Author Details
Sargun Kaur
B.A.Llb. 3rd year
Panjab University
Introduction
Marriages prevail in every culture and society, though the solemnization process may differ from country to country, society to society, and culture to culture. Now, the question arises; what is Marriage? Many scholars have given various definitions throughout the years, defining marriage in their unique sense. Some are given below:
According to Malinowski, “Marriage is a contract for the production and maintenance of children.”
Hortan and Hunt define Marriage as “the approved social pattern whereby two or more persons establish a family.”
Notes and Queries defined marriage as “a union between a man and a woman such that children born to the woman are recognized as legitimate offspring of both partners”
According to all these definitions, the purpose of marriage is to legitimize the birth of a child and secure the family lineage. It also fosters love, trust, and kinship between partners, forming emotional ties and a feeling of support.
Marriage across nations
People across nations and cultures solemnize their marriages in unique ways. Some marry in a church, some in temples or gurudwaras, or some simply register their marriage in court. Whichever way people may marry, they need to abide by the laws of their country and the necessary prerequisites that are mandatory. Marriage laws differ in every country. In a country like India, every religion has its laws to govern marriage. However, countries like South Korea, the USA, Germany, and France follow a uniform code for marriage. Implying, all citizens follow the same laws and rules without any personal laws as is the case in India. Not only Marriage but also divorce, custody, and other laws remain uniform in these countries.
Marriage laws in various countries
Marriage laws differ from country to country. There are various differences between laws in India and those of countries like the US, Germany, France and South Korea. All these countries follow their set of rules for marriage ceremonies. Let us discuss marriage in detail in these countries.
India- As aforementioned, India has various personal laws for each religion. Hindus follow Hindu Marriage Act, 1955; Muslims follow Muslim Marriage Act, 1954; Christians follow the Christian Marriage Act, 1872; for interreligious marriage, Special Marriage Act of 1954 was enacted.
According to Hindu Marriage Act, the conditions necessary for marriage are that either person should not have a living spouse at the time of marriage, they should be within the degree of prohibited relationship, they should not be spinda to each other, both the persons should be of legal age to marry, they should not be of unsound mind.
Concerning conditions for marriage, the Special Marriage Act states the same conditions. Muslim Marriage Act however has a different set of rules. Both persons must belong to or profess the Muslim faith; they should not be unfit to marry as per the laws of Islam, the parties must freely consent to marriage and the marriage shall be affected by the person appointed as Marriage Officer.
France- In France, the legal age of marriage is 18 years for both males and females. Both persons must give their free consent to the marriage, and neither person should have a living spouse at the time of marriage, if either individual were previously married then they must show their divorce certificate or death certificate of their spouse as the case may be. It is mandatory to hold a civil ceremony for the somatization of the marriage in the local town hall by an authorized official usually the mayor or any other authorized person.
Germany—The legal age for marriage in Germany is 18 for both genders. People aged 16 or 17 can get married with parental consent; however, the religious ceremony can only take place after they reach the age of majority.
In Germany marriages are governed under Bürgerliches Gesetzbuch (BGB)/German civil code, particularly sections 1297 to 1588.
The registration of marriage is mandatory although any sort of religious ceremony is not compulsory.
The United States- US being a big continent governs marriages according to state law. The state laws differ from state to state with the basic requirement being:
- Both partners should be adults i.e. 18 years of age.
- Both parties must give their free consent.
- Neither person should have a living spouse at the time of getting married.
The differences arise in the state laws regarding the age of the parties. Every state has a level of rigidity concerning age. In California, there is no minimum age for marriage but minor couples need parental and judicial consent to marry lawfully. In the state of Texas, the minimum age for marriage is 18 yet persons of age 16 and 17 can get married with the consent of their parents. In comparison to these states, New York has a minimum age set for marriage to 18 years with no exceptions whatsoever.
- Some states in America also recognize common-law marriages. Common law marriages are marriages wherein the couples do not go through any legal or religious ceremony but agree to be labelled married and live together. Some states that recognize common-law marriages are Texas, Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Utah, and the District of Columbia.
- Then there are civil marriages, the most widely known marriages, where people conduct legal or religious ceremonies to solemnize the marriage.
America has faced its share of challenges concerning marriage. In the landmark case of Loving v. Virginia (1967) the Supreme Court invalidated the laws prohibiting interracial marriages. A man of African American origin and a woman of Native American descent got married and settled in Virginia where interracial marriages were prohibited. As a result, they were sentenced to one year in prison. The case reached the Supreme Court, where it declared the laws prohibiting interracial marriages to be unconstitutional.
Same-Sex Marriage
The topic of same-sex marriages and LGBTQ rights is much debated all around the world. With some countries recognizing it and some criticizing the same. There have been many campaigns in various states in the world raising awareness about LGBTQ while there also have been situations where people gathered to talk about the evils of LGBTQ. The sole difference being the perspective of the people. Some view it as part of being human while others call it devil or going against the laws of nature.
America has seen various changes and upgrades relating to marriage laws. Loving v. Virginia was a landmark case removing restrictions on interracial marriages. This case laid a foundation for legalizing same-sex marriages in the US. After much debate, public uproar, and various LGBTQ movements, the American Supreme Court gave its historic judgment in the case of Obergefell v. Hodges on June 26, 2015; legalizing same-sex marriages. After a long fight against the laws prohibiting same-sex marriages in America; the Supreme Court in a 5:4 ruling legalized same-sex marriages in all 50 American States.
Additionally, in December of 2022, the Respect for Marriages Act was signed and passed which recognized same-sex marriages and interracial marriages. It paved the way for various couples in the country to freely get married without any fear or restrictions.
France has long fought a history of legalizing same-sex marriages with couples fighting to change the legislation in cases like Stéphane Chapin and Bertrand Charpentier v. France and Cestino and Hasslauer Case. Both are landmark cases wherein the couples sought to legalize their civil marriages and were shut down by the court ruling, stating that: “a marriage is a union between a man and a woman”.
The ruling of the case Loving v. Virginia had a huge impact on the legal perspective of same-sex marriages. Even though the case does not directly relate to the French judicial ruling, still it had a huge impact on the French law-making bodies. Consequently, in 2013 Marriage for All law was passed by the French government, after huge debates and protests by the citizens. The law legalized same-sex marriages, giving them the same rights as a heterosexual couple. They were given rights to adopt, social security rights, inheritance rights, and taxation. This made France the 13th country to legalize same-sex marriages.
The Marriage for All law was a huge step by the French government to recognize and validate homosexual couples seeking state approval.
Germany– Germany too like its fellow countries legalized same-sex marriages on October 1, 2017. The approval came with benefits like recognized civil marriages for homosexual couples, adoption rights, and other same rights as any heterosexual couple.
Before legalizing same-sex marriages, the Registered Life Partnerships Bill was passed which allowed homosexual couples to enter into civil partnerships and enjoy rights similar to the one given to heterosexual couples. This Act gave rights similar to a married couple however it did not recognize the union fully. The Act set the stage for future legislation.
In the German federal council, the Bundesrat Proposal for Same-Sex Marriage (2013) was introduced to legalize same-sex marriages. This proposal was later rejected by the Bundestag. Although, it did highlight the need of the hour and the growing support for LGBT+.
In a survey, it was revealed that around 80% of the German population supported LGBT+ rights and were in favour of legalizing homosexual marriages. The arguments that were raised in favour of same-sex marriages included equality rights. It was seen as violating the fundamental right to equality by not legalizing same-sex marriages. They upheld the conviction that people should be allowed to marry regardless of their sexual orientation.
There were also those who were against same-sex marriages. They believed that marriage should remain a union between a man and a woman. They believed this would maintain the integrity of the marriage institution, which remained rooted in historical and cultural traditions. There was also political opposition who argued that civil partnership laws already existed and that there currently was no need for formal laws.
Finally, after many delays and discussions in 2017, the German Bundestag (German Parliament) legalized same-sex marriages by a vote of 393 to 226. This vote came into effect on October 1, 2017.
India– As of January 2025, India has not legalized same-sex marriages. The Supreme Court ruling of 2023 says that the Special Marriage Act does not recognize same-sex marriages’ the act only recognizes inter-religion marriages. According to the Supreme Court. It has no power to legalize same-sex marriages and only parliament can legalize this by passing formal laws. This ruling further differentiated between the judicial and legislative powers of the Supreme Court and the Parliament.
India has in the past made some progress by decriminalizing section 377 IPC in Navtej Singh Johar v. Union of India. The ruling upheld the arguments of those who were in favour of legalizing LGBT+ rights. The advocates argued that homosexuality should be recognized in the country as part of Article 14 (Right to Equality) and Article 21 (Right to life and personal liberty). Some also talked of personal autonomy, favouring the fact that people should have the right to choose their partners and live a free life.
Those against the homosexual laws say that since the aim of marriage is procreation and homosexual couples cannot biologically procreate, it defeats the purpose of marriage. Additionally, it is a holy union between a man and a woman therefore accepting homosexuality will also go against the traditional cultural and religious beliefs. India being a country with such strong religious beliefs, has made it hard for homosexual couples to be accepted in the country.
Even though same-sex marriages are not legalized in India, homosexual couples are still recognized. They are given certain rights by the Supreme Court. In Deepika Singh vs. Central Administrative Tribunal (2022), the Supreme Court said that same-sex couples should be given some social security rights.
Also in the case of Manjinder Kaur and another v. State of Punjab, the Punjab and Haryana High Court held that same-sex couples should be given proper protection under Article 21 and they can approach the court in case they are being violated.
In August 2024, the Ministry of Finance declared that homosexual couples can open a joint account in the bank and name each other beneficiaries providing financial benefits.
Therefore, India may not have recognized same-sex marriages as of yet; it has come a long way from Section 377 to recognizing live-in homosexual couples. There is still a long way to go for society as a whole to accept homosexuality and LGBT+ rights if it wants to stand with countries like France, Germany, and the US.
Critical Analysis
In India where people have traditional beliefs and deeply rooted cultural norms it will take a while for people to accept homosexuality. As the younger generation has become more aware of concepts like feminism and LGBT+ rights, they continue to spread awareness and support through online media like magazines, e-papers, and social media platforms like Instagram, Facebook etcetera. In this age of the internet, people all around the world are aware of the current status of topics like LGBT+ rights in all countries. This continues to influence people in India as well to take a step towards modernization and support human rights. The author of this article is also of the view that homosexuality is a human right and no one should be judged according to their sexual orientation.
This article also aims to draw attention to the differences in legal ceremonies involving marriage. Every country has different legislation relating to marriage. Some countries have a uniform civil code for marriage while in a diverse country like India, there are personal laws. This is necessary because of the various religious groups that reside here. It would be unfair to implement UCC and expect every religion with its centuries-old traditions to be okay with it. Marriage is a fascinating subject in India with deep-rooted traditional beliefs and ideologies that relate to religion and culture.
Leave a Reply