RIGHT TO MARRY OF ONES CHOICE

THIS ARTICLE WAS WRITTEN BY TANISHA SINHA, A STUDENT OF GALGOTIAS UNIVERSITY.

INTRODUCTION

India is a country of multiple religion, castes, and linguistic groups. And so, the makers of constitution guarantee the equal treatment of law irrespective of caste, creed, religion etc., but somewhere customs prevail law as the question raised upon the mixed marriage system and over the law for the same which results in various sorts of victimization including violent assaults. And even after that if they survived to have a life of their own, their children might face ostracism.

When it comes to ancient India, love marriages are accepted form of marriages called as “gandharva vivah” which requires of consent of bride and groom only, this type of marriage was anyway considered as an ‘unapproved type’ of marriage since it didn’t include ‘kanyadan’ or introducing the bride to the groom by the father of daughter. With the influx of various invaders having a place with various strict and social groups in India including the Greek and Arab invaders in the ancient period, Muslim invaders in archaic period and in conclusion the European invaders, the Indian culture, particularly the Indian Hindu society turned out to be more orthodox towards permitting love relationships which may essentially incorporate consideration of people from various socio-strict foundations.

Now arranged marriage is considered as best with the keen interest of parents and relatives as they believed to have more experience. With the time change these two generations getting collapsed and sometimes it takes a bad form cause of caste and religion which we all are very aware of. As India follows a very rigid structure of the caste system. So, in order to protect citizen right to live the parliament enacted special marriage act 1954, which provides for a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the caste and religion they follow. As with the revoke of section 377 the rule of marriage between male and women also needs to be revoked from society and to be secure the same sex marriage by law.

MARRIAGE AS CONSTITUTIONAL RIGHTS

 The first few provisions of the Constitution of India including Article 14 (equal protection of laws to all), Article 15(prohibition of discrimination on grounds of race, religion, caste, sex or place of birth), Article 21 of the constitution (Right to life, liberty and property) etc. and the Right to marry is a Right of choice for choosing a partner are the anti-discriminatory provisions which guarantee equal rights to all citizens including right to marry according to one’s own choice. Unlike article 16 of universal declaration of human rights which is not legally binding in India,[1] our constitution doesn’t protect this right as a specific law.

In the case of justice KS puttaswamy (retd) and another v. union of India and others[2]. the Court unanimously held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21”. In the Indian context privacy at least cover these three magnificent aspects-

1. privacy that involves the person
2. informational privacy and

iii. privacy of choice, which protects an individual’s autonomy over fundamental personal choices.

Despite the fact that marriage is controlled through different legal establishments, it’s anything but an essential right has just evolved through judicial decision of India’s Supreme Court. Such assertion of law is restricting on all courts all through India under Article 141 of the Constitution.[3]

This matter reaches the door of supreme court in the landmark case of Lata Singh vs. State of U.P. and another (2006)[4]. It was held that petitioner was a major and so entitled to take decisions and can marry whoever she

wanted and that no law bars an inter-caste marriage.

The right of a person to marry any individual of his/her decision regardless of caste or religion is a key right revered in the Constitution of India, the Karnataka High Court reaffirmed requesting release of a women in a Habeas Corpus appeal documented by her lover in dec 2020, which raises the question is law on ground?

LAW ON GROUND AND LOVE MARRIAGES

1.SPECIAL MARRIAGE ACT, 1954

This act deals with inter caste and inter-religious marriage; it is a special legislation that was enacted to provide Special forms of marriage where parties are not required to renounce his/her religion. This act covers marriages among Hindus, Muslims, Christian, Sikhs, Jain and Buddhists. And also, to the Indian nationals living abroad.

the only requirement here is the consent of both the parties for the marriage caste, religion, race etc are not hindrance here anymore.

2. Prohibition of Unlawful Religious Conversion Ordinance or love jihad a barrier for right to marry by choice

In 2020 Uttar Pradesh passed this law which is for banning unlawful conversion by force, fraudulent means or marriage[5]. interfaith relationships in India are enrolled under the Special Marriage Act, which orders a 30-day notice period. Yet, couples live in dread of backlashes all through this time and surprisingly more so now, with another law that objectives such relationships.

Before Independence such missions were covered in within pages of paper. There were no standard gatherings or pioneers stirring up such strains. Presently it’s anything but a first page subject and the state is fundamentally associated with authorizing these laws. Online media and informing administrations are being utilized to spread the message that Muslim men are persuasively changing over Hindu ladies for marriage, thus commencement oh Hindu Muslim marriage is still on backlog even after law cause due to these 30-day prior notice couples are afraid of involvement of others and keep running first from state and then from law.

Militant traditionalists detest love and intermarriage. But independent India’s founders wholeheartedly supported inter-religious marriage, rightly seeing it as a sign of social progress and enhancement of democracy.[6]

Even section 420 of IPC is booked for cheating, fraud or deception do we really need another law which gives power to have control over persons private interest?

In shafin Jahan v. Ashokan k.m popularly known as Hadiya case.[7] The Court assessed the charge that Hadiya was misdirected into marrying her husband Mr. Shafin Jahan and persuasively changed over to Islam. The Court tracked down that the claim, which was made by her folks, was clearly false. within one month after this law 14 cases and 49 are in jail[8] and are many more cases.

3. With regards to the different “honour killings” occurring, the Supreme Court in Shakti Vahini vs. union of India[9] (UOI) endorsed a large number of suggestions to guarantee the protections of couples who go into enter into inter-caste or inter-religious marriages. The court even recommended a law on the lines of nullification of ‘sati’ and ‘dowry’ to battle the social danger of ‘honour killings’. While holding that when two grown-ups consensually pick each other as life accomplices, it’s anything but a sign of their decision — perceived Under Articles 19 and 21 of the Constitution — that should be ensured. This can’t surrender to the origination of class, honour or group thinking, which distantly don’t have any authenticity.

APPLICATION ON LGBTQ MARRIAGE

All the cases dealt over talk about marriage as a matter of privacy and an important fundamental right but no one pertained to same sex or transgender marriage.

In navjet singh johar and others v. union of India which downs the section 377 of IPC,1860 and the most important observation made by justice chandrachud in which he has specifically held that members of the LGBT community “are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution” and are entitled to equal citizenship and “equal protection of law.”[10]

The issue was up upheld by gay and lesbian couple whose application for marriage has been denies by state authorities and the petition regarding the recognition under special marriage act is still adjudicated with the state opposing such petitions on the ground that it’s unacceptable in the Indian culture, sure the battle of equality is an uphill task.

Be that as it may, on a more positive note, the new decisions of the High Courts of Orissa, Punjab and Haryana and Uttarakhand explicitly perceiving and authorizing the privileges of same sex couples to live respectively, regardless of whether not in “sacred marriage”, gives some hope for the courts being responsive and active to the rights of LGBTQ couples.

In case of Arunkumar and Another. v The Inspector General of Registration[11] the fundamental right of transgender person to marry affirmed by the madras high court in 2019 which refused by the registrar which clearly stated that a marriage solemnized between a Hindu male and a Hindu transwoman would be a valid marriage in terms of Section 5 of the HMA, The Petitioner’s choice to express her gender identity as a woman would therefore fall within the domain of her personal autonomy, which State authorities are not entitled to question.[12].

But still, fight for the same is a long to way go as on centre’s comment to Delhi HC over the same sex marriage is that marriage should be based on “age-old customs, rituals, practices, cultural ethos and societal values”, and said decriminalizing section 377 is in order to promote particular human behaviour it’s neither intended nor in fact legitimise the human conduct in question. It also said judgement of navtej singh johar case doesn’t extend the right to privacy that much which promote same sex marriage.[13]

The other contention of morality and cultural qualities when tried with the basics of the Constitution and its core way of thinking comes out as legally impotent. At the point when the ethical guidelines of the general public are facing up against constitutional morality.

On the off chance that we as a general public side-line a person’s rights and begin directing our account; the primary thing we rout is the vision of the initial architects of our Constitution.

What is the significance of freedom if the declaration of love and connections must be rehearsed in secret? Being with an accomplice of one’s decision is certainly not a frightful sin yet a crucial right. The genuine test here isn’t lawful, yet the liberation of the orthodoxy that lies within us!

[1]https://blog.ipleaders.in/human-rights-constitution-india

[2] https://main.sci.gov.in

[3] https://www.barandbench.com

[4] https://indiankanoon.org

[5] https://prsindia.org

[6] https://timesofindia.indiatimes.com

[7] https://www.scobserver.in

[8] https://indianexpress.com

[9] https://indiankanoon.org/doc/92846055

[10] www.barandbench.com

[11] https://translaw.clpr.org.in

[12] clpr.org.in

[13] https://indianexpress.com