On Human Rights Day, a relook at the recent marriage equality judgment

Revisiting the monumental Universal Declaration of Human Rights (UDHR), which established the basic rights of human beings, is it true that Article 16 of the UDHR that provides for the right to marry is not followed in essence?

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DECEMBER 10 is observed as Human Rights Day to mark the adoption of the Universal Declaration of Human Rights (UDHR) on this day in 1948.

With a Preamble and 30 articles, this declaration is as important as our Indian Constitution.

In the words of Eleanor Roosevelt, the chairperson of the drafting committee of the UDHR, it is a declaration of the basic principles of human rights to serve as a common standard of achievement for all peoples of all nations.

With translation into more than 500 languages and dialects from Abkhaz to Zulu, and almost all Indian languages, it is mentioned as the most translated document in the Guinness World Records.

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The UDHR is widely recognised as having inspired the adoption of more than 70 human rights treaties. According to one study, at least 90 national constitutions drawn up since 1948 contain fundamental rights which are a reproduction of the provisions of the UDHR or at least inspired by it.

For the purpose of this article, the authors examine one such declaration related to marriage, and try to locate some of the present-day issues in Indian society.

Similar to Hansa Mehta of India, Begum Shaista Ikramullah of Pakistan was a champion of women's Rights.

Shaista Ikramullah advocated freedom, equality and choice in the UDHR and championed the inclusion of Article 16 to combat the evils of child marriage and forced marriage.

Article 16 reads: "1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."

Free and full consent of intending spouses as mentioned in Article 16(2) read with the words, "full age" mentioned Article 16(1) of the UDHR must inspire prohibition of child marriage, even if the personal law of any community allows it.

Same-sex marriage

While the second and third part of Article 16 is unexceptionable, the first part needs to be redefined or progressively interpreted to include persons of 'all genders' or sexual orientation.

It may be noted that the Supreme Court of India, in its recent judgment in Supriyo@Supriya Chakraborty and Another versus Union of India has failed to recognise same-sex couples to legally register their marriage.

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The Supreme Court held that there is no universal definition of marriage and it varies according to law, religion and culture. While this may look a plausible view, such a constrained reading by the courts would curtail the right to marriage of sexual minorities.

Anti-conversion laws 

Several states in India have passed laws restricting the free choice of individuals while marrying a person from a different faith.

These anti-conversion laws offend both the Constitutional provisions and universal human values enshrined under Article 16(1) of the UDHR.

Menace of dowry

One of the biggest problems prevailing in the Indian 'marriage market' is the existence of 'dowry', despite the law prohibiting the same.

According to the latest National Crime Record Bureau (NCRB) report, there were 13,479 reported cases and 6,450 dowry deaths in the last year alone.

The continuing practice of dowry is unpardonable and violative of basic human values.

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If parties to a marriage are equal as enshrined in Article 16(1) of the UDHR, the concept of dowry is inherently inhuman and all citizens must be encouraged to stay away from such practices.

Different shades of marriage and the need for pre-nuptial agreement

Yet another aspect of marriage remains largely unaddressed. Different shades of gender identity and gender fluidity are now universally recognised and there are different concepts of relationships akin to marriage.

It may range from traditional monogamy to live-in, monogamish, non-monogamous, open, polyamorous or polygamous relationships.

It may or may not have gained currency in the society but laws are required to protect every single individual and the present-day marriage laws are grossly inadequate to give legal protection to anything but a monogamous relationship.

Bringing changes in traditional societal frameworks is a gradual process, but in the meantime, legal recognition of pre-nuptial agreements and registration of relationships other than traditional marriages may be a way out.