Right to Marry: Comparative study of same-sex marriage in India and US

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This article was written by Kamakshi Gupta, a student of UPES.

The right to marry has been a crucial  part of social institution in human civilization.  This right has been exercised universally and in a generic sense. It has also been termed as an institution of a male and a female. With world becoming a common platform to address issues with regard to the rights enjoyed, and with cultivating awareness of sociology,  same-sex marriage has become a intense issue. As known globally, the US has legalized same-sex marriage uniformly. However in India, it is still controversial as it is considered a phenomenon of orthodox background. Furthermore, the laws in the US have only been recently formed after worldwide protest against non-uniformity and disapproval against punishment in some states.

The legal status or relationship that results from a contract through which a man and a woman, who have the capacity to accept such an agreement, mutually vow to live together in the relationship of Husband and Wife in law for life, or until the legal ending of the relationship is a marriage contract. In simple words, it is a legally sanctioned contract between a man and a woman. Entering into this contract changes the legal status of parties, giving husband and wife new rights and duties. Public policy is intensely in favor of marriage formed on the belief that it preserves the family unit. The traditional principle upon which the institution of marriage is formed is that a husband has the obligation to support his wife, and it’s a wife’s duty to serve. In the past, this  meant that it is the husband’s duty to provide a safe house, to look after their  necessities such as food and clothing, and to live in the house. A wife’s obligation has traditionally entailed maintaining a home, living in the home, having sexual relations with her husband, and giving birth to their offspring. Gradually, the Changes in society have modified these marital roles to a considerable level as married women have joined the workforce in large numbers.

Marriage laws in USA: The Right to Marry

Being a government republic the US is giving laws in the state. The states have distinctive laws from one another, however they are regularized by the middle to be accommodating. Every state has a law for marriage. The religious obstructions in US are inapplicable and therefore a superior organization of these laws can be watched. The lawful importance of marriage is directed by individual expresses, each of which sets a “period of lion’s share” at which people are allo marry to go into marriage exclusively all alone assent, and additionally in what age minors can weld with parents and/or legal assent. Marriage laws have changed remarkably amid  United States history, including the removal of bans on interracial marriage and same-sex marriage. Relational unions change extends as far as religion, financial status, age, responsibility, etc. Explanations behind marrying might include a craving to have love, children or financial security. Marriage has been a way in some occasions to gain citizenship by getting a green card. However, the Immigration Marriage Fraud Amendments of 1986 set up laws to rebuff such occurrences.

Some case laws:

Meyer v. Nebraska – The right “to marry, establish a home and bring up children” is a central part of liberty protected by the Due Process Clause.

Skinner v. Oklahoma ex rel. Williamson– Marriage is “one of the basic civil rights of man” and “fundamental to the very existence and survival of the race.”

Griswold v. Connecticut – “We manage a privilege of protection more established than the Bill of Rights, more seasoned than our political gatherings, more effective than our educational system. Marriage is a meeting up for better or for more terrible and personal to the level of being consecrated. It is an affiliation that advances a lifestyle, not causes; an amicability in living, not political religions; a reciprocal reliability, not business or social tasks. However, it is a relationship for as honorable a reason as any included in our former choices.”

Marriage laws in India: The Right to Marry

As not clearly specified, the constitution of India does not give a particular article as right to marry, however surely brings it under the ambit of article 21. This article discusses the privilege to life and individual freedom, in which it has been propounded that marriage is likewise a crucial piece of driving a noble life. What’s more, every individual has the authority to marry unless there are sensible limitations forced much the same as venereal malady. Since, Indian population practices different religions; there are different individual laws which have been naturally subject to the time long practices and traditions being taken after. These traditions  have come to fruition as individual laws. These individual laws characterize marriage. As stated by the Hindu Law; marriage is a body in the execution of religious obligations. It is considered as a heavenly union . It is additionally thought to be a union of the fragile living creature and blood. It is a religious ceremony and not a legal contract. Marriage, as indicated by the Muslim law: Quran states “each individual must marry”. It expresses that marriage is the best way to fulfill one’s yearning. Marriage (nikah) is identified as an agreement which has for its question the reproduction and the sanctioning of youngsters.

Some case laws: Mr.’x’ v. Hospital ‘Z’[1]: In this case a person went to the  hospital for some treatment and therefore it was found by the hospital authorities that the person was HIV positive. Later the hospital authorities informed his would be wife about this which became an impediment in their matrimonial ceremony. Looking at the facts, there must be a principle of professional confidentiality and they should not have revealed such personal information to his would be wife without seeking his permission. In this case the court ruled that right to marry is not an absolute right. If a person is aware about his veneral disease, he has an obligation to reveal such facts before marrying.

Conclusion

Marriage is one of the all inclusive social establishments. It has been set up by the human civilization to control and direct the life of a man. It is a foundation of a general public.  It is in the family that kids figure out how to wind up natives; it is in the family that kids learn to make connections; it is in the family that kids find out about what is anticipated from them in the public sphere. Fundamental to the atomic family is the traditional thought of marriage, comprising of one man and one lady in a monogamous and eternal relationship. We have to elevate and ensure marriage to secure a more advanced society.  Society acknowledges union of two souls on the grounds that the essential segment of marriage is to conceive and bear offspring, and to them until they can deal with themselves. For whatever period of time that there is heterosexual marriage as a state organization, there ought to be gay person marriage too. Since we are all, as our establishing fathers said, made equal, any rights ensured to one gathering of individuals must be associated to all individuals. In disagreement to mainstream thinking, gay individuals aren’t simply searching for a right to marriage. They’re searching for equal rights and advantages to their cognated subjects. Sexual introduction is no motivation to preclude any American subjects from securing their essential freedoms. Gay people, similar to heteros, must be given the privilege to equal rights, for example, shared charges, medical coverage, hospital visits, wills, and youngster care. Also, the American thought of uniformity and freedom for every individual is being denied.

Why must gay relational unions be permitted in India, is an appropriate query. Consistently talking, each individual has a fundamental right to life ensured by the Indian constitution. This might be deciphered as though a resident picks a gay accomplice in his/her life, it might be permitted. As marriage is a legitimate method for tying two individuals  together, the gay relationship can be legitimized through marriage, which will keep the instances of illegitimate mystery relations. Another sensible point is respect. An attractive individual life is as much a privilege of gay couples as straight couples.

[1]AIR 1999 SC 495