(01 Jan 2021) Question-1
Q-1) Right to Marriage is a human right which is backed by the constitution of India but neither by the ordinary law in India nor by the sanction of the Society. Do you agree? Explain in the light of various personal laws.
Introduction: The Right to marriage is both a Human right as well as a Constitutional right. It is stated under Human Rights Charter within the meaning of the right to start a family. In Indian Constitution, it is available as Right to life and personal liberty under Article 21.
Backed by the constitution:
In Right to privacy case, 2017, the Supreme court of India has held that Right to privacy includes preservation of personal intimacies, the Sanctity of family life, marriage, procreation (reproduction), the home and sexual orientation. Thus, not only marriage, but also prohibited relationships such as same-sex marriages are a matter of individual right and privacy.
Ordinary Laws of India:
However same enthusiasm is not shown by the ordinary laws of India.
- Prevents Inter-faith Marriage:
- Provisions of Prohibitions in personal laws: For example Hindu Marriage act prohibits marriage amongst even distant cousins known as Sapinda.
- Special Marriage Act, which was aimed at easing marriages between interfaith couples, has provisions which actually prevent it. The parties to an intended marriage should give notice to the ‘marriage officer’ of the district in which one of them had resided for at least 30 days.
- The notice will have to be entered in a ‘Marriage Notice Book’ and is open for inspection for anyone. It's copy has to be sent to his counterpart in the district where the party has permanent residence.
- Further, it allows any person to highlight his Objection to Marriage on the ground that it contravenes one of the conditions for a valid marriage.
- Prevents Intra-sex marriage: There is no law which allows homosexual marriage. Even Delhi High Court recently asked the Union government to respond to two separate petitions by same-sex couples seeking to declare that the Special Marriage Act (SMA) and the Foreign Marriage Act (FMA) ought to apply to all couples regardless of their gender identity and sexual orientation.
- The main problem is that “Marriage is not defined, in special marriage act."
- Prevents Inter-faith Marriage:
Not backed by the sanctions of the society: Society uses various instruments to enforce its norms on the individuals:
- Honour killing and other sorts of violence takes place to prevent the voluntary relationships between couples.
- Social boycott: Often when an Inter-caste, Inter-faith or an intra-sex couple dwells in an area, they are socially boycotted by the society. This further infuses fear in the mind of society.
- Religious Sanctions: Often preventing such prohibited relationships is considered as a religious duty.
- Patriarchal Mind-set: It plays an important role in India as people do not allow girls this right to choose their life-partner
Conclusion: Although there are various reasons to believe that right to marriage is still not ensured by the law, and due to the fear of the society. However, recently various Judicial precedents have paved the way for is right to be implemented. Case such as Right to Privacy case, LGBTQ Case(Naz foundation case) have broadened the right to life. Further, sections of society have called for Uniform Civil code(Article 44), which eventually can lead to a series of reforms in this regard.
Source: The Hindu OPED: Has the Special Marriage Act failed to protect inter-faith couples?