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Published : January 27, 2012 | Author : anisa11
Category : family law | Total Views : 19440 | Rating :

Mrs. Anisa Shaikh Asst. Prof. New Law College Pune

Right to Marry: Panoramic View

The three most important events of human life are equally devoid of reason: birth, marriage and death. ~ Austin O'Malley

Marriage is one of the universal social institution. It is established by the human society to control and regulate the life of man. It is a corner stone of a societyMarriage is one of the universal social institution. It is established by the human society to control and regulate the life of man. It is a corner stone of a society.... It is in the family that children learn to become citizens; it is in the family that children learn about relationships; it is in the family that children learn about what is expected of them in society, how to act and how to be. Central to the nuclear family is the traditional idea of marriage, consisting of one man and one woman in a monogamous and permanent relationship. We need to promote and protect marriage to secure a healthier society. Marriage has legitimate recognition to get united. Society accepts union of two souls because primary object of marriage is to beget and bear offspring, and to them until they are able to take care of themselves.

President George W. Bush understands the necessity of marriage and has said, he will support an amendment to the Constitution that defends marriage against the threats from the cultural breakdown. Marriage must remain the standard for family life in the society We cannot renew our country when, within a decade, more than half of our children will be born into families where there is no marriage.

The purpose of marriage is to spiritually, emotionally and physically unite a man and a women together, as husband and wife, in a covenantal relationship between themselves and their Creator. Spiritually in the sense to get spiritual benefit by performing religious duties.

Definition of marriage:
The dictionary defines marriage as “The legal union of a man and woman as husband and wife.” The definition of marriage can be looked at from a legal perspective. A legal dictionary defines marriage as “the state of being united to a person of the opposite sex as husband or wife in a legal, consensual, and contractual relationship recognized and sanctioned by and dissolvable only by law.” Legally, marriage is a binding contract between the two parties that joins together their possessions, income, and lives.

Marriage Under Personal Law
Marriage, according to the Hindu Law,

Marriage is a body for the performance of religious duties. It is deemed as a holy union in Hindu Law. It is also considered to be an union of flesh and flesh and blood and blood. It is a religious sacrament and not a civil contract.

Marriage, according to the Muslim law:

Quran states “every person must marry”. Quran asserts that marriage is the only way to satisfy one’sdesire. Marriage (nikha) is defined to be a contract which has for its object the procreation and the legalizing of children

According to Hari Singh Gour
A marriage is an alliance between man and woman recognized by law. It is sometimes defined as an act, ceremony or process by which relationship of husband and wife is constituted. It is to be pointed out that the meaning of marriage differs in different countries.”

International Perspective:
Modern international conceptions of human rights can be traced to the aftermath of World War II and the foundation of the United Nations The rights espoused in the UN charter would be codified in the International Bill of Human Rights, composing the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The family is the fundamental and natural unit of society and requires the full protection of the state. Human rights law upholds the positive right of all peoples to marry and found a family. It upholds the ideal of equal and consenting marriage and tries to guard against abuses which undermine these principles. It is not prescriptive as to the types of families and marriages that are acceptable, recognising tacitly that there are many different forms of social arrangements around the world.[7]
The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly in 1948. The UDHR urges member nations to promote a number of human, civil, economic and social rights asserting these rights as part of the "foundation of freedom, justice and peace in the world." The declaration was the first international legal effort to limit the behaviour of states and press upon them duties to their citizens following the model of the rights-duty duality.

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

—Preamble to the Universal Declaration of Human Rights, 1948

Article 16 Universal Declaration of Human Right

States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

(a) The same right to enter into marriage;

(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;

(c) The same rights and responsibilities during marriage and at its dissolution; (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount; (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; (f) The same rights and responsibilities with regard to guardianship, warship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount

(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;

(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

Article 23 of the International Covenant on Civil and Political Rights 1966:

(a) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

(b) The right of men and women of marriageable age to marry and to found a family shall be recognized.

(c) No marriage shall be entered into without the free and full consent of the intending spouses.

(d) States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Article 10 of the International Covenant on Economic, Social and Cultural Rights 1966:

The States Parties to the present Covenant recognize that:

The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.

The European Convention on Human Rights:

The ECHR states that all men and women, who have reached the age at which they can legally marry, have the right to get married and to start a family.

The European Convention on Human Rights (ECHR) sets out a list of fundamental rights and freedoms which are believed to be common to all people. The ECHR lists these rights in numbered' Articles'.

Article 8 of the ECHR concerns an individual’s right to respect for their private and family life.

Article 12: Right to marriage

Men and women of marriageable age shall have the right to marry and to found a family, according to national laws governing the exercise of this right.

Marriage is Civil Right
Recognized federal civil rights law in the United States is grounded in the U.S. Constitution as interpreted by the Supreme Court. By this standard, marriage has long been established as a civil right. The operative constitutional text is section 1 of the Fourteenth Amendment, which was ratified in 1868. The relevant passages read as follows: No State shall not make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The U.S. Supreme Court first applied this standard to marriage in
Loving v. Virginia (1967),

Where it struck down a Virginia law banning interracial marriage. As Chief Justice Earl Warren wrote for the majority: The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men ...
To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Marriage is a Constitutional Right

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.

Indian Perspective:
The right to marry is a component of right to life under art 21 of onstitution of India which says, “No person shall be deprived of his life and personal liberty except according to procedure established by law”. in the context of right to marry, a mention may be made of a few Indian cases. Person who suffering from venereal disease,even prior to the marriage cannot be said to have any right to marry so long as he is not fully cured of disease.

Mr.’x’ v. Hospital ‘Z’ AIR 1999 SC 495

The Court had rested its decision on the facts of the case that it was open to the hospital or the doctor concerned to reveal such information to persons related to the girl whom he intended to marry and she had a right to know about the H.I.V. positive status of the appellant. If that was so, there was no need for the Court to go further and declare in general as to what rights and obligations arise in such context as to right to privacy or confidentiality or whether such persons are entitled to be married or not or in the event such persons marry, they would commit an offence under law or whether such right is suspended during the period of illness. Therefore, all those observations made by the Court in the aforesaid matter were unnecessary, particularly when there was no consideration of the matter after notice to all the parties concerned. In that view of the matter, court held that the observations made by this Court, except to the extent of holding as stated earlier that the appellant's right was not affected in any manner in revealing his HIV positive status to the relatives of his finance, are uncalled for. We dispose of these applications with these observations.

Lata singh v.state of Uttar Pradesh, AIR 2006 SC 2522

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 is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste marriage the maximum they can do is that they can cut off social relations with the son or daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such intercaste marriage”.

Both the parents in the case were adults and so free to marry of their choice.’ there is no bar to an inter-caste marriage under Hindu marriage Act or any other law’. intercaste marriages are in fact in the national interest as they will result in destroying the caste-system.

Legally, every young person has right to marry and to enter into a marriage contract. But unlike any commercial contract, responsibilities of the contract of marriage are not limited only within the contractual parties. Marriage is the foundation of a family as well as social relations. A couple owes a great responsibility to the family and society. In other words, right to marry is not an absolute one; it has to correspond to some other duties. For example, among the various objectives of a marriage, two prime objectives are to legalize the sexual intercourse between two persons of opposite sexes, and to procreate children. But through marriage, law does not only give right to two adult persons to satisfy their biological needs and to give birth to legitimate children, but also does impose a duty not to harm their life partner and children in any way. If a person is not able to perform this duty, he/she cannot exercise his/her right to marry

The right to marry is subject to national laws regulating marriage; including laws that prohibit marriage between certain types of people (for example close relatives). Although the government is able to restrict the right to marry, it must not impose limitations which impair the very essence of the right.

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.
*B.S.L.,LL.B.,LL.M.,NET,Faculty of law,New Law College, pune, Maharashtra.
[1] http://www.whimsy.org.uk/marriage.html 20/10/11 thur 3:30 p.m.
# http://www.smartmarriages.com/marriage.quotes.html  07/06/2001
# President Bill Clinton who in 1996,signed the TANF welfare-reform bill that included among its goals
# “Increasing the number of children living with their two married parents”. http://www.smartmarriages.com/marriage.quotes.html 20/10/2011 Thurs 2.00p.m.
# Manusmriti IX
# Qran 24:32
# Mohmmedan Law ,Aqil Ahmed
# http://www.hrea.org/index.php?doc_id=425 20/10/11 atb4:00 p.m.
# J.polak basu ,law relating to protection of human right under Indian constitution allied laws,2009
# In its General Comment No 19 of 1990, the Human Rights Committee comments on family protection: http://www2.ohchr.org/english/bodies/hrc/comments.htm. 20/10//11at 4:00 p.m.
# [10] U.K.T.S.6(1977).cmnd,6702
# B&L V/S U.K.(2005),GOODWIN &UK (2002)
# http://www.equalityhumanrights.com/human-rights/what-are-human-rights/the-human-rights-act/right-to-marry/  20/10/11 at 3:00 p.m.
# http://civilliberty.about.com/od/gendersexuality/f/Is-Marriage-a-Civil-Right.htm  20/10/11 at 4:00
# http://www.liberty-human-rights.org.uk/human-rights/human-rights/the-human-rights-act/what-the-rights-mean/article-12-right-to-marry.php 20/10/11 at 4:00 p.m.
# http://www.nbjc.org/news/is-marriage-a-constitutional.html 20/10/11
# lawyersclubindia.com/forum/Right-to-marriage-45053.asp" target="_blank"> http://www.lawyersclubindia.com/forum/Right-to-marriage-45053.asp 20/10/11 thurs 5:00 p.m.
# J.palok basu ,law relating to protection of human right under the Indian constitution ,2009
# 1998(7)JT(SC)626:1998 (6)scale 230:1998(9)supreme220:1998(9)SLT418:1999(1)SRJ88
# A, C & Ors. v. Union of India & Ors. (1999) WRIT PETITION NO. 1322 OF 1999 http://www.chr.up.ac.za/undp/other/docs/caselaw12.pdf 20/10/11 2011 5:00 p.m.
# http://www.thedailystar.net/law/2008/02/02/index.htm 20/10/11 thur 5:00 p.m. Zahidul Islam Biswas, an advocate of the Supreme Court of Bangladesh, is currently with the Centre for the Study of Law and Governance, JNU, New Delhi.

Authors contact info - articles The  author can be reached at: anisa11@legalserviceindia.com

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Article Comments

Posted by sahil on December 19, 2014
I got marrid to a hindu girl. but my lawyer does not givr me marrige certificate. when I ask for that then he told that in this case you will not get any kind of certificate except the marrige papers known as MAHER IKRAARNAMA. Is he correct?? in tthis ikrarnama I read all the things afwter conclusion I found that it is the letter in which our nikah is registere in court. is this the actual court marrige??

Posted by rajveer on October 28, 2012
i am a hindu guy.in 2005 i got married to a muslim girl under special marriage act 1954.but in 2007 she got married(nikah) to a muslim guy forcefully by her parents.but now she wants to come back to me.is her nikah legal?what shoul we do?please suggest. is her marriage null and void?can her parents give police complain against me if i will bring her?should i go to police when she will come to me?

Posted by Paris on September 01, 2012
perfect design on legalservicesindia.com thanks

Posted by Monika Sharma on April 28, 2012
Respected Mam,

Mam i sent my case to Kiran mam in safer india,she sent me your mail id,plz help me mam.My name in Monika Sharma.I m from Punjab(moga).

Mam i was married in 2001 with Sanjeev Sharma in Jaladhar. My in laws family mother-father and two sisters, my husband both sisters are married. They both are elder to my husband.

Mam in my family my mother, father and i have one brother, he is married and settled in Canada.

Mam i was happy in my husband's house. He was very gud. My father in law was living in ITALY since 30,40 years. I blessed with son in 2003.Then my father in law came back to india. Mam my father in law and my elder sister in law her name is Rajni both were doing interfering in our life. My sister in law Rajni always demands for new things from my husband. And my father in law always saying to my husband why you both not going to Canada to can go and settle there, ask Monika brother he will do something. Then my husband always told me to ask my brother when his going to apply visa for us. That time my brother was not well settled in Canada.

In 2007 my brother got both kidneys failure. My husband told me you should go must to save your brother's life. Mam i went Canada and my husband himself drop me Delhi Airport. He was very happy when I came back from Canada. i brought gold sets for my both sister in laws with my husband's permission. When both sisters came at our home i showed gold sets to both then Rajni told me i want ear rings also, when u will give me set give me ear rings also, but his elder sister Manju she did not said anything. But my husband told mummy its costly set, I can't afforded now ear rings for both, if i will give one to her the i should give same 2nd didi also. But mother in law did not say anything.

when ever any festival comes Rajni call to mummy and always demand i want this i want that. And my father in law also saying to my husband give them what they want, they never thinking mam he is only one person who is earning, and he is married he has also son, he has his own life. And mam i brought a gold Kada bangle for my husband from Canada i gave him on his birthday gift, Rajni's husband saw it and he said to sanjeev oh Monika's brother gave u gold bangle in exchange of kidney, after that my husband was very upset, he did fight with me same night. After that mam Rajni's brother in law get married, his wife parents gave them AC on their 1st festival after marriage, Rajni called at our home she told mummy they gave them AC ,i also want big gift, mummy tell Sanjeev she wants a big gift she said what my mother in law will say, ur parents did not give big gift, but my husband told her she is newly married and its her first festival, its not ur first festival, if i will give u costly gift i will give the same another sister also, i will see my pocket, but she always demanding. One day mam she and her husband came at our home ,she said today we will go out for dinner, but my son health was not godhead was suffering from fever and stomach infection, I said i will not go u all go and enjoy, she said why Monika saying no in front of my husband, and (Sanjeev)my husband did fight with me agian, but he said mother to also mummy plz tell didi dont' make any programme, when we want we will go don't interfere in our life. In 2007 in Dec i went to Moga my mummy house, and my husband took me 26 Dec, we came in jalandhar, he said to me i m so upset i want 16 lack rupees , ask to Your brother. But i did not ask to them, at night he said i have to pay sum parties 16 laks and 10 laks, but what he did with that money i don't know, he got loss in business. In 27 Dec he got suicide, and gave dying statement against my brother and bhabi and my mother.. my mummy daddy was also came in jalandhar, police arrest my mummy, after 10 days Ashok and Sonu told me u should go Moga with your Daddy, i did not know what was going in their mind that time, they call my dad, when i was going with my son, my mother in law said don't come back. We want raghav only. Ashok was calling every day give us Raghav other wise we will do case on u also, you will get jail then we will took raghav, if you will give raghav back to us will take back our case against you parents.

I asked to my lawyer he said yes if parents will give statement against then case will file on u, u will get jail for 10 years then they will took ur son, i thought its better i will give my son, i did not have any option that time mam. we did compromise, their lawyer make a papers he wrote Monika will not meet raghav ,she did not have any right on her son, she will never case file for him. i was helpless mam. i was not doing job that time. then i did compromise. I gave Raghav custody to my father in law, but now days my son is not living with them he is with elder sister 's house, before they said we will take raghav at our home but now why they give my son to their daughter after compromise they gave my passport and my all documents, after that i did IELTS and i went dubai and now i m doing job, I did also second marriage, because my parents are old mam, and u know for young lady very difficult stay alone, my father also have heart patient. Then they said we have tension for you. but my husband is ready to take my son, Mam i need ur help plz.i don't want money, I want only my son,mam when you will call i will cum India, anytime.i will cum for my son. I want my son mam. i want to send my all case papers, so that u can read properly.plz help me mam.

Mam my contact Number is 971 -50-2958258.Thx

Posted by kunal dubey on February 06, 2012
Great article Mam ,I found it very interesting and very useful for me and by using just simple vocab you wrote wonderful article

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