This article has been written by Mr Ganeev Singh Sahni a student of BA.LLB 3rd year at Lloyd Law College Greater Noida.
Introduction:
As we all know, Hindu marriage is a sacrament other than a contract unlike Muslim and Christian marriages. It is considered as the purification of mind and soul from inherited stain. According to the Hindu religious text, a man is incomplete without a woman. That’s why his wife is also called the ardhangini.
Marriage has always remained an eternal part of our society. It is the succession of every family. A family can only grow by the means of marriage. Either a Hindu, Muslim or Christian every religion has recognised the need of marriage. So, there should also be a law which recognises a valid marriage to protect the interest of each and every individual. We all know that a Hindu Marriage is governed by the Hindu Marriage Act 1955. It lays down several grounds on which a Hindu marriage can be validated. The Hindu Marriage Act treats a marriage more of a sacrament rather than giving legality to it.
But there are certain circumstances under which the Hindu Marriage Act 1955 cannot be applicable. These circumstances are governed by the Special Marriage Act 1954.
Considering the Special Marriage Act 1954, it is applicable to all states of India including Jammu and Kashmir. Earlier, the state of Jammu and Kashmir was not mentioned under this act. Jammu Kashmir being a territory of India always claimed special laws for themselves. The best example for this was the right to property under which only a citizen of Jammu and Kashmir can hold property in the state. No other person residing in other states can claim right to property in Jammu and Kashmir. But after the enactment of the CAA and NRC bill in 2020, All laws applicable to the territory of India are also applicable to Jammu and Kashmir.
So coming to the special marriage act 1954 it can come into force by any date as initiated by the central government. There should be a degree of prohibitive relation within both the parties to come under the special marriage act. Under this act a man or anyone under part-1 of the first schedule and women under part-2 of the set schedule should have a prohibited degree of relationship under the special marriage act.
Explanation of the act:
The following act consists a relation of half blood full blood as well as uterine blood either Illegitimate or legitimate. Under this adoption is by relationship of blood. Under this full blood refers to the descendants of a common ancestors of the same wife. There as half blood refers to the common ancestors and descendants of a different wife on the other hand utrine blood refers to descendants from a common ancestors from a different husband. Under this the Co-officer of the area where marriage relation is applicable. Such a petition can only be filed under a civil court.
Conditions for solemnization:
Not which standing anything content in other laws for time being, there are certain conditions with respect to the solmalization of marriages. This conditions are as follows:
- Neither of the party has a spouse living.
- Neither in capable of giving a ballet concerned or no mental disorder for the protection of children including no recurrent attacks on insanity.
- The mail shall at least complete the age of 21 years and the female shell at least complete the age of 18 years.
- Neither of the parties must be under a prohibited relation. Provided that any party in regard of the special marriage act or not with standing any prohibited relation.
Objective of special marriage act:
- Specific type of marriage.
- Document Asian with respect to a marriage.
- Separation with respect to a marriage.
Under the case of Seema v. Ashwini Kumar (2006) the supreme court held each marriage has to be registered by the Marriage Officer specially appointed for the purpose. It also added that registration is compulsory for all grounds either Sikh, Hindu or Muslim.
Purpose:
The main purpose of this act is to protect those who marry across castes or religions. It serves the Interest of each and every person in the society. It includes lawful marriage vichar valid only after registration. It has also decreased in things like honour killing jihad etc.
Elements:
It includes the legislation of marriage of all citizens regardless of their religion or caste. Marriage is a legal transaction and no rituals are followed under this act.
Applicability Of The Act:
This act is applicable to all states as well as nationals. It includes all faith example Hindu Muslim and Christian. Under the landmark case of Stephen Joshus And Anr. Vs J.D. Kapoor 1995 IAD Delhi 1361, 58 (1995) DLT 57, 1995 (33) DRJ 258 it was held that whether a provision for divorce by mutual consent should be included in Indian Divorce Act is a matter legislative policy. The courts cannot extend or enlarge the legislative policy by adding a provision to the statute which was never enacted there.
In addition to this it also lays inter faith religion upon the couples personal law. There are no rituals or ceremony performed until and unless they are having permission to get married. In addition to this under this act marriages also considered as an uniform process there is no special distinct quote applicable for marriage for those believing in different faith.
Requirements:
The first and foremost thing under this type of marriage is that then are no ceremony’s required. The only thing required is the fundamental legal consent of both the parties. Under the Landmark case of Lata Singh v State of Uttar Pradesh & Anr AIR 2006 SC 2522; (2006) 5 SCC 475; 2006 (56) ACC 234 it was held that the Hindu Marriage Act does not constrain anyone from carrying out an inter-caste marriage. In addition to this district magistrate can also file registrar notice Stating the intention to marry each other with the condition that one of the party has lived 30 days prior to the notice. After 30 days such notice is solemnized. But if there is any reasonable objection by any of the parties the registrar can cancel the registration of such marriage.
Changes:
The first and foremost change after the application of this act is the succession to property to the person married and also the children governed under the Indian succession act. But if both the party wear Hindu it is governed under the Hindu succession act. In 2006, the supreme court made at necessary that all relation union should register their marriage under the Hindu marriage act 1955 or the special marriage act 1954 which is applicable to all people.
Registration:
This type of marriage enables to distinct type of backgrounds to unite in a marriage. Thus it can only be solemnised with proper legal registration. It Is also applicable if both the parties are of the same relation in the register. Under this, various steps are taken by the registrar for the solemnization of such marriage. The first and foremost thing is eligibility check that is reaching out of the concerned marriage officer. After this, a public notice is drafted upon the objection of the application which consist of the promise to marry the party.
Same Sex Marriage:
Our constitution embodies right to equality under Article (14-18). this consists of equality on all grounds whether social, economic or political. All the citizens of our country are deprived of the same until and unless certain general exceptions apply which includes affecting the integrity and sovereignty of the state, affecting international relations with respect to other states, affecting public order and other such grounds. Under the grounds mentioned above, reasonable restriction can be embodied upon right to equality. If any of the citizen doesn’t Billy these rights upon the following grounds, he is deprived for the right to equality. He shouldn’t be discriminated nor been allowed to do so on any of the grounds which maintain social order.
Coming to Same Sex Marriages, same sex marriages are those which are solemnized between two parties considering the partner to be of the same sex. The legislation of such a marriage depends upon various countries. In 2001, Netherland was the first country to introduce homosexual marriages under which around 15000 couples married. In addition to this the same is also applicable to Belgium and Spain. Indian aggregate unit, more than 35 countries have adopted Same Sex Marriages including Andorra, Argentina, Australia Cuba etc. coming to India there is nose specific legislation with respect to same sex marriages. Various petitions were fired in the supreme court to have consideration upon Same Sex Marriages. But in a recent judgement supreme court gave full authority to States and the parliament to make certain laws if required for the legality of such marriages. Five judges bench was organised under which 3:2 ratio was given to the constitutional validity of the same sex marriages in India. The chief justice of India also stated that the striking down or the words of the special Marriage act 1954 can only be done by the parliament or the state legislation. The five judges bench also pointed out the view that marriage is a fundamental right. Justice Kaul and the Chief Justice Of India had given minority opinions regarding the same. There opinions are enlisted as follows:
- The first opinion was that Same Sex Marriages should be given a legal status considering a specific right and duty upon the married couple.
- The civil union, resembles a marriage which should not have the same recognition.
Legality:
Try to marry is not especially recognised as a fundamental right under the Indian Constitution. But the judicial decision of the supreme court is a fundamental right under article 141 of the constitution.
Earlier View:
Under the landmark judgement of Shafin Johan v. Asokan KM. & Ors. 2018, marriage is considered as a fundamental right. Also referring to article 16 of the Universal Declaration of Human Rights and the Puttaswamy case, the right to privacy is mentioned under article 14 19 and 21 following that right of choice is mentioned tender article 21 of the constitution. Considering LGBTQ rights, under the landmark case of Navtej Singh Johar & Ors. 2018 mention all rights and liberty’s under the constitution.
Argument In Favour:
- The first and foremost argument in favour to recognise Same Sex Marriages, under the Special Marriage Act was that people have equal rights and there should be equal protection of the same under law. All individuals have a right to marry and maintain a family. So under this the same sex couples must get same legal opportunities as opposite sex couples do.
- Same Sex Marriages strengthens family and community and would provide socio economic benefits to various families.
- Also, Lohabition is a fundamental right as recognised by the Chief Justice of India and it is the duty of the government to recognise and acknowledge such relations.
- The supreme court also consider that biological gender’s are not absolute. They are more complex than ones genitals. There is no exact concept of a man or woman.
- Finally Same Sex Marriages has a global acceptance which is legally accepted by around 32 countries all over the world.
Arguments Against:
- The first argument against such kind of marriage is religious and cultural belief. According to religious or cultural belief of many people marriage can be only within a man and a woman.
- The next argument is procreation. Under this there can be no biological children under Same Sex Marriages.
- Another argument is the legal issue of inheritance, tax and property rights.
- The next issue is the issue of adoption of children. Queer couples adopt children due to the fear of societal stigma and discrimination. This would put a negative impact on the well being of the child.
Way Forward:
The way forward for such type of marriages is to raise awareness in public opinion regarding the LGBTQ community. Legal reforms must be bought in the amendment of special Marriage Act regarding Same Sex Marriages. In addition to this there should also be an engagement of dialogue within various legal leaders of the community. In addition to this there are also very legal challenges because such a marriage will challenge the constitutionality of present laws. There must also be collaboration from the concentrated effort from all stakeholders, government and religious leaders of a civil society.
Conclusion:
Coming to the conclusion I would like to state that we are working together for an indusuve society under which everyone has the right to love, marry and choose regardless of their gender.
Refference:
www-India today-in.
www.indianexpress-com.cdn.ampproject.org/v/s/indianexpress.com
www.livelaw-in.cdn.ampproject.org