right to marry has been a crucial part of the social institution in human
civilization. This right has been exercised universally and in a generic
sense. It has also been termed as primarily an institution of a male and a
female. With the world becoming a common platform to address issues with regard
to the rights enjoyed, and with cultivating awareness of
sociology, same-sex marriage has become an intense issue. As known
globally, the US has legalized same-sex marriage uniformly. However, in India,
it is still controversial as it is considered a phenomenon of orthodox
background. Furthermore, the laws in the US have only been recently formed
after worldwide protest against non-uniformity and disapproval against
punishment in some states.
legal status or relationship that results from a contract through which a man
and a woman, who have the capacity to accept such an agreement, mutually vow to
live together in the relationship of Husband and Wife in law for life, or until
the 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 husband
and wife new rights and duties. Public policy is intensely in favour of
marriage formed on the belief that it preserves the family unit. The
traditional principle upon which the institution of marriage is formed is that
a husband has the obligation to support his wife, and it’s a wife’s duty to
serve. In the past, this meant that it is the husband’s duty to provide a
safe house, to look after their necessities such as food and clothing, and to
live in the house. A wife’s obligation has traditionally entailed maintaining a
home, living in the home, having sexual relations with her husband, and giving
birth to their offspring.
not clearly specified, the Constitution of India does not give a particular Article
as right to marry, however surely brings it under the ambit of Article 21. This
Article discusses the Right to life and personal liberty, and the privilege to life and individual freedom, in
which it has been propounded that marriage is likewise a crucial piece of
driving a noble life. Every individual has the authority to marry unless there
are sensible limitations such as venereal diseases. Since, the Indian
population practices different religions; there are different individual laws
which have been naturally subject to the time long practices and traditions
being 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 considered
as a heavenly union. It is additionally thought to be a union of the fragile
living creature and blood. It is a religious ceremony and not a legal contract.
Marriage, as indicated by the Muslim law: Quran states “each individual must
marry”. 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 the
reproduction and the sanctioning of youngsters. The Hon’ble Supreme court of
India in the case Mr ‘X’ vs. Hospital ‘Z’3
has recognised the Right of an individual to marry but has held that, a person
who went to the hospital for some treatment and therefore it was found by the
hospital authorities that the person was HIV positive, was under a moral
obligation not to marry. Later the hospital authorities informed his would-be
wife about this which became an impediment in their matrimonial ceremony.
Looking at the facts, there must be a principle of professional confidentiality
and they should not have revealed such personal information to his would-be
wife without seeking his permission. In this case the court ruled that right to
marry is not an absolute right. If a person is aware about his venereal
disease, he has an obligation to reveal such facts before marrying. Also in Lata Singh vs. State of Uttar Pradesh 4
the Supreme Court has held that the right to marry as a component of right to
life under Article 21 of Indian Constitution
by saying 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 inter-caste marriage”.
a 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 are
inapplicable and therefore a superior organization of these laws can be watched.
Marriage laws have changed remarkably amid United States history, including the
removal of bans on interracial marriage and same-sex marriage. Relational
unions change extends as far as religion, financial status, age,
responsibility, etc. Explanations behind marrying might include a craving to
have love, children or financial security. Marriage has been a way in some
occasions to gain citizenship by getting a green card. However, the Immigration
Marriage Fraud Amendments of 1986 set up laws to rebuff such occurrences. The
US Supreme court first applied this standard to marriage in Loving
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 the US Constitution,
the freedom to marry, or not marry, a person of another race resides with the
individual and cannot be infringed by the State. Some
other important case laws to support this are Meyer v Nebraska7
in 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 Skinner
v. Oklahoma ex rel. Williamson8
marriage is held to be “one of the basic civil rights of man” and
“fundamental to the very existence and survival of the race.”
India, the section 377 of the Indian Penal Code 18609, which
came into force in 1862- defines unnatural offences. It says, “Whoever
voluntarily has carnal intercourse against the order of nature with any man,
woman or animal, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to 10 years, and
shall also be liable to fine.” The Delhi High Court had in July 2009
de-criminalised consensual homosexual acts in private by declaring as
unconstitutional 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 the
constitutional validity of Section 377 IPC, an SC bench headed by Justice GS
Singhvi, put the ball in the Parliament’s court, saying it was for the
legislature to take a call on the desirability of the controversial provision. Whereas, in the USA
in 2013, in United
States v Windsor10,
the Court invalidated a provision of the Defense of Marriage Act (DOMA) on the
grounds that it violated the equal protection principles embodied in the Due
Process Clause of the Fifth Amendment. In a 5 to 4 decision by Justice
Kennedy, the Court said “careful consideration” had to be given to
“discriminations of unusual character.” That, coupled with the
deference that the federal government owes states with respect to how they
define marriage, led to striking down the federal law that did not recognize
same-sex marriage for federal purposes (e.g, joint filing of a tax return) even
when a couple was lawfully married under state law. In dissent, Scalia
suggested that the decision would soon lead to another declaring state bans on
same-sex marriage unconstitutional, and argued the matter was better left to
the states to decide.
Then in 2015, facing a circuit split, the Supreme Court resolved
the question of whether state bans on gay marriage violated the Equal
Protection and the Due Process Clause of the 14th Amendment. In Obergefell
a five-member Court majority concluded that the bans did indeed violate both 14
Amendment provisions. Writing for the Court, Justice Kennedy said the Framers
of the Constitution “did not presume to know the extent of freedom in all
of its dimensions, and so they entrusted future generations a charter
protecting the right of all persons to enjoy liberty as me we learn its
meaning.” With “new insights” into liberty’s meaning,
“The Court now holds that same sex couples may exercise the fundamental
right to marry.
to the atomic family is the traditional thought of marriage, comprising of one
man 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 essential
segment of marriage is to conceive and bear offspring, and to them until they
can deal with themselves. For whatever period of time that there is
heterosexual marriage as a state organization, there ought to be gay person
marriage too. Since we are all, as our establishing fathers said, made equal,
any rights ensured to one gathering of individuals must be associated to all
individuals. In disagreement to mainstream thinking, gay individuals aren’t
simply searching for a right to marriage. They’re searching for equal rights
and advantages to their cognate subjects. Why must gay relational unions be
permitted in India? This is a common query and is an appropriate query.
Consistently talking, each individual has a fundamental right to life ensured
by the Indian constitution. This might be deciphered as though a resident picks
a gay accomplice in his/her life, it might be permitted. As marriage is a legitimate
method for tying two individuals together, the gay relationship can be
legitimized through marriage, which will keep the instances of illegitimate
mystery relations. Another sensible point is “respect”. An attractive
individual life is as much a privilege of gay couples as straight couples.
in this research the researcher attempts to compare and examine the key
differences in “right of same sex marriage” in India and the USA.
Gupta, “Right to Marry: Comparative study of same- sex marriage in India and
USA”, Racolb Legal, posted on; 19th
Marriage Act 1955.
Mr’X’ v. Hospital ‘Z’ AIR 1999 SC 495.
4 Lata Singh
v. State of Uttar Pradesh, AIR 2006 SC 2522.
Gupta, “Right to Marry: Comparative study of same- sex marriage in India and
USA”, 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, “Right
to Marry: Comparative study of same- sex marriage in India and USA”, Racolb Legal, posted on; 19th July 2017.