This Article is written by Vedant Tapadia, student of Hidayatullah National Law University.
When further broken down, marriage is essential for the formation of families and thus a prerequisite for the functioning of the society. It can also be said that marriage is a corner stone of a society, it breeds children to become citizens of this world and how to give back to the society they live in. Society accepts union of two souls because primary object of marriage is to beget and bear offspring, and to them until they are able to take care of themselves.
President George W. Bush while underlining the necessity of marriage said that, “the practice of marriage and its institution should be protected against the threats from the cultural breakdown. Marriage must remain as a standard for family life in the society.”
The purpose of marriage is to unite a man physically, emotionally and spiritually and a women together, as husband and wife, in a covenantal relationship between themselves and their Creator. Spiritually in the sense to get spiritual benefit by performing religious duties.
DEFINITION OF MARRIAGE
According to the Oxford dictionary, Marriage means, “The formally or legally recognized union of two people as life-partners in a personal relationship)” According to the Google Dictionary, “The legal union of a woman and man as wife and husband.” From a Legal perspective, A legal dictionary defines marriage as “being united to a person of the opposite sex as wife or husband in a legal, consensual, and contractual relationship recognized and sanctioned by law.” Legally, marriage is a binding contract between the two parties that joins together their possessions, income, and lives.
RIGHT TO MARRY AS A FUNDAMENTAL RIGHT
The right to marriage has been made a fundamental right as a part of right to life under Article 21 of Part III of the India Constitution. Right to Marry has even been acknowledged under the Human Rights Charter of the United Nations within the meaning of the right to start a family.
The right to marry is a universally accepted right and it is available to everyone. However, there are limitations to these rights in the form of prohibition of marriages amongst family members and in some countries gender acts as a limitation to this right depending upon the marriage laws enacted or adopted by the country. Various courts across the country through judicial activism have also interpreted the right to marry as an integral part of the right to life under Article 21.
Indian laws not only provide for a fundamental right to marry to its citizens but also protects theirs interest against forced marriages which is a prevalent evil in India. A forced marriage has been deemed illegal by various personal laws on marriage in India, with the right to marry recognized under the Hindu laws as well as Muslim laws. Other laws that lay down a person’s right to marry in India are: The Guardians and Wards Act, 1890, The Majority Act, 1875, The Protection of Women from Domestic Violence Act, 2005, The Prohibition of Child Marriage Act, 2006, The Family Courts Act, 1984.
MARRIAGE UNDER PERSONAL LAW
According to the Hindu Law, “Marriage is a body for the practice of religious duties. It is to be deemed as a holy union under Hindu Law. It is also to be considered as a union of flesh and flesh and blood and blood. It is not a civil contract but a religious sacrament.”
Similarly, the Muslim law also has a direct stance on the practice of marriage with the Quran stating that, “every person must marry”. Quran further lays down that marriage is the only way to satisfy one’s desire. Marriage (nikah) under the Quran is perceived as a contract which has for its object procreation and reproduction.
Hari Singh Gour, distinguished lawyer, jurist, educationist, social reformer, said, “A marriage is an alliance between man and woman recognized by law. It is sometimes defined as an act, ceremony or process by which relationship of husband and wife is constituted. It is to be pointed out that the meaning of marriage differs in different countries.”
LATA SINGH Vs. STATE OF UTTAR PRADESH, AIR 2006 SC 2522
The Supreme Court while realising the fundamental right to marry as a component of right to life under Art 21 of Indian Constitution as well as protecting the interests of the people against forced marriages or social repercussion arising out of Inter-caste marriages, court held 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”.
Indian Legislations along with the personal laws of the country provide no restrictions to an inter-caste marriage. Inter-caste marriages are on the other hand are in national interest as they will result in progressive harmony among various castes while will in turn help in destroying the age-old evil of caste-system.
Legally, every female and male who has achieved the threshold of 18 years and 21 years respectively, has the right to marry and to enter into a marriage contract. The major difference between a legal contract and the contract of marriage is that the responsibilities and liabilities arising out of a contract of marriage is not limited to the contractual parties. Marriage also acts as foundation of a family as well as social relations.
However, the right to marry is not an absolute right. Meaning, it has to correspond to some other duties simultaneously. A couple not only inherit new rights but are also vested with new duties towards the society and their family. Through marriage, law doesn’t just offer right to two grown-up people to fulfil their natural necessities and to bring forth Legitimate children, yet in addition also forces a responsibility on them not to hurt their life partner and kids in any capacity. On the off chance that an individual can’t play out this obligation, he/she can’t practice his/her entitlement to marriage.
The right to marriage in any country is heavily dependent upon the relevant national laws controlling and regulating the practices of marriage; including laws that disallow marriage between specific kinds of individuals (for instance close family members). Despite the fact that the government can confine the right to marriage, it should not force impediments which disable the very pith of the right.
In the Indian Constitution the right to marry is not explicitly mentioned. Thus, the judiciary assumed its role and interpreted it to be an essential part of “right to life” under Article 21 of the Constitution.
- Equality and Human Rights Commission, what are Human Rights – Right to Marry http://www.equalityhumanrights.com/human-rights/what-are-human-rights/the-human-rights-act/right-to-marry/
- , Civil Liberties: Is Marriage a Right? By Tom Head, October, 28, 2019, http://civilliberty.about.com/od/gendersexuality/f/Is-Marriage-a-Civil-Right.htm
- Liberty, what is the Right to Marry, http://www.liberty-human-rights.org.uk/human-rights/human-rights/the-human-rights-act/what-the-rights-mean/article-12-right-to-marry.php.
- NBJC, Is marriage a constitutional right?, http://www.nbjc.org/news/marriage-a-constitutional.html
- Lawyers Club India, Right to Marry, By Ajay Kumar, http://www.lawyersclubindia.com/forum/Right-to-marriage-45053.asp