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Law Preventing Marriage Equality in Society

Law Preventing Marriage Equality in Society
- Tanya Gupta, New Law College, Pune


In India, marriage laws only recognize heterosexual unions thereby depriving the same-sex couples legal as well as social recognition in the society. Post decriminalization of same-sex union, the next door is ensuring marriage equality. When the definition of marriage is passed through the prism of constitutionality, it depicts discrimination. Therefore, in contemporary times, not only marriage equality is important but bringing about legal reforms is the need of the hour. In recent years, the Supreme Court of India has enlisted as well as widening the scope of the concepts of autonomy, privacy and constitutional morality. In the case of Navtej Singh Johar vs. Union of India the Supreme Court recognized ‘right to privacy’ and ‘right to choose a life partner’ (which fall within the ambit of Part III of the Indian constitution that defines the scope of Fundamental Rights) to decriminalize gay sex. Marriage Equality means recognizing same sex marriage at par and on an equal platform with the traditional opposite sex marriage. It aims to grant same legal status to the marriages that fall outside the periphery of heterosexual marriages (i.e. between ‘one man, one woman’).

Right of all members of family like Right to Respect for personal and family life, Right to marry and located family, is foundation of justice, freedom and peace. The definition of marriage is often checked out from a legal perspective. A legal dictionary defines marriage as “the state of being united to an individual of the other sex as husband or wife during a legal, consensual, and contractual relationship recognized and sanctioned by and dissolvable only by law.” Legally, marriage may be a binding contract between the 2 parties that joins together their possessions, income, and lives. According to the Hindu Law Marriage may be a body for the performance of spiritual duties. It is also considered to be a union of flesh to flesh and blood to blood. It is a spiritual sacrament and not a civil contract. Section 5 of The Hindu Marriage Act 1955 provides right to marry under statutory condition.

Right to marriage is provided under right charter that to under the heading of” Right to possess family”. In Indian Constitution this right not expressly mentions. But it\'s interpreted under Art 21 Right to Marry is universal right. It is available to all or any persons but whether it includes same sex marriage. There is no specific law for marriage right though it is recognized at international level. Marriage right is mentioned under various other sections but it forbids homosexual marriage. Indian constitution provides for right to marry but it\'s not fundamental right.

Caste system has been a rigid part of Indian customs since ages. It is an evil that has made the principles and regulations of the Hindu tradition biased and unfair. Discrimination supported the class structure has ruined the society and created differences among the people belonging to different castes. Marriage may be a sacred institution especially in context of Indian customs. Even when the planet has become so advanced there are people that follow strict caste rules. Marriages in the Hindu society are caste driven. Inter-caste marriages are considered to be a sin and aren\'t approved by the elders. Hindu society forbids from inter-caste marriages due to various reasons like fear of the societal norms and social standing, loss of reputation, cultural difference, backward superstitions, torture that the family and therefore the couple has got to face at the hands of the society, etc. It hampers the expansion of the society, creates fissures among different social groups and castes and poses a threat to the national unity. There are various instances where couples in inter-case marriages are driven to kill or killed within the name of honour-killings.

In a landmark judgment, Lata Singh Vs State of Uttar Pradesh AIR 2006 SC the Supreme Court viewed the right to marry as a component of right to life under Art 21 of Indian Constitution the court observed that: “This may be a free and democratic country, and once an individual becomes a serious he or she will marry whosoever he/she likes. 

Constitutional challenges to marriage equality :- 

The definition of marriage as solemnized or performed between ‘one man and one woman’ when passed through the prism of constitutional morality, depicts discrimination in different respects. This definition can be challenged on constitutional grounds as violating Articles 14 and 15 on arbitrary grounds. Furthermore, it violates the right to privacy, autonomy and a life with dignity enshrined under Article 21 of the constitution and Freedom of Expression mentioned under Article 19.
The definition of marriage as one man, one woman fails the non- discrimination principle under Article 14 and 15 of the constitution. NALSA held that ‘sex’ under Article 15 includes ‘sexual orientation’ and a ‘person’ under Article 14 includes a person of any gender. Whether this legislative design was developed out of hostility towards same sex couple.

According to Article 14, classification must satisfy two conditions i.e. ‘classification must be supported intelligible differentia which distinguishes persons or things that are grouped together from others overlooked of the group, and second, that the differential must have a rational nexus to the thing sought to be achieved by the statute in question’. Therefore, there is no rational object in discriminating between same and opposite-sex marriage, such discrimination fails Article 14 and 15 simultaneously.

The KS Puttaswamy Vs Union of India gave a landmark judgment that unanimously affirmed Right to Privacy enshrined under Article 21 including autonomy over intimate and personal choices. In the Navtej Johar case, CJI Deepak Mishra held, “An individual in exercise of his choice may feel that he/she should be left alone but no one, and we mean, no one, should impose solitude on him/her”. In India, marriage is the only form of socially acceptable intimate relationship and therefore a law preventing or prohibiting marriage to a partner of one’s own choice will always force that individual to choose between living a secret life, constant fear of exposure and finally living in solitude. Hence, this is contrary to the principles of living a life with dignity as mentioned under Article 21.

The Right to expression of one’s self-identified gender is an important component of Freedom of Expression under Article 19(1) (a). In the Navtej Johar case, C.J.I. Deepak Mishra concluded “Any discrimination on the basis of one‘s sexual orientation would entail a violation of the fundamental right of freedom of expression”. Further, he held, “When biological expression, be it an orientation or optional expression of choice, is faced with impediment, albeit through any imposition of law, the individual‘s natural and constitutional right is dented” with respect to dignity under Article 21.


The universal law of Human Rights states that social norms, tradition, custom or culture can\'t be wont to curb an individual from asserting his fundamental and constitutional rights. Sati, dowry, child marriage and infanticides are practices derived from cultural belief, but the govt still took steps to stop them. On the idea of the entire discussion on the aspect of same sex marriage that\'s should its legalized or not. Homosexuality isn\'t an offence it\'s just how of pursuit of happiness, how to realize sexual happiness or desire. There is absolutely no reason, aside from blind prejudice, which deprives two gay people browsing a civil ceremony which can provide them the rights and securities which heterosexual couples enjoy. We thus got to legitimate same sex marriages so as to move forward within the direction of human rights.


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