– Ishan Anand
Research objective
The research objectives for this paper titled “A Critical Analysis of the Right to Marry: Legal and Sociological Perspective” would typically outline the specific goals and aims of the research.
- To Examine the Historical Evolution:
To provide a comprehensive historical overview of the right to marry, tracing its development from ancient practices to modern legal frameworks.
- Analyze Legal Frameworks:
To critically analyze the legal frameworks surrounding the right to marry in various countries, including the recognition of same-sex marriage, minimum age requirements, and restrictions based on gender, religion, or nationality.
- Contribute to Academic Discourse:
To contribute to the academic discourse on the right to marry by offering a critical analysis that integrates legal and sociological perspectives.
- Provide a Holistic Understanding:
To offer readers a holistic understanding of the right to marry, taking into account its legal, social, cultural, and human rights dimensions.
Research question
“Is it conceivable to broaden the scope of the right to marry, particularly within a societal context like that of India, to encompass same-sex marriages?”
Table of Contents
Abstract………………………………………………………………………………….. 2
Introduction……………………………………………………………………………. 3
Right Of Marriage, around the world, & in India…………………….. 4
Historical Evolution of Marriage in India………………………………… 7
Relationships in Ancient India: Beyond Heteronormativity…………. 8
Aspects of the Right to Marriage in India……………………………….. 10
Forced marriages………………………………………………………………… 11
Child Marriages as a type of forced marriage…………………………. 12
Questioning the Fundamental Right to Marry………………………… 14
Broadening the scope of the right to marry…………………………….. 15
Arguments for same-sex marriage………………………………………….. 15
Special Marriages Act as a remedy to same-sex marriage………… 17
Conclusion…………………………………………………………………………….. 17
Abstract
The institution of marriage has served as one of the core components of human civilization
for countless generations. It is not just a social covenant, but also an agreement under law
with significant privileges, duties, and implications that affect both people and the
community as a whole.
The right to marry is an inalienable human right that has evolved gradually through time,
reflecting the transforming cultural traditions, legal systems, and private interests.
Loving v. Virginia, a historic United Supreme Court case, rendered various state statutes that
prohibited marriages between individuals of different racial backgrounds null and void.
An excerpt of that judgement reads,
“The freedom to marry has long been recognized as one of the vital personal rights essential
to the orderly pursuit of happiness by free men. Marriage is one of the basic civil rights of
man, fundamental to our very existence and survival.”
Article 21 of the Indian Constitution protects the right to marry the person of one’s own
choice, under the right to life and liberty. This right can only be revoked by legislation that
is both in substance and procedure just, equitable, and reasonable.
The decision of Lata Singh v. State of U. P. is the first such instance, in which the Supreme
The court held that an individual who is not a minor has the right to marry anyone they want.
When seen through the lens of nations such as India, where marriage appears to be
unavoidable, particularly for women, the expression “Right to marry” appears ironic .Women are forced to marry at relatively young ages here due to societal and cultural pressure,
leaving them with no other options.
This academic inquiry investigates the right to marry from legal and sociological
perspectives, covering its historical evolution, legal underpinnings, societal repercussions,
and contemporary impediments.
Introduction
Marriage is a long-standing custom that is observed in practically all societies around the world. According to sociological theories, marriage is one of the most significant social structures in any civilization because it fosters the development of families, which are the fundamental building blocks of all societies.
The institution of marriage in India dates back to the Vedic era, which was around 1500 and 500 BCE. At that time, sacred hymns and rituals governed marriage. The majority of marriages were arranged, with parents playing a significant role in pairing their children with compatible partners. Caste, status, and astrological compatibility were widely used as criteria. The idea of “Swayamvara” (competition ceremony) developed centuries later, during the Gupta Empire (4th to 6th century CE), allowing brides to select their bridegroom. In writings like the Manusmriti, which described the obligations of husbands and spouses, marriage regulations were also formalized during this time[1].
Marriage was largely a social and economic agreement between families in many pre-modern and ancient societies. It was frequently organized by parents and used as a tool to solidify power, wealth, and relationships. Significant changes in marriage laws occurred during the 19th century, with many Western cultures moving towards more liberal and inclusive marriage rules. The idea of “love marriages,” in which people select their spouses based on personal passion, spread.
Marriage rights were expanded over the 20th century, leading to the historic Loving v. Virginia decision by the U.S. Supreme Court in 1967 that overturned state laws that forbade interracial unions. The legalization of same-sex marriage in many nations in the twenty-first century marked a significant advance in the acceptance of the freedom to marry regardless of gender.
Marriage rights have developed further in the twenty-first century, with an increasing focus on gender equality and personal preference. Since, marriage should be a fundamental right for everyone, regardless of sexual orientation, several nations have legalized same-sex unions.
Marriage is understood as a sacrament in Indian society and is considered very auspicious, ranging from Brahma marriages which was the only acceptable form of marriage to live-in relationships which have been protected by the court. In the classical Hindu law era, the consent of the parties was not as material as it is in current times.[2] The bride was married by way of consent of the family, especially the father. However, with the coming of the idea of individual rights, marriage was seen to be valid when both parties to the marriage freely consented to it. This concept of consent also covers in its ambit, the right to choose one’s own partner and the umbrella right to marry. According to Indian society, a marriage is a bond between two families rather than a union of two individuals, symbolizing the merger of their values, customs, and money. Due to this, even in the 21st century, when we have advanced so far in society, choosing a spouse frequently comes with a lot of limits and conditions that are supported not just by legal but by social consequences.
Although it does have a mention in international treaties like the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, etc., the right to marry a partner of one’s choice is not officially stated in the Constitution of India. It is noteworthy, however, that the Indian judiciary has consistently asserted that the right to marry and to select one’s life partner are inherent components of the Right to life and personal liberty, as enunciated within Article 21 of the Constitution. An illustration of this legal doctrine can be observed in the landmark case of Lata Singh v. State of U. P[3], wherein the Supreme Court rendered a verdict affirming the prerogative of individuals, who have reached the age of majority, to marry the person of their choosing.
Right Of Marriage, around the world, & in India
Numerous international human rights instruments and declarations explicitly recognize the
fundamental human right to marry.
These encompass:
1. The Universal Declaration of Human Rights (UDHR)[4]:
Adopted by the United Nations General Assembly in 1948, Article 16 of the UDHR declares that individuals of full age, regardless of race, nationality, or religious affiliation, have the liberty to marry and establish a family, securing equal privileges throughout the marriage, and upon its dissolution.
2. The International Covenant on Civil and Political Rights (ICCPR)[5]:
Enforced since 1976, the ICCPR similarly acknowledges the right to marry. Article 23 of the ICCPR affirms that both men and women of marriageable age hold the right to wed and form a family.
3. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW):
Ratified in 1979, CEDAW explicitly addresses concerns pertaining to marriage and family, emphasising gender equality within the context of matrimonial and familial relationships.
Article 16 states the right of women to choose to enter into a marriage.
4. The American Convention on Human Rights (Pact of San José):
Article 17 of this convention, adopted in 1969, recognizes the right of marriage.
These international agreements affirm the core principle that the right to marry is an inherent human right, deserving of protection, without discrimination based on factors such as race, nationality, religion, or gender. While upholding this fundamental right, these instruments also stress the importance of entering into marriage through the voluntary and mutual consent of both parties and ensure that both spouses enjoy equal rights within the marital union.
The status of the right to marry within common law jurisdictions exhibits a degree of variability. Nonetheless, the prevailing consensus across these jurisdictions holds the right to marry as an intrinsic and legal entitlement.
It is important to acknowledge that while this fundamental right is a common thread, there are nuanced disparities in statutory provisions and judicial pronouncements.
A comprehensive overview of the right to marriage in select common law countries is as follows:
1. United Kingdom (UK):
In the UK, the privilege to wed is considered a fundamental entitlement, safeguarded by the European Convention on Human Rights (ECHR), specifically within Article 12. The UK Human Rights Act 1998 integrates the ECHR into domestic law, making it enforceable in national courts.
Noteworthy Legal Precedent: The case of Wilkinson v. Kitzinger (2006)[6] in the UK confirmed the protection of same-sex matrimony under Article 12 of the ECHR.
2. United States:
In the United States, the right to marry is firmly established as a fundamental liberty. The landmark ruling in Loving v. Virginia (1967)[7] solidified the concept that marriage is an inherent right supported by the U.S. Constitution.
Key Legal Decision: Obergefell v. Hodges (2015)[8] affirmed the right to same-sex marriage in the United States, extending its recognition to same-sex couples.
3. Canada:
Canada unequivocally acknowledges the right to marry as a fundamental entitlement, enshrined within the Canadian Charter of Rights and Freedoms.
Section 15 of the Charter assures equality rights, including the right to marry without any form of discrimination.
Notable Legal Precedent: The Reference re Same-Sex Marriage (2004)[9] upheld the right of same-sex couples to marry in Canada. Subsequently, the Civil Marriage Act, 2005, modified the marriage definition to encompass all genders, enabling same-sex couples to marry legally nationwide.
4. Australia:
In Australia, the right to marry is considered a fundamental entitlement, protected under the Marriage Act 1961.
The Australian Parliament, in 2017, amended this legislation to embrace same-sex marriage, recognizing the right of same-sex couples to enter into matrimony.
Significant Legislative Change: The Marriage Act 1961 now allows same-sex marriage.
5. Ireland:
Ireland upholds the right to marry as a fundamental entitlement, enshrined within its constitution.
In 2015, the nation altered its constitution to allow for same-sex marriage.
Key Referendum: The Marriage Equality Referendum in 2015 modified the Irish Constitution to acknowledge the legality of same-sex marriage.
6. South Africa:
The right to marry is protected by the South African Constitution, and the nation was among the early adopters of same-sex marriage, legalizing it through the Civil Union Act, 2006.
Critical Legislative Provision: The Civil Union Act, 2006, permits same-sex marriage in South Africa.
7. Trinidad and Tobago:
The right to marry is considered a fundamental entitlement and is safeguarded under the Trinidad and Tobago Constitution.
These nations, adhering to common law legal systems, consistently uphold the right to marry as a fundamental and legal right, typically under the aegis of their respective constitutional and statutory frameworks. It is imperative to acknowledge that the specifics of statutory provisions and judicial rulings may undergo evolution over time, and individual common law jurisdictions may possess distinctive legal frameworks and interpretations regarding the right to marry.
Historical Evolution of Marriage in India
The institution of marriage in India boasts a multifaceted and intricate historical journey that has continually transformed across millennia. Marriage in India transcends mere legal or religious confines; it is a profoundly ingrained social and cultural institution interwoven with the very fabric of Indian society. Its historical trajectory has borne witness to a series of adaptations, mirroring shifts in societal conventions, economic structures, and cultural convictions.
1. Ancient India:
In ancient India, marriage was regarded as a sacrament, a sacred union, and an integral facet of existence. The earliest textual narratives, such as the Rigveda, illuminate the existence of diverse marriage forms, encompassing the Gandharva (based on mutual consent), Brahmana (ritualistic with priestly involvement), and Asura (marriage involving a dowry)[10]. These variants mirrored the manifold regional and societal dynamics of Indian civilization.
2. Classical Period:
The classical epoch ushered in normative frameworks and regulations for marriage, documented in texts like Manusmriti. Arranged marriages assumed greater prominence, guided by considerations of social status, caste, and familial affiliations[11]. The concept of “samskara” was introduced, emphasising ceremonial and ritualistic components.
3. Medieval India:
The mediaeval era bore witness to the influence of diverse rulers and invaders, each contributing to the evolution of Indian matrimonial customs. Practices such as child marriage gained prevalence, often motivated by political and economic considerations. In some regions, the practice of Sati[12], wherein a widow immolates herself on her husband’s funeral pyre, became prominent.
4. Colonial Era:
The British colonial era introduced significant alterations to Indian society, including marriage conventions. The practice of child marriage faced censure and gradual legal prohibition[13]. The Special Marriage Act of 1872 facilitated inter-religious and inter-caste unions.
Relationships in Ancient India: Beyond Heteronormativity
In addition to the more prevalent conceptions of love rooted in Hindu doctrine, modern India bears witness to distinct religious viewpoints articulated by clergy and educators that consciously draw upon insights gleaned from ancient texts. An illustrative example is presented by Srinivasa Raghavachariar, as documented in mathematician Shakuntala Devi’s 1977 work, “The World of Homosexuals.” He is of the belief individuals who love those of the same sex must have been lovers of the opposite sex in a previous incarnation[14]. According to this perspective, while the physical form may change, the essence of the soul remains consistent across successive lifetimes, compelling these souls to seek each other.
In 2004, Swami Bodhananda Saraswati, was interviewed concerning same-sex unions. He emphasised the absence of an explicit rule under Hindu Dharma and contended that from a religious and moral perspective, there is no inherent wrongdoing in same-sex relationships. He elucidated that Hinduism does not pass judgement based on the physical form or memories but views every individual as a spiritual entity. Swami Bodhananda Saraswati pointed out the absence of scriptural prohibitions and underscored that the acceptance or rejection of same-sex weddings by different priest’s hinges on individual discretion, owing to the decentralised nature of Hinduism[15]. He underscored that the origin of human relationships is rooted in one’s karma and that sexual attraction remains beyond human control.
In recent years, the legal landscape pertaining to marriage in India has undergone substantial transformation.
Notably, in 2018, the Indian Supreme Court rendered a groundbreaking decision in Navtej Singh Johar v. Union of India[16], decriminalizing homosexuality.
This momentous ruling marked a pivotal stride toward acknowledging and respecting the rights of the LGBTQ+ community.
In summation, the institution of marriage in India is underpinned by a profound and multifaceted history, marked by a continual process of adaptation and evolution mirroring the intricate and diverse status of Indian society. While heteronormative structures gained ascendancy over time, the historical presence of diverse relationship forms and sexual orientations in India’s past stands as a testament to the nation’s rich cultural history.
Aspects of the Right to Marriage in India
Any right conferred upon the citizens by the state broadly covers two aspects, namely, a positive right and a negative right. In simple terms, a positive right would mean action and a negative right means omission. With respect to the right to marry, the positive aspect of it includes the prerogative to wed an individual of their liking, while the negative prerogative of it covers, within its ambit, the right to refrain from marriage. Such a right becomes important, especially when seen through the lens of nations such as India, where marriage appears to be
unavoidable, particularly for women, the expression “Right to marry” appears ironic.
Women are forced to marry at relatively young ages due to societal and cultural pressures, leaving them with no other options.
Marriage has traditionally been seen as a union of a male and a female and therefore in the current scenario, in order to change the said narrative, there have been elaborate movements to provide the same rights to those belonging to the LGBTQIA+ community. However, exploring the aspects of the right to marry does not only involve this contemporary issue but also involves other serious issues such as the prevalent practice of forced marriages as well as child marriages where the right to refrain from marriage as well as the freedom to wed a partner of one’s liking are violated.
Forced marriages
In contemporary times, consent is considered to be a pertinent part of marriage between two individuals. It is therefore an accepted norm now that lack of such consent to marriage leads to violation of the basic right to marry. When one or both parties to the marriage have not voluntarily given their full and free consent, the union is considered to be forced. Even though the concept of forced marriage is with regard to lack of consent on the part of either the man or the woman, it is mostly observed that women form the major chunk of victims of such a distressful violation. The marriage of women and minor girls by force or against their will is a complex and deep-rooted social problem. Force in this situation is a very wide term and includes physical, psychological, sexual as well as financial pressures.
The United Nations covers the practice of “forced marriages” under the umbrella of Modern Slavery. Despite not having a legal definition, modern slavery is categorized by the United Nations for Human Rights (UNHR) as practices such as forced labour, debt bondage, forced marriage, human trafficking, the sale of children, sexual slavery, and other forms of slavery.
After researching the incidence of “modern slavery” worldwide, the UN estimated that 50 million people were a victim of it in the year 2021. The Covid-19 pandemic in particular saw a high in the number of crimes, which increased. The Global Estimates of Modern Slavery identified Afghanistan, Bangladesh, India, and Egypt as having a higher likelihood of forced marriages.
Forced marriage is understood as a human rights violation and courts have time and again provided the following rationale in order to corroborate this argument.
- All offences and crimes associated with forced marriages such as kidnapping, and sexual violence have already long been recognized by governments around the world as being against human rights
- Since Marriage and family are extremely important institutions in maintaining peace and order in society, governments across the globe have a vested interest in protecting these institutions. Forced marriages pervert both of these institutions and therefore need to be avoided to the fullest extent.
- A valid marriage requires the consent of both spouses, rendering forced marriages invalid.
One of the key drivers of forced marriage in any society are the patriarchal social norms prevalent in such society. One of the main causes of forced marriages is pervasive gender inequality. Their susceptibility to being coerced into marriage is a result of discriminatory behaviours and ideologies that marginalise women and girls. Stemming from such norms are poverty, lack of education and lack of empowerment among women which further aggravate the problem of forced marriages. Such marriages are not only seen as violation of individual rights but rather as crimes against communities or humanity.
Child Marriages as a type of forced marriage
In fact, child marriage is a type of forced union in which one or both partners are children, usually younger than the legal consent age. In child marriages, one or both parties are sometimes coerced into getting married against their will, and because of their youth and vulnerability, their consent is rarely acquired or taken into account. Child marriage is a grave violation of human rights and has many detrimental effects on those engaged, especially girls.
Furthermore, premature and recurrent pregnancies and childbirth often result from underage matrimony, contributing to elevated instances of maternal illness and fatality.
Over 650 million women currently existing across the globe were wed as juveniles. Approximately 12 million females enter into wedlock prior to attaining the age of 18 annually. This translates to 28 young girls every sixty seconds. Before hitting the age of 18, one out of every five girls become a bride or enters a marital partnership. In the least developed regions, 40% of young girls become brides prior to reaching the age of 18, and 13% enter into matrimony before their 15th birthday[17]. As per UNICEF, this custom is notably widespread in regions affected by conflict and in situations characterized by humanitarian crises.
International organizations and human rights treaties emphasize the importance of addressing child and forced marriages. Recent years have seen an upsurge in international, regional, and national efforts to end child marriage and forced marriage.
Statutory provisions in India to reduce occurrences of Child and Forced marriages
Forced marriage is illegal in India and is sanctioned by both the Indian Penal Code of 1860 (IPC) and a separate statute. Despite this, many women and girls in India continue to suffer abuse and are compelled to wed outside of their free will.
- IPC[18]: It further defines the offence and its punishment and forbids and punishes the act of kidnapping, abducting, or coercing a woman into marriage or illicit relations.
- The Prohibition of Child Marriage Act of 2006 (PCMA), a Special Act and Local Law forbids the solemnization of child marriages and specifies that the victim’s or child’s agreement is irrelevant in determining the offence.
Additionally, PCMA prevails over any provisions that contradict with civil or religious laws.
The PCMA allows for the voidability of child marriages and the annulment of such unions under specified conditions.
It also declares child marriages null and void in the following situations.
Section 12: Nullification of Minor Child’s Marriage in Specific Situations –
When a child, who is underage:
(a) is removed or tempted away from the lawful guardian’s care; or
(b) is coerced by force or lured deceitfully to leave a particular location; or
(c) is traded for the intent of matrimony and coerced to undergo a marriage ceremony or if the minor weds and then is bartered or trafficked or exploited for immoral activities, such marital union shall be deemed invalid and without legal effect.
Reforming the law, raising awareness, and involving the community are all part of the fight against child marriage. These initiatives seek to alter social norms, empower women, and offer assistance to people who are at risk of or impacted by child marriage. Despite improvements in many nations, child marriage is still a problem that has to be addressed in order to safeguard children’s rights and welfare. The right to refrain from marriage need not only be available to adult men and women but should also thus, extend to children in order to avoid such instances of child marriages.
Questioning the Fundamental Right to Marry
The concept of a “fundamental right to marry” presents an inherent contradiction. A fundamental right suggests solid entitlements that the government cannot withhold, dictate, or disregard. However, the boundaries of marriage, including the legal regulations determining who can marry whom, the necessary procedures for marriage, and the legal consequences of marriage, have traditionally fallen under almost complete state authority. This state control has, in some cases, resulted in the denial of certain individuals’ right to marry.
For example, in India, the legislature has laid down laws such as the Hindu Marriage Act,1955 which regulate marriage among Hindus. It would, therefore, be illogical to say that the state cannot interfere with one’s right to choose their own partner since it is the government itself which forms and regulates such marriage laws.
The constitutional tradition of negative liberty easily accommodates a basic right to personal marriage. It seems natural and logical that someone should be free to enter into a marriage, even if that freedom just means that the government cannot forbid them from doing so. The autonomy of the family, the right to free speech, and the right to follow one’s conscience are just a few of the long-established constitutional safeguards that a fundamental right to personal marriage can invoke, coupled with more recently developed protections (for sexual behaviour and privacy).
The true conundrum is the concept of a basic right to lawful marriage. Loving, Zablocki, and Turner proclaimed that everyone had the legal right to get married, but they failed to provide sufficient justification for their claim.
Broadening the scope of the right to marry
Having established the need for marriage to be translated into a fundamental right, we arrive at the question of same-sex marriage and how its illegality poses a contradiction while providing this right to every individual. The state can’t give every individual the right to marry while illegally imposing a restriction on who they can and cannot marry.
Arguments for same-sex marriage
Foremost among the arguments advanced by proponents of same-sex marriage is the assertion that the right to choose one’s life partner is a fundamental human right. To deny LGBTQ individuals the capacity to select a spouse for all legal and societal purposes is deemed a violation of this fundamental right. The non-recognition of marriages between two same-sex individuals, in the same manner as heterosexual unions, is seen as a form of discrimination and a breach of key articles of the Constitution.
This refusal is viewed as infringing on the right to equality, as it discriminates on the basis of sex, which has been expansively interpreted to encompass “sexual orientation” and “gender identity,” as delineated in the case of National Legal Services Authority v Union of India[19]. Moreover, it is perceived as contravening the right to form unions, as well as the right to personal liberty and dignity. The non-recognition of same-sex marriages is also seen as a violation of fundamental human rights as outlined in international law, particularly Article 16 of the United Nations Universal Declaration of Human Rights, which proclaims that all “men and women of full age” have the right to marry “without any limitation.”
Despite these arguments, the historical understanding of marriage as a heterosexual institution continues to impede the acceptance of the right to marry for LGBTQ individuals. Advocates of same-sex marriage assert that the reasons for seeking such recognition are significant both socially and in terms of promoting equality. Married couples enjoy legal and state-provided benefits such as inheritance rights, healthcare, child adoption, financial schemes, and pension and life insurance, which are not accessible to same-sex couples. Denying these benefits to those who contribute to society as taxpayers is regarded as unequal and discriminatory, relegating LGBTQ persons to “second-class citizen” status.
The social dimension of marriage is also emphasized by proponents. Marriage is seen as a marker of social status and a vital component of India’s societal fabric. The legal recognition of same-sex partnerships within the institution of marriage is considered a means to strengthen relationships within the broader society and foster monogamy, thereby promoting safer sex practices, especially among gay males[20]. It is believed that this would have positive implications for the health of same-sex couples and contribute to the reduction of sexually transmitted diseases, including HIV/AIDS, as seen in Scandinavian countries following the recognition of same-sex marriages.[21]
Furthermore, the legal integration of LGBTQ communities into mainstream society through same-sex marriage is regarded as a means to reduce discrimination and foster social acceptance. While some queer theorists advocate integration without reliance on institutional marriage, the social reality in India points to marriage as the primary pathway for the assimilation of LGBTQ individuals into society, aligning with pre-established notions of a harmonious family-based society. This assimilation, proponents argue, would benefit not only same-sex couples but also society at large from a utilitarian perspective[22].
Proponents of same-sex marriage contend that the denial of marriage rights to LGBTQ individuals violates multiple articles of the Indian Constitution. Article 14 emphasizes equality before the law, and forbidding marriage within certain sections of society, such as LGBTQ individuals, is seen as a clear infringement on this principle. Article 15 prohibits discrimination based on sex, an interpretation that encompasses sexual orientation and gender identity, as established in legal cases and official reports.
Article 19, particularly sections (a) and (c), safeguards the right to self-expression, identity, and orientation. The denial of same-sex marriage is deemed to run afoul of these
constitutional provisions. It is further argued that Article 21, which safeguards the right to life and liberty, encompasses the right to choose a partner, as upheld in various court rulings.
Special Marriages Act as a remedy to same-sex marriage
To address these concerns, a legal framework for same-sex marriage must be sought. While the inclusion of same-sex marriages within personal laws is deemed ideal, it is expected to encounter significant opposition from religious quarters. Instead, proponents suggest a judicial interpretation of existing laws, specifically the Special Marriage Act, to accommodate same-sex unions. This act is a secular law that permits marriages irrespective of religion or faith, making it suitable for this purpose.
The provisions of the Special Marriage Act, which currently specify marriage between “male” and “female,” can be judicially reinterpreted to include unions between individuals of the same sex, aligning with the recent High Court ruling in Arunkumar v The Inspector General of Registration[23]. This reinterpretation, supporters argue, is in line with judicial precedents and constitutional morality, providing fundamental rights to LGBTQ individuals. While legislative amendments to the act are an option, they are expected to provoke vocal opposition, making a judicial reinterpretation a more feasible approach for recognizing same-sex marriages.
Conclusion
In summary, there is a compelling need for the legal recognition of same-sex marriages, rooted in both legal and societal considerations. The denial of LGBTQ community members’ ability to choose their marital partners is a clear form of discrimination against their sexual orientation and a violation of their fundamental rights as guaranteed by the Constitution. In light of the Supreme Court’s precedent set in the Johar case, asserting that constitutional morality must take precedence over social morality, there exists a potential avenue for a verdict in favor of recognizing same-sex marriage under Indian laws, on the grounds that its denial is unconstitutional.
A practical approach to realizing this objective lies in the judicial reinterpretation of the Special Marriage Act (SMA) to encompass marriages between same-sex couples. Such reinterpretation would be based on the assertion that the current provisions of the SMA are discriminatory under Article 15 of the Constitution, as they pertain to individuals with a particular sexual orientation. This argument finds support in recent judgments, notably those in the Johar and NALSA cases, which reflect the principles of constitutional morality and have nullified unconstitutional legal provisions rooted in social morality.
Drawing from these legal precedents, in conjunction with the Common Law practices of nations that have legalized same-sex marriages, provides a solid foundation for advocating a judicial reinterpretation of the SMA to permit the legal recognition of same-sex marriages in India.
Along with this, there is an immediate need to address the concern of forced marriages which is a prevalent practice in a nation like India where patriarchy is found to be very deeply rooted.
While legal and societal perspectives on the right to marry continue to evolve, this analysis has highlighted areas of progress and challenges that persist. Legal reforms have expanded the scope of this right, allowing for greater inclusivity and recognition, particularly in the case of same-sex marriages. However, complexities remain, ranging from forced marriages to denial of this right to the LGBTQIA+ community
In this context, the critical analysis presented in this paper seeks to contribute to the ongoing discourse surrounding the right to marry. By examining historical trajectories, legal frameworks, and societal attitudes, we have aimed to provide a nuanced understanding of this multifaceted right.
– By Ishan Anand,
Hidayatullah National Law University
[1]Usha Sharma, Marriage in Indian Society: From Tradition to Modernity (2005).
[2] Adolescent Marriage and Childbearing in India: Current Situation and Recent Trends, (2009).
[3] (2006) 5 SCC 475
[4] United Nations, Universal Declaration of Human Rights.
[5] General Assembly resolution 2200A (XXI)
[6] [2006] EWHC 835 (Fam)
[7] 388 U.S. 1 (1967)
[8] 576 US 644 (2015)
[9] [2004] 3 S.C.R. 698, 2004 SCC 79
[10] Usha Sharma, Marriage in Indian Society: From Tradition to Modernity (2005).
[11] Ibid
[12] Ibid
[13] Adolescent Marriage and Childbearing in India: Current Situation and Recent Trends, (2009).
[14] Wilhelm, Amara Das. Tritiya-Prakriti: People of the Third Sex: Understanding Homosexuality, Transgender Identity and Intersex Conditions Through Hinduism. United Kingdom, Xlibris US, 2004.
[15] Yip, Andrew K.T. The Ashgate Research Companion to Contemporary Religion and Sexuality. United Kingdom, Taylor & Francis, 2016.
[16] AIR 2018 SC 4321
[17] Adolescent Marriage and Childbearing in India: Current Situation and Recent Trends, (2009).
[18] Section 366, IPC.
[19] AIR 2014 SC 1863
[20] Suchi Sharma, Same-Sex Marriages in India – A Short Review on the Legality of Same-Sex Marriage and Its Impact on Society, 4 INDIAN J.L. & LEGAL Rsch. 1 (2022-2023).
[21] William Eskridge and Darren Spedale, Gay Marriage: For Better or for Worse? (Oxford University Press, New York, 2006).
[22] Christina Muller, “An economic analysis of same-sex marriage” German Working Papers in Law and Economics 14, 2002
[23] WP(MD) No. 4125 of 2019