ABSTRACT:
Marriage as an institution is two people coming together in a bond to cohabitate for the purpose of procreation as well as fulfilling social standards and obligations of all the socio-economic parameters which are important for survival in society. This would be the definition of marriage in various psychological and sociological aspects of society to define marriage as an institution. When it comes to various other takes on marriage, it is defined differently.
In various forms of defining marriage, all the diverse religions and cultures have their own way of diversifying it, like how both Hindu and Muslim law define the concept.
This is done mythologically. The clear definition is although not mentioned in the marriage act, as the act includes different religious groups clubbed under the religious head of being Hindu, as the HINDU MARRIAGE ACT OF 1955 includes religions like Buddhism, Jainism, and Sikhism in the Hindu religion.
INTRODUCTION:
The section 2[b] of the act gives us the act is applicable to the religion of Buddhism, Jaina, and Sikh as section 2[c] states that anyone who is not the domicile, or within the territory of India as well as is a Christian, Muslim, Parsi or Jew the act will not be applicable on them unless it’s proved that any such person would not be governed by the Hindu law or by any custom or usage as part of that law in respect of matters dealt with herein if this act had not been passed.
What brings to our attention is the relationship which is the restitution of conjugal rights under section 9 of the Hindu marriage act of 1955.
The section precisely mentions that when either husband or the wife has, without any reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made under such petition and there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. This is the ground of the first step towards the movement of the married couple towards the divorce procedure, what is of prime attention of ourselves is the words “husband” and “wife” which expressly give us the idea that the act has taken marriage to be an act done by a biological male and a biological female.
But this is a way to forward when we talk about the act, taking a core element of the society and from where the entire Hindu law has been adopted, Hindu marriage refers to kanyadaan which means gifting a girl to the boy by the father with all the traditional and rites or customs.
Hindu marriage is an ancient tradition which is prevailing from the Vedic periods to the modern world with different modifications that have occurred until now. Therefore, this is by far evident that in Hinduism the concept of marriage is one sacrament, which must not be broken and the bond continues after rebirth and death, as the Vedas state a man is incomplete until he gets married and meets with his partner.
A similar way is the other majority religion law i.e., the Muslim law mentions marriage. Under Muslim law marriage is a contract between a biological male and female. This is so mentioned as the concept of Nikah depends upon free voiation i.e., consent of the parties, but the consent of the wife must be subordinate to that of the husband. The contract concept of the marriage also gives the very important concept of Mehar i.e., the dower concept. This dower concept mentions that the bridegroom concludes the contract with the legal guardianship i.e., Wali of the bride, and undertakes the nuptial gift of Mehar.
Muslim laws major source and school Hedaya mentions marriage as a legal process by which the several process and procreation, legitimation of children between a man and a woman is perfectly valid. It describes the general purpose of marriage to be – that both genders can provide company to one another, procreate, have legitimate children, and live in place and tranquillity, to the commands of Allah.
These evident mentions of all the Hindu and Muslim laws as well as sources state that marriage is acceptable in Indian society and Indian law must happen between a biological male and biological female, which is argued by the activists, NGOs, as well as humanitarian law preachers, is that of why a society with various people living in it, with different religion, culture as well as most importantly a country which has recognized different genders types in its society has to not fully accept the fact that other genders have the right of marriage, and related obligations procreation of children and give them a legitimate name.
This was the exact question before the supreme court in the past years and has been in the picture again during the month of April, when the supreme court has been listening to various same-sex legalization petitions. Here in this case the supreme court heard a petition from same-sex couples and LGBTQ+ activists for a fruitful judgement as the government and religious leaders opposed the same.
BACKGROUND:
The facts of the case state that the lawyers of the petitioner said marriage was a union of two people- not just a man and woman. They argued that laws should be changed to reflect that concepts of marriage have changed over time and that same-sex couples also desire the respectability of marriage. Neither less the opposition, the government side questioned the entire validity of the court’s right to hear the matter at all. They stated that it was not an issue to be decided by the court and only the parliament could discuss the socio-legal issue of marriage.
The two of the many petitioners Dr Kavita Arora and Ankita Khanna who have been in a relationship for 17 years have been waiting to tie the knot for all these years. The basic argument that all the petitioners argue is that ending the discriminatory rule of decriminalization of relationships between same-sex people was the first step against eradicating discrimination. This has been the historic judgment of 2018 in the case of Navtej Johar v/s UOI where the supreme court struck down section 377 of IPC, decriminalizing same-sex marriage relations between consulting adults.
The actual question now in front of the entire society and the judiciary is when the relationship of the same-sex couple has been legalized then why there has been an issue with granting the legalization of same-sex marriage? The first place to realize is why there has been a demand for marriage in the LGBTQ+ community.
Well, the answer to this is that marriage is the bond in Indian society which gives various factors to the wedded couple, and it is not just important for the procreation of a child rather marriage even legitimates the child and gives the couple the legal ship of the child, various health insurance perks as well as other benefits allowed to the wedded couple. These are the same grounds on which the petitioners have argued that legalizing same-sex marriage is important for these couples as well as its non-existence in society has violated various fundamental rights and has been violative of the constitution. On the other hand, the petitioner also states that the opposition when questioning the entire constitutionality of the supreme court to hear the case is of utmost shame because when the matter is of the Constitution it’s only the supreme court to protect and prevail the law of the land.
The supreme court on the other hand has been listening to the case which is also questioning and demanding a change in the wording of the special marriage act of 1954, which expressly mentions the words husband and wife as the other acts which expressly mention marriage to be a bond between a biological male and biological female who recognise themselves to be one, is argued here to be changed as well. The current progress of the case states that the judges may grant and take into consideration the changes in the act as well as grant legal rights to the couple.
CONCLUSION:
From the opinion of both sides of the case, the conclusion is very contrary, to be made. The demand for the UNIFORM CIVIL CODE and its need in Indian society has also been in the picture as well as shown its importance. It would be early to give the ideology of the judiciary when we discuss this case, Neitherless the Indian judiciary has always been in the Favor of the masses and most importantly been the one that protects the constitution, prevail in its validity, and serve the nation with justice.
This article is written by Disha Singh of K.R Mangalam University.
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