Theright to marry has been a crucial part of the social institution in humancivilization. This right has been exercised universally and in a genericsense.
It has also been termed as primarily an institution of a male and afemale. With the world becoming a common platform to address issues with regardto the rights enjoyed, and with cultivating awareness ofsociology, same-sex marriage has become an intense issue. As knownglobally, the US has legalized same-sex marriage uniformly. However, in India,it is still controversial as it is considered a phenomenon of orthodoxbackground. Furthermore, the laws in the US have only been recently formedafter worldwide protest against non-uniformity and disapproval againstpunishment in some states.Thelegal status or relationship that results from a contract through which a manand a woman, who have the capacity to accept such an agreement, mutually vow tolive together in the relationship of Husband and Wife in law for life, or untilthe legal ending of the relationship is a marriage contract1.
In simple words, it is a legally sanctioned contract between a man and a woman.Entering into this contract changes the legal status of parties, giving husbandand wife new rights and duties. Public policy is intensely in favour ofmarriage formed on the belief that it preserves the family unit. Thetraditional principle upon which the institution of marriage is formed is thata husband has the obligation to support his wife, and it’s a wife’s duty toserve. In the past, this meant that it is the husband’s duty to provide asafe house, to look after their necessities such as food and clothing, and tolive in the house.
A wife’s obligation has traditionally entailed maintaining ahome, living in the home, having sexual relations with her husband, and givingbirth to their offspring. Asnot clearly specified, the Constitution of India does not give a particular Articleas right to marry, however surely brings it under the ambit of Article 21. ThisArticle discusses the Right to life and personal liberty, and the privilege to life and individual freedom, inwhich it has been propounded that marriage is likewise a crucial piece ofdriving a noble life. Every individual has the authority to marry unless thereare sensible limitations such as venereal diseases. Since, the Indianpopulation practices different religions; there are different individual lawswhich have been naturally subject to the time long practices and traditionsbeing taken after.
These traditions have come to fruition as individual laws.These individual laws characterize marriage. As stated by the Hindu Law2;marriage is a body in the execution of religious obligations. It is consideredas a heavenly union. It is additionally thought to be a union of the fragileliving creature and blood. It is a religious ceremony and not a legal contract.Marriage, as indicated by the Muslim law: Quran states “each individual mustmarry”.
It expresses that marriage is the best way to fulfil one’s yearning.Marriage (Nikah) is identified as an agreement which has for its question thereproduction and the sanctioning of youngsters. The Hon’ble Supreme court ofIndia in the case Mr ‘X’ vs. Hospital ‘Z’3has recognised the Right of an individual to marry but has held that, a personwho went to the hospital for some treatment and therefore it was found by thehospital authorities that the person was HIV positive, was under a moralobligation not to marry. Later the hospital authorities informed his would-bewife about this which became an impediment in their matrimonial ceremony.
Looking at the facts, there must be a principle of professional confidentialityand they should not have revealed such personal information to his would-bewife without seeking his permission. In this case the court ruled that right tomarry is not an absolute right. If a person is aware about his venerealdisease, he has an obligation to reveal such facts before marrying. Also in Lata Singh vs. State of Uttar Pradesh 4the Supreme Court has held that the right to marry as a component of right tolife under Article 21 of Indian Constitutionby saying that; “This is a free and democratic country, and once a person becomes a major he orshe can marry whosoever he/she likes. If the parents of the boy or girl do notapprove of such inter-caste marriage the maximum they can do is that they cancut off social relations with the son or daughter, but they cannot give threatsor commit or instigate acts of violence and cannot harass the person whoundergoes such inter-caste marriage”.Beinga government republic, the US states have distinctive laws from one another,however they are regularized by the middle to be accommodating5.
Every State has a law for marriage. The religious obstructions in US areinapplicable and therefore a superior organization of these laws can be watched.Marriage laws have changed remarkably amid United States history, including theremoval of bans on interracial marriage and same-sex marriage. Relationalunions change extends as far as religion, financial status, age,responsibility, etc. Explanations behind marrying might include a craving tohave love, children or financial security. Marriage has been a way in someoccasions to gain citizenship by getting a green card.
However, the ImmigrationMarriage Fraud Amendments of 1986 set up laws to rebuff such occurrences. TheUS Supreme court first applied this standard to marriage in Lovingv Virginia6where it struck down a Virginia law banning interracial marriage. AsChief Justice Earl Warren wrote for the majority: “The freedom to marry haslong been recognized as one of the vital personal rights essential to theorderly pursuit of happiness by free men …”To deny this fundamental freedomon so unsupportable a basis as the racial classifications embodied in thesestatutes, classifications so directly subversive of the principle of equalityat the heart of the Fourteenth Amendment, is surely to deprive all the State’scitizens of liberty without due process of law. The Fourteenth Amendmentrequires that the freedom of choice to marry not be restricted by invidiousracial discriminations.
Under the US Constitution,the freedom to marry, or not marry, a person of another race resides with theindividual and cannot be infringed by the State. Someother important case laws to support this are Meyer v Nebraska7in which the right “to marry, establish a home and bring up children”is a central part of liberty protected by the Due Process Clause. Also in Skinnerv. Oklahoma ex rel. Williamson8marriage is held to be “one of the basic civil rights of man” and”fundamental to the very existence and survival of the race.”InIndia, the section 377 of the Indian Penal Code 18609, whichcame into force in 1862- defines unnatural offences. It says, “Whoevervoluntarily has carnal intercourse against the order of nature with any man,woman or animal, shall be punished with imprisonment for life, or withimprisonment of either description for a term which may extend to 10 years, andshall also be liable to fine.
” The Delhi High Court had in July 2009de-criminalised consensual homosexual acts in private by declaring asunconstitutional a part of Section 377 of IPC that criminalises unnatural sex,saying “the section denies a gay person a right to full personhood” but then,the Supreme Court chose to reverse the verdict in December 2013. Upholding theconstitutional validity of Section 377 IPC, an SC bench headed by Justice GSSinghvi, put the ball in the Parliament’s court, saying it was for thelegislature to take a call on the desirability of the controversial provision. Whereas, in the USAin 2013, in UnitedStates v Windsor10,the Court invalidated a provision of the Defense of Marriage Act (DOMA) on thegrounds that it violated the equal protection principles embodied in the DueProcess Clause of the Fifth Amendment. In a 5 to 4 decision by JusticeKennedy, the Court said “careful consideration” had to be given to”discriminations of unusual character.” That, coupled with thedeference that the federal government owes states with respect to how theydefine marriage, led to striking down the federal law that did not recognizesame-sex marriage for federal purposes (e.g, joint filing of a tax return) evenwhen a couple was lawfully married under state law.
In dissent, Scaliasuggested that the decision would soon lead to another declaring state bans onsame-sex marriage unconstitutional, and argued the matter was better left tothe states to decide.Then in 2015, facing a circuit split, the Supreme Court resolvedthe question of whether state bans on gay marriage violated the EqualProtection and the Due Process Clause of the 14th Amendment. In Obergefellv Hodges11,a five-member Court majority concluded that the bans did indeed violate both 14Amendment provisions. Writing for the Court, Justice Kennedy said the Framersof the Constitution “did not presume to know the extent of freedom in allof its dimensions, and so they entrusted future generations a charterprotecting the right of all persons to enjoy liberty as me we learn itsmeaning.” With “new insights” into liberty’s meaning,”The Court now holds that same sex couples may exercise the fundamentalright to marry.Fundamentalto the atomic family is the traditional thought of marriage, comprising of oneman and one lady in a monogamous and eternal relationship12.We have to elevate and ensure marriage to secure a more advanced society.
Society acknowledges union of two souls on the grounds that the essentialsegment of marriage is to conceive and bear offspring, and to them until theycan deal with themselves. For whatever period of time that there isheterosexual marriage as a state organization, there ought to be gay personmarriage too. Since we are all, as our establishing fathers said, made equal,any rights ensured to one gathering of individuals must be associated to allindividuals.
In disagreement to mainstream thinking, gay individuals aren’tsimply searching for a right to marriage. They’re searching for equal rightsand advantages to their cognate subjects. Why must gay relational unions bepermitted in India? This is a common query and is an appropriate query.Consistently talking, each individual has a fundamental right to life ensuredby the Indian constitution. This might be deciphered as though a resident picksa gay accomplice in his/her life, it might be permitted. As marriage is a legitimatemethod for tying two individuals together, the gay relationship can belegitimized through marriage, which will keep the instances of illegitimatemystery relations. Another sensible point is “respect”. An attractiveindividual life is as much a privilege of gay couples as straight couples.
Thus,in this research the researcher attempts to compare and examine the keydifferences in “right of same sex marriage” in India and the USA.1 KamakshiGupta, “Right to Marry: Comparative study of same- sex marriage in India andUSA”, Racolb Legal, posted on; 19thJuly 2017.2 HinduMarriage Act 1955.3Mr’X’ v. Hospital ‘Z’ AIR 1999 SC 495. 4 Lata Singhv.
State of Uttar Pradesh, AIR 2006 SC 2522.5 KamakshiGupta, “Right to Marry: Comparative study of same- sex marriage in India andUSA”, Racolb Legal, posted on; 19th July 2017.6 Loving v. Virginia, 388 U.S. 1 (1967)7 Meyer v. Nebraska, 262 U.
S. 390 (1923).8 Skinner v. State of Oklahoma, ex.rel. Williamson, 316 U.
S. 535 (1942).9 Indian Penal Code 1860.10 United States v.
Windsor, 570 U.S.(2013).11 Obergefell v. Hodges, 576 U.
S. (2015).12 12 Kamakshi Gupta, “Rightto Marry: Comparative study of same- sex marriage in India and USA”, Racolb Legal, posted on; 19th July 2017.