosexual Marriage:

  • Navtej Singh Johar v. Union of India Case: SC struck down part of Section 377 stating that choosing a partner is every person’s Fundamental Right.
  • The choice of whom to partner, the ability to find fulfillment in sexual intimacies and the right not to be subjected to discriminatory behavior are intrinsic to the constitutional protection of sexual orientation.
  • Article 21 guarantees the right to life and liberty.
  • However, it only recognised an LGBTQIA+ person’s ‘right to love’, it did not recognize their ‘right to marry’.
  • Hindu Marriage Act (HMA): Personal affairs such as marriage and divorce are governed by laws specific to communities in India.
  • HMA applies to Buddhists, Sikhs, Jains, and all the sects of Hinduism. HMA does not distinguish between heterosexual and homosexual marriages.
  • Special Marriage Act: Section 4(c) of the Special Marriage Act, 1954, discriminates against same-sex couples. The provision only recognises marriage between a ‘male’ and a ‘female’.

Special Marriage Act (SMA), 1954

  • The Act is an Indian law that provides a legal framework for the marriage of people belonging to different religions or castes.
  • It governs a civil marriage where the state sanctions the marriage rather than the religion.
  • The Indian system, where both civil and religious marriages are recognised, is similar to the laws in the UK’s Marriage Act of 1949.
  • The applicability of the Act extends to the people of all faiths, including Hindus, Muslims, Sikhs, Christians, Sikhs, Jains, and Buddhists, across India.
  • SMA grants same-sex marriage rights.
  • The heterosexual couples have a right to marry in accordance with their custom, personal law and religion - “that is the foundation of their right.”

Recognition of Marriage:

  • The Act provides for the registration of marriages, which gives legal recognition to the marriage and provides a number of legal benefits and protections to the couple, such as inheritance rights, succession rights, and social security benefits.
  • It forbids polygamy and declares a marriage null and void if either party had a spouse living at the time of the marriage or if either of them is incapable of giving a valid consent to the marriage due to unsoundness of mind.
  • Age Limit: The minimum age to get married under the SMA is 21 years for males and 18 years for females.

Differentiation from Personal Laws:

  • Personal laws, such as the Muslim Marriage Act of 1954 and the Hindu Marriage Act of 1955, compel either spouse to convert to the other's religion before marriage.
  • The SMA, on the other hand, allows marriage between interfaith or inter-caste couples without requiring them to give up their religious identity or convert.
  • However, according to the SMA, once married, an individual is considered severed from the family in terms of rights such as the right to inherit.

Inherent Rights:

  • Right to speak
  • Right to associate

Is an Article 21 granted the right to marriage?

  • The freedom of choice in marriage in accordance with law is an intrinsic part of Article 21 of the Constitution and “questions of faith” have no bearing on a person's freedom to choose a life partner which is the essence of personal liberty.
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