ENGLISH ASSIGEMENTNAME- PRAGATI ANAND
CLASS- B.A LL.B 2ND YEAR
RIGHT TO MARRIAGE
Marriage is an institution which admits men and women to family life. Marriage is different around the world and varies in different cultures. Same sex marriage is now recognized and legal in countries such as Brazil, Ireland, France, South Africa, New Zealand USA etc. Earlier same sex was not recognized and legal in INDIA but on 06th September 2018 a five judge constitution bench of supreme court decriminalized homosexuality by partially striking down the colonial era provisions of section 377 of the Indian Penal Code. It is a stable relationship in which a man and a woman are socially permitted to have children implying the right to sexual relations. There are various forms of marriage like POLYANDRY, POLYGYNY, MONOGAMY, COMPANIONATE MARRIAGE etc.
CONCEPT, MEANING AND DEFINITION
Marriage is one of the universal social institution . It is a corner stone of society.
According to Oxford – Marriage is a legally and formally recognized union between two people as partners in a relationship some jurisdiction specifically a union between a man and a women.
According to Horton and Hunt – Marriage is the approved social pattern whereby two or more persons establish a family.
The word ” marriage” derives from Middle English marriage , which first appears in 1250–1300 CE. This in turn is derived from Old French, marier (to marry), and ultimately Latin, maritare , meaning to provide with a husband or wife and maritari meaning to get married.
The Births, Deaths and Marriages Registration Act, 1886 provided for voluntary registration of births and deaths only for certain classes of people and also made a provision for effective registration of marriages under the Indian Christian Marriages Act, 1872 and the parsi Marriage and Divorce Act, 1936. The said Acts have been subjected to revisions and amendments from time to time since independence. While provisions for registration exist under various laws- such as the Hindu Marriages Act, 1955, the Special Marriages Act, 1954, the Parsi Marriages and Divorce Act, 1936 and the Indian Christian Marriages Act, 1872, however, there is no provision that provides for simply keeping a record of all marriages and is available to any and every individual in the country regardless of religion, region or customs. The Special Marriage Act 1954, laid down a procedurefor registration but the Act was primarily intended to enable couples to opt out of personal laws, but this did not, however, imply that the couple has opted out of religion. It simply meant that religion has no relevance for registration of a marriage under this Act. Though the Registration of Births and Deaths (Amendment) Bill, 1969 was introduced to include the registration of marriages, it did not cover all citizens. These amendments applied only to the Christian community and it once again remained short of becoming a national legislation. India signed the Convention on the Elimination of All Forms of Discrimination against Women on 30 June 1980 and ratified it on 9 July 1993. After that India was expected to submit its report to the Committee on Elimination of Discrimination against Women (CEDAW). The first report was submitted in 1998. The combined fourth and fifth periodic reports were submitted in 2012. The Committee, in its concluding observations on this report in the year 2014, in para 39, urged India to speedily enact legislation to require compulsory registration of all marriages and simultaneously requested to consider to withdraw its declaration to Article 16 (2) of the Convention.
The right to marry is a component of right to life under article 21 of constitution of India which says “no person shall be deprived of his life and personal liberty except according to procedure established by law”. Under section 5 of Hindu marriage act of 1955 there are certain conditions which are to be fulfilled
Neither party has a spouse living at the time of the marriage
Neither party is an idiot or a lunatic at the time of the marriage
The bridegroom has completed the age of 18 and the age of 15 years at the time of the marriage. it has been raised to 21 and 18 years respectively etc.
HUMAN RIGHTS PERSPECTIVE
After attaining the legal age for marriage everyone should be given the right to marriage as desired which should be free from sex, religion ,caste etc. Free entry and exit in marriage is given to both men and women.
PROVISION ALONG IPC
There are following provisions in the IPC dealing with the offences relating to marriage
COHABITATION – caused by a man deceitfully inducing a belief of lawful marriage (S. 493). (Ten years and fine).
Dishonestly or fraudulently going through a marriage ceremony knowing that no
lawful marriage is hereby created (S. 496) (7 years and fine).
BIGAMY- marriage again during the lifetime of the husband or wife where such marriage is void (S. 494) (7 years and fine).
Adultery (S. 497) (5 years or fine or both) etc.
There are several laws in INDIA which is different from other countries in relation to right to marriage , for marriage the legal age for marrying for men and women is 21 and 18 respectively whereas in JAPAN the legal age to marry for male is 18 and for women it is 16.
LAW COMMISION REPORT
The 18 law commission of India began its work from the latest reference received from the government ,the commission studied all the evil matters relating to marriage and come up with decision that there should be “compulsory registration of marriage”.
The case of Hadiya has stirred a fresh row over a woman’s right to marry the person of her choice in India. Hadiya’s right to marry by her choice was challenged by her parents in the Kerala High Court. The state High Court upheld her father’s right over her choice and gave her custody to her father despite the fact that she is 25 years old.The case has been termed as the ‘love jihad’ case as Hadiya, who previously was a Hindu, converted to Islam to marry a Muslim man. Her father filed a habeas corpus petition in Kerala High Court under Article 226 of the Constitution after she got married, stating that she was brainwashed by some religious fanatics. Hadiya was 25 years old when she got married but the Kerala High Court annulled her marriage in May 2017 terming her weak and vulnerable. The High Court’s decision was challenged by Hadiya’s husband, who filed a special leave petition in the Supreme Court, that ordered a NIA probe in the matter. Recently, on November 27, the apex court took Hadiya’s testimony in open court and freed her from her father’s custody. The Supreme Court allowed Hadiya to continue her studies in a Salem college and to live with her husband. Hadiya’s case has made everybody question the actual applicability and acceptability of right to marry in India. Rights of women in India are still subject to ignorance as majority overlook women’s right to choice and consent when it comes to marriage.
LATA SINGH V. STATE OF UTTAR PRADESH
The court said that this is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste marriage the maximum they can do is that they can cut off social relations with the son or daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter caste marriage”.
Marriage is a beautiful bond between two partners and everyone should be given the right to choose their respective partners and have to right to marriage free from sex ,caste, religion etc.
Legally, every young person has right to marry and to enter into a marriage contract. But unlike any commercial contract, responsibilities of the contract of marriage are not limited only within the contractual parties. Marriage is the foundation of a family as well as social relations. Right to marry is not an absolute one; it has to correspond to some other duties. Right to marriage is provided under human right charter that to under the heading of” Right to have family”. In Indian Constitution this right not expressly mention .But it is interpreted under Art 21 .right to marry is universal right .it is available to all persons but whether it includes same sex marriage. Marriage right is recognized at international level but in India there is no special law for marriage right .marriage right is mentioned under various covenant but it does not include person of same sex marriage. Indian constitution provides for right to marry but it is not fundamental right.