Introduction:
India being a secular country is governed by various personal laws. It includes laws regulating adoption, inheritance, marriage, divorce, succession adhering to different religions. Since the country holds unvarying criminal and procedural laws, it becomes necessary to introduce uniform personal laws as well. This leads to the need for a Uniform Civil Code in the country. Uniform Civil Code as the name suggests refers to a Civil Code which is uniform, i.e., applicable to all. It includes laws related to adoption, marriage, inheritance, divorce, succession applicable to all religions.
The Constitution of India guarantees fundamental rights to every citizen based on which laws are framed. The legislative and judicial body has to consider that no contemporary or former law must be violative of these fundamental Rights. The right to Equality is considered as one of the prominent rights which is granted to every Indian National. But these personal laws are partially violative of Article 14 of the Constitution. Prior to the famous and landmark case of Mohd. Ahmed Khan v. Shah Bano Begum[1],also known as Shah Bano case, maintenance under Section 125 CrPC was granted to Hindu women which were certainly violative of Article 14 of the Indian Constitution. A Hindu married woman holds the right to be maintained even after divorced under Section 125, subjected to certain conditions. Muslim women were only granted Mehar amount assured at the time of nikah. This is one such example of the vagueness of personal law.
Later the Shah Bano case came out as a shining light for Muslim women and now, they can also file for maintenance under Section 125 CrPC. Similarly, there are certain other personal laws that ignore the rights of women over property and divorce, inheritance. There are certain Constitutional Remedies for the Fundamental Rights but not against the discrimination and infringement under personal laws. The personal laws are somewhat violative of the human rights guaranteed under various International Conventions.
Article 16 of the Universal Declaration of Human Rights guarantees the right to marriage as a fundamental right of every human being. The Constitution of India does not expressly guarantee the right to marriage but can be interpreted under Article 21. The right to marry is a universal right.
As Austin O’Malley once said, there are three big events in human life; birth, marriage, death. All these events are unavoidable and are necessary for the course of life. The purpose of the marriage is to unite two human beings into a covenantal relationship to discharge religious, social responsibility and to create a family.
Definition of Marriage
Marriage in general refers to the meeting of two souls, mind and body. It refers to the legal union between man and woman as husband and wife. The legal definition of marriage refers to, “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.”[2]Marriage is a legal contract between two parties that makes joint possession over income, and lives.
Definition under Personal Law
Personal laws are those civil laws that are influenced by the faith of the religion, caste, faith, and belief of the community.
Hindu Law
According to Hindu Law, marriage is considered as a holy union of two souls which bring together two families and create harmony in society. Marriage is considered a sacrament under Hindu Law. A man and a woman are united to perform religious duties and to perform virtuous deeds during their lifespan. The main motive of this union is to create progenies and to transfer the ordination and their customs to them.[3] Marriage under Hindu law can be registered through Section 5 of the Hindu Marriage Act, 1955.
Muslim Law
Since Muslim Law is derived from Quran, hence Quran makes it mandatory for every Muslim individual to marry. Under Muslim Law, marriage is considered as nikah and is a civil contract (nikahnama) between a Muslim man and a woman. A certain amount of money known as Mehar is required as a form of consideration to complete the contract. The Quran implies that marriage is the only way to satisfy one’s desires. The main objective of the nikah is to procreate. Law that governs Muslim marriage is the Muslim Marriages Registration Act, 1981.
Marriage is a Civil Right
The right to marriage is considered more fundamental than the right to life. Every individual holds the capacity to marry anyone of their choice, hence it becomes necessary to establish marriage as an expressed fundamental right. Currently, marriage is interpreted under Article 21 Right to life. However, the courts have been expanding the right of marriage through their various judgments. In the case of Mr. X v. Hospital Z[4], the Hon’ble court held that the person should not be deprived of his right to marriage even if he is suffering from some vulnerable disease before marriage. In the present case, the appellant was suffering from HIV and the hospital’s authority intimidated the relatives of his fiancé about this illness. Later on, the marriage was called off by his fiancé. The appeal was raised that his right to marriage was violated. The court made an observation that the right to privacy or confidentiality between the doctor and the appellant was not violated. The doctor needs to decide as to what facts are to be revealed or not. Also, it was necessary and falls in the ambit of rights for the girl to know about the illness, as concealment of any such facts will make the marriage void, and will also constitute fraud. Moreover, the court dismissed the application of the appellant. Hence the appellant’s right to marry was not violated.
Further, in the case of Lata Singh v. State of Uttar Pradesh[5], the court held that the right to marriage is an essential element of the right to life guaranteed under Article 21 of the Constitution. Once the boy or the girl attains the age of majority, they can marry anyone of their choice, even if their parents didn’t approve of it. The most families can do is to remove the couple from their society or can cut off social linkage with them. Families do not hold any right to commit, threaten or instigate violence against the couple.
The court also held that there is no bar to committing inter-caste marriage under Hindu Marriage Act or any other law. The court also observed that in fact these inter-caste marriages are healthy for our society as this will help to tackle the caste system.
Marital Rights for LGBTQIA+ Community
With the Shah Bano, there has been an ongoing spark to introduce UCC in personal laws. The personal laws are violative of the rights of women and Article 14, guaranteed under the Constitution of India. Enforcement of UCC now becomes with the increase in demand of gay marriage. LGBTQI+ community is considered a sexual minority community. They are deprived of certain fundamental and legal rights. The ruling party at a prestigious international stage like United Nations Human Rights Council, expressed their intention against the establishment of rights for the LGBTQIA+ community as it is against the religious belief of the country. In 2019, the government also passed the Surrogacy (Regulation) Bill. 2019 which refrains the live-in couples and LGBTQIA+ community to commit surrogacy. This is one such incident of how this community is legislatively excluded. In the landmark case of National Legal Service Authority v. Union of India[6], the apex court confirmed the legal validity of the third gender and also recognized their fundamental rights under Article 14 and Article 21. Later in 2018, the apex court decriminalized all consensual sex among adults, including homosexual sex in the case of Navtej Singh Johar v. Union of India[7]. The court held Section 377 of IPC unconstitutional. This Section talks about unnatural offenses. The court also opined that it is the choice of the LGBTQIA+ community to indulge in an intimate act or not and with whom. The sexual orientation of this community is their identity. Hence it can’t be criminalized if the consensus of both individuals is involved.
Further in 2019, Madras High Court held that a marriage between a Hindu man and a Hindu trans woman can be considered a valid marriage as per Section 5 of the Hindu Marriage Act. this was held in the case of Arun Kumar & Other v. The Inspector General of Registration and Others[8].
As of now the situation of the right of marriage for the LGBTQIA+ community is that there are plenty of petitions filed in Delhi High Court to give recognition to same-sex marriage. This will enable the community to register their marriage and to start a family of their own. The recognition of gay marriage will help them with their right of inheritance, adoption, abortion, and legal documents as well. They then will be able to access various benefits granted by the government, like joint bank accounts.
UCC and Same-Sex Marriage
India is a land of culture, customs, and religious beliefs. Every individual holds the right to choose their religion and the personal laws which will govern them. Legalizing gay marriage in a nation where personal decisions depend upon religion and custom is a tough job. In India, no religion or custom recognizes marriage between the same sex. Such a type of marriage is opposed by customs and society. Hence it is mandatory to increase awareness among the society about this concept and to give them time to adjust to such modern society. With societal awareness, some stringent laws are required to recognize and provide legal protection for same-sex marriage. In the year 2017, the Law Commission submitted a report on the issues and benefits of UCC, to the central government. The draft was later published including the issue and benefits of legalizing same-sex marriage. The draft includes the definition of marriage under UCC. It says marriage is the union of a man with the woman, a man with another woman, a woman with another woman, a transgender with another transgender, or a transgender with another man or woman. The draft also includes the definition of partnership. The partnership has been defined as living together of a man with a woman, a man with another man, a woman with another woman, a transgender with another transgender, or a transgender with a man or a woman. UCC can benefit from sanctioning same-sex marriage in the following ways:
- Enforcement of UCC will lead to the renunciation of personal law removing the bar in the solemnization of same-sex marriages, thus granting the right of inheritance to their offspring.
- UCC can provide legislative protection to a same-sex couple. They as a pair can sue anyone who tries to infringe their rights as granted to a married couple.
- Registration of same-sex marriage will open the roadway to adoption, inheritance, and custody of child/ children.
- The partnership can be concluded as a couple imposing rights and obligations in the marriage as a married couple and will also help in a divorce.
- The same-sex couple will sustain a family of their own by adopting a child or through surrogacy. It will grant them the legal right to communicate with surrogates for themselves irrespective of their sexual orientation.
- UCC can help to recognize such couples and safeguard them from any cruelty from society.
Benefits of Uniform Civil Code
In this modern era, where everybody can choose their partners irrespective of sex, caste, creed, religion, and also when an entire community may it be Muslim or Hindu women or LGBTQIA+ community is demanding their civil right to marry. It becomes necessary to enforce Article 44 in the legislature. This will protect the rights and existence of an individual. Some of the benefits of implementing UCC are:
- UCC will help to protect the vulnerable sections of society and will promote gender equality. The personal laws are gender-biased and do not promote unity and equality. Hence, they need to be washed off. This will also promote the disciples of Unity, Integrity and Fraternity enshrined in the Constitution of India.
- The implication of UCC will simplify the complex laws of adoption, surrogacy, and marriage, inheritance. This will maintain uniformity in personal law and will wrap up the concept of segregated laws like Hindu Law, Sharia Act.
- In order to promote secularism, the citizens of the nation must be kept on the same weighing scale. They must also be governed by uniform laws, not that a Muslim gets certain benefits and a Hindu is restrained.
- The implementation of UCC is necessary to promote humanity, equality, and modesty among the society and to tackle the privileges based on religion or community.
Conclusion
The legislature of a country works for its citizens; hence it is the duty of them to implement laws that protect and benefit them. The vagueness in personal law needs to be swept off and it is in need of an hour to introduce Article 44 into the picture, as the cruelty against the vulnerable section such as the LGBTQIA+ community and women is on the peak. The Constitution of India in Article 14 guarantees equality to all of its citizens. Every individual has an inherent right to spend their lives in whatever manner they choose. They hold the authority over the choice of the partner they want. So why the choice of the LGBTQIA+ community is questioned or why are refrained they from doing their basic civil rights or something they wish to? Their choices of must are respected and legalized in order to not restrain them from their civil rights. Introducing UCC will create a revolution in modern society and will change the facet of marriage. Society has to accept the fact that no two individuals are the same and not their likings are. Every individual has their taste and they might like something different for society. In my opinion, reforms must also be carried out to change some criminal laws as well because not just men or women there is a third gender which is subject to some heinous criminal offense thus, they should also be included in the ambit of such offenses. The only way we could provide justice to our upcoming generation is to accept their needs and wants, in order to create harmony and walk hand in hand with them.
References:
[1] 1985 (1) SCALE 767; 1985 (3) SCR 844; 1985 (2) SCC 556; AIR 1985 SC 945
[2] Legal Service India, Right to Marry, http://www.legalservicesindia.com/article/1001/right-to-marry.html
[3] M.P. Jain, Matrimonial Rights in India http://14.139.60.114:8080/jspui/bitstream/123456789/15051/1/005_Matrimonial%20Law%20in%20India%20%2871-98%29.pdf
[4] AIR 1999 SC 495
[5] AIR 2006 SC 2522
[6] Writ Petition (Civil) No. 604 of 2013
[7] AIR 2018 SC 4321, Writ Petition (Criminal) No. 76 of 2016, D.No. 14961/2016
[8] W. P. (MD) No. 4125 of 2019 and W.M.P (MD) No. 3220 of 2019
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