Right To Marry In India
Introduction
- Everyone who is of legal age, regardless of who they are or where they come from, has the right to marry. This right is enshrined in UK legislation. The specifics of this right, however, are left to other pieces of legislation. Rules governing who is of marriageable age,’ for example, are established elsewhere. The same is true of regulations governing ability and consent, as well as concerns of bigamy, incest, and other aspects of what constitutes a lawful – or illegal – marriage. While there may be several restrictions around marriage, they must all serve a purpose and must not obstruct the substance of the privilege.That is, if someone (or a group of persons) is capable and willing, the regulations should not prevent them from marrying. As a result, rules that require certain persons to go through unnecessary hurdles before marrying, or limitations that serve no actual purpose, may infringe on this freedom. The Marriage (Same Sex Couples) Act 2013 has made same-sex marriage lawful in the United Kingdom. Article 12 also contains a right to marry for transgender persons, according to the courts. Trans persons, on the other hand, need a Gender Recognition Certificate to marry in the gender they identify with, which might be difficult to get for some.
Sham Marriage Case
- In 2004, legislation was enacted to prohibit so-called “fake weddings.” They were applicable to anybody who was subject to immigration control (except those getting married in the Anglican church, who were exempt). The fundamental issue was that the legislation extended to all non-UK or European individuals who were subject to immigration control, even if there was no evidence that the marriage was a sham.’ In light of this, the House of Lords declared that the blanket policy was discriminatory and infringed on the freedom to marry without cause.As Baroness Hale put it, “the freedom to create formal, legal partnerships with the partners of their choosing” is “one way of keeping them away from society, denying that they are “free and equal in dignity and rights.”
About Article 12
The freedom to marry and start a family is guaranteed under Article 12 of the Convention. The Court has determined that exercising this freedom has personal, societal, and legal ramifications. The Court has held that it must not rush to substitute its own judgment for that of the authorities who are best placed to assess and respond to society’s needs, given the delicate moral choices involved and the importance to be attached to the protection of children and the fostering of secure family environments.
Article 12 guarantees a right that is subject to the laws of the country in which it is exercised. In contrast to Article 8 of the Convention, which establishes the “right to respect for private and family life,” and to which the right “to marry and start a family” is closely linked, Article 12 of the Convention does not include any permissible grounds for state interference, such as those allowed under paragraph 2 of Article 8 (“in accordance with the law” and as being “necessary in a democratic society,” for such purposes as “the protection of health or morals” or “the protection of the environment”
As a result, when examining a case under Article 12, the Court does not apply the tests of “necessity” or “pressing social need” used in the context of Article 8, but instead must determine whether the impugned interference was arbitrary or disproportionate, taking into account the State’s margin of appreciation.
The language of Article 12 of the Convention is rather limited, and the Court’s and the former European Commission of Human Rights (“the Commission”) interpretations haven’t significantly broadened its reach. Article 12 of the Convention does not apply to family life after marriage, save in the case of the establishment of a family.
Furthermore, in the absence of marriage, the right to have a family does not exist under Article 12 of the Convention.
Questions Raised On This Topic
1. Article 12 protects your right to marry
- Article 12 safeguards the freedom to marry and establish a family for men and women of marriageable age.
2. Are there any restrictions to this right?
Your freedom to marry is governed by national marriage laws, which may prohibit marriage between specific groups of individuals (for example, close relatives),
Although the government has the power to limit the right to marry, such limits must not be arbitrary and must not jeopardize the right’s fundamental foundation.
3. How does this right apply to transsexual people?
- In 2002, the European Court of Human Rights determined that this right applies to transsexuals. Because to the Gender Recognition Act 2004, the Marriage (Same-Sex Couples) Act 2013, and the Marriage and Civil Partnership (Scotland) Act 2014, they can marry or form civil partnerships in their acquired gender.
4. Article 12: Right to marriage
- According to national legislation governing the exercise of this right, men and women of marriageable age have the right to marry and start a family.
5. Example case – B & L V the United Kingdom [2005]
- A parent-in-law could not marry their child-in-law until both had achieved the age of 21 and both of their respective spouses had died, according to English law. L’s father-in-law was B, and the two wanted to marry. L’s grandson addressed B, his grandpa, as ‘Dad.’ The court agreed with the government’s position that the rule was necessary to safeguard the couple’s family and potential children. However, it was determined that their right to marry had been infringed upon. The legislation was mostly based on custom, and there was no legal reason why a couple in this circumstance couldn’t be together. There had also been other instances where spouses in similar situations had been granted exemptions via personal Acts of Parliament (laws for the benefit of individuals). This demonstrated that the opposition to such unions was not total.
Legal Implications Of Marriage In India
According to Dr Vageshwari Deswalan academician, author, feminist and activist working as a Professor at the Faculty of Law, University of Delhi.
Marriage was originally viewed as a social institution to prevent men from engaging in unrestricted polygamy and to establish paternity for their offspring. The state has established rules to control every element of human life throughout the years, and marriage is no exception. Marriages in India are governed by the personal laws of the religion practised by the parties to the marriage. The Special Marriage Act of 1954 and the Foreign Marriage Act of 1969, respectively, govern inter-religious and inter-national weddings. As a result, we have laws that govern the necessary elements for lawful marriage, reasons for divorce, spouse and child support, adoption, guardianship, inheritance, succession, and so on. In addition, we have some secular laws dealing with marriage matters, such as Section 125 of the Criminal Procedure Code, Sections 498A of the Indian Penal Code, the Family Courts Act of 1984, and the Domestic Violence Act of 2005. For Hindus and Christians, marriage is a sacrament, and the parties involved place a high value on following conventional customs, rites, and ceremonies, such as the saptpadi, saatpheras, garlands exchange, and vows. These rituals are required for a legally binding marriage. Hindu weddings are thought to have taken on a commercial aspect once permission became a legal condition for marriage.
The argument is debunked, as Hindu marriages are only voidable, not void-ab-initio like contracts, due to a lack of consent. Marriages in Islam are contractual, with a focus on the offer and acceptance of the marriage in the presence of competent witnesses. The wife is referred to in the Hindu texts as Ardhangini, which means “other half,” signifying that a man is completed until he marries. In addition, the woman has been referred to as the Graha Lakshmi, Dharam Patni, and Sahadharmini, as an essential partner in her husband’s religious and spiritual commitments. Widow remarriages were forbidden in Hindu culture, whereas Sati Pratha was encouraged. Such regressive practises were mostly abolished thanks to the efforts of social reformers. Marriage is seen as an eternal bond among Hindus for many lives to come. As a result, before the Hindu Marriage Act of 1955, the notion of divorce was not recognised. Sage Vashistha, Parasara, and Kautilya explain some instances in which a woman may quit her husband and remarry in ancient Hindu writings. This was allowed in circumstances where the spouse lacked character, was impotent or had become a hermit. In a patriarchal culture, however, these scriptures were seldom highlighted, and women were driven to stay with polygamous spouses since men could often take more than one wife with impunity. Prior to 1955, Hindu marriages were monogamous for the lady only.
With the exception of Islam (which allows a man to have up to four legally married wives at any given time), all spouses now have the freedom to be monogamous. With the repeal of Section 497 of the Indian Penal Code, adultery is no longer a criminal offence, but rather a reason for divorce for both the husband and the wife. Bigamy is a basis for criminal prosecution of the errant spouse under Section 494 of the IPC, in addition to being a ground for divorce. Marriage grants the right to a conjugal connection and denying it is cruel, particularly when the parties are young and healthy. Restitution of Conjugal Rights is a marital remedy provided under Section 9 of the Hindu Marriage Act and Section 22 of the Special Marriage Act of 1954 for those forsaken by their spouse. However, this ostensibly gender-neutral rule is presently under court scrutiny for infringing on human privacy, dignity, and autonomy. Women have a legal right to dwell in the married home with their husbands. She also has a legal right to be supported by her husband’s earnings. The court may deny her support from her husband’s income if the woman is earning similarly well or is well qualified to earn. Courts use the ‘able-bodied person’ test to establish whether or not a man requesting maintenance from his wife is capable of earning a living.
Marriage allows the couples to purchase property in their combined names, open joint bank accounts and lockers, and identify each other as a nominee in insurance, pension, and gratuity forms. In the event that one of the spouses dies or becomes disabled, the other spouse is legally entitled to a pension. Marriage, on the other hand, does not provide the spouses a portion of each other’s self-acquired assets. Except in Goa, the notion of marital property is not recognised in India, therefore couples who divorce have no claim to the other’s property, whether by inheritance or otherwise. According to intestate succession regulations, following a husband’s death, the wife and her children obtain an equal portion of all of her husband’s property, while the husband can only acquire a share of his wife’s own property after her death, not her ancestral property. Married couples can adopt, according to the Central Adoption Resource Authority’s standards, but both spouses must agree to the adoption. Furthermore, no child shall be placed for adoption with a couple until they have been married for at least two years. Although some faiths believe the husband to be the natural protector of his underage bride, the Prohibition of Child Marriage Act, 2006, is a secular law in India that prohibits child weddings.
If an adult male above the age of 18 enters into child marriage, he will be sentenced to two years in prison or a fine of up to one lakh rupees, or both. In addition, marriage consummation with a minor bride is no longer protected under the IPC, and it has been labelled as marital rape by the Supreme Court in a 2017 judgement. During the course of a marriage, communications between spouses are protected from disclosure. Because it is vital to maintain absolute secrecy between a husband and a wife who share the most personal connection, spousal privilege is protected by section 122 of the Indian Evidence Act, 1872. This covers all communications made during the marriage’s life, and the privilege remains even after the marriage’s dissolution, but only for communications made during the marriage’s existence. We are ignoring our responsibilities as a result of the overabundance of rights rhetoric in today’s legal realm.
In certain locations, the special law for women has helped to ameliorate their hardships, but we must caution against excesses. Financially independent and self-assured women pose a visible danger to male supremacy, which refuses to recognise women as equals, causing marital strife. Women are becoming more aware of their legal rights, and they do not believe that they are the weaker sex. In the course of my profession, I’ve come across situations when the parties should genuinely move on. It is preferable for them to let go rather than being caught in a situation where neither of them is happy and both are sad. The grief impacts others around them, with children being the most impacted. Everyone is entitled to happiness. When love fades from a marriage, the law steps in. In the form of divorce, the law gives a way out of a broken partnership. Happiness may be found the second or third time around. The hopeless optimist in me wants to think that there are no evil people, only bad situations and that everything changes with time.
Conclusion
- Unlike Article 16 of the Universal Declaration of Human Rights, the Indian Constitution does not specifically recognize the freedom to marriage as a basic or constitutional right. Marriage is controlled by many statutory enactments, but its recognition as a basic right has only come about as a result of Supreme Court judgements in India. Article 141 of the Constitution makes such a statement of law binding on all Indian courts. Lata Singh v. State of Uttar Pradesh, a 2006 case involving an inter-caste marriage, was one of the first to address this problem. The Supreme Court ruled that because the petitioner was a major, she had the right to marry whoever she chose and that there was no statute prohibiting an inter-caste marriage.The verdict, on the other hand, was limited to the facts of the case and did not constitute a “statement of law” by the Court. The Court did, however, specifically accept the petitioner’s ability to pick her own spouse.
Top 13 Interesting Facts About Right To Marry
Everyone who is of legal age, regardless of who they are or where they come from, has the right to marry. This right is enshrined in UK legislation
The specifics of this right, however, are left to other pieces of legislation. Rules governing who is of’ marriageable age,’ for example, are established elsewhere.
If someone (or a group of persons) is capable and willing, the regulations should not prevent them from marrying.
The Marriage (Same-Sex Couples) Act 2013 has made same-sex marriage lawful in the United Kingdom.
The freedom to marry and start a family is guaranteed under Article 12 of the Convention. The Court has determined that exercising this freedom has personal, societal, and legal ramifications.
The Court has held that it must not rush to substitute its own judgment for that of the authorities who are best placed to assess and respond to society’s needs, given the delicate moral choices involved and the importance to be attached to the protection of children and the fostering of secure family environments.
Hindu weddings are thought to have taken on a commercial aspect once permission became a legal condition for marriage
The language of Article 12 of the Convention is rather limited, and the Court’s and the former European Commission of Human Rights (“the Commission”) interpretations haven’t significantly broadened its reach.
Furthermore, in the absence of marriage, the right to have a family does not exist under Article 12 of the Convention.
Although the government has the power to limit the right to marry, such limits must not be arbitrary and must not jeopardize the right’s fundamental foundation.
The Special Marriage Act of 1954 and the Foreign Marriage Act of 1969, respectively, govern inter-religious and inter-national weddings
According to national legislation governing the exercise of this right, men and women of marriageable age have the right to marry and start a family.
Marriage is controlled by many statutory enactments, but its recognition as a basic right has only come about as a result of Supreme Court judgments in India.
Some FAQs Or Also Ask Question
Is marriage a fundamental right in India?
To get married ie marriage is a Fundamental right under The Constitution of India, Art 21, Personal liberty. “This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes.
What is the right to marry?
The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable.
Is the right to marry in the Constitution?
Right to marriage is provided under human right charter that to under the heading of” Right to have family”. In Indian Constitution this right not expressly mention .But it is interpretated under Art 21 .right to marry is universal right .it is available to all persons but whether it includes same sex marriage. Marriage right is recognized at international level but in India there is no special law for marriage right .marriage right is mentioned under various covenant but it does not include person of same sex marriage. Indian constitution provides for right to marry but it is not fundamental right.
Is marriage right for everyone?
One of our most fundamental rights as citizens of the United States of America is the right to marry the person of our choice. Courts in this country have determined that the right to marry is, in some cases, more fundamental than the right to vote. The right to marry cannot be denied: (a) on the basis of an individual’s race; (b) to those who have shown themselves to be delinquent on child welfare payments; or (c) to inmates.
What is article 12?
The ‘Other Authorities’ mentioned under Article 12 means all such authorities that lie within the territory of India and are controlled by the government of India through its acts and amendments. Ujjain Bai v. State of Uttar Pradesh (UP) – Supreme Court observed that Article 12 winds up the list of authorities falling within the definition by referring to “other authorities” within the territory of India which cannot be read as ‘of or as the same kind’ with either the Government or the Legislature or Local authorities R.D Shetty v. Airport Authority of India – Five points were mentioned by Justice P.N. Bhagwati to understand if the ‘body’ in news is instrumental to be called as the ‘State’ under Article 12 or not: The ‘Body’ can be called as ‘State’ if its entire shared capital is held by the Government of India Such other authorities have a governmental functional character The absolute control of such authorities lie with the government Such authorities which have an element of command or authority The authorities discharging public service.
