MATRIMONIAL LAWS ARE WELFARE LEGISLATIONS RIGHT TO MARRY IS A FUNDAMENTAL RIGHT
Law is based on the social constructs governing society, and the
institution of marriage is universally accepted as an essential part of
preserving the family structure and protecting healthy nurturing environments.
Marriage holds such an essential place because human beings biologically
possess a need for companionship, and also because the home created by two
individuals through the union of marriage is considered a stable and healthy
environment for raising children.
THE RIGHT TO MARRIAGE IS A FUNDAMENTAL RIGHT
All across the globe, the right to marriage is considered an
essential right of every individual. For instance, in the United States of
America, their Supreme Court has declared the rights of marriage, procreation,
contraception, family relationships, child-rearing and education to be
indefeasible fragments of the substantive right to privacy. [See Meyer v.
Nebraska, 262 US 390 (1923); Pierce v. Society of Sisters, 268 US 510 (1925);
Prince v. Massachusetts, 321 US 158 (1944)].
An English Court in Mundell v. Names [(2019) 4 WLR 139] held:
“The right to form a marriage is a fundamental right and has
been so for centuries. If one was to draw up a hierarchy of human rights, one
would have the right to enter into a marriage and found a family as being near
the top of the list because the right to form a marriage has been in play in
our society since the very dawn of time. So important is it that it has made
its way into the European Convention for the Protection of Human Rights and
Fundamental Freedoms, article 12 of which states: ‘Men and women of
marriageable age have the right to marry and to found a family according to
national laws governing the exercise of this right’.”
The courts of India have considered the right to marriage as a
fundamental right under the broad definition of right to life under Article 21
of the Constitution of India. In a landmark decision, the Supreme Court of
India has held that the India is a free, democratic country and any person of
majority can enter into a valid marriage with any person of their choice, and
should not face any harassment from others for their decision. [Lata Singh v.
State of U.P., (2006) 5 SCC 475].
Courts of India, as well as across the world, recognize and protect the
sanctity of all valid marriages. A subsequent marriage, so long as legally
valid, will be treated at par with the first marriage in the eyes of law and
given all protections.
PROTECTION OF RIGHTS IN A SECOND MARRIAGE
It would be a misconception to think that a court of law will
view any individual’s rights differently simply because they are marrying a
second time. A person does not lose their rights by simply entering into a
second marriage. Some common rights people that one may worry will get affected
upon engaging in a second marriage are discussed below:
Rights: The rights over property that are in question are usually
already addressed in divorce settlements and accordingly sorted with the
consent of both parties. An overview of the rights of a person with respect to
the kinds of property they own is as follows:
Property: The rights of a person in their ancestral property (from their
own family, not that of the person they were previously married to) are
completely unaffected by a second marriage. In a case, the Supreme Court had
even held that a widower would have rights in her deceased husband’s ancestral
property even after she remarried, on account of being the mother of the
deceased husband’s child [See Kasturi Devi v. Deputy Director of Consolidation,
1977 (2) SCR 25].
Property: Unless their was a pre-defined contract allocating percentages
of shares in properties acquired together by the couple in the first marriage,
a person is still entitled to an equal share in any joint property acquired
during the previous marriage, even if they remarry.
Gifts: Unless a
gift of any nature (movable or immovable property) was given to a person with
condition that it will only be valid for the subsistence of the marriage, that
gift will continue to be the property of that person even after they remarry.
Rights of the Child: A common concern is whether a child would lose his rights over
his ancestral property from the other parent, if the parent in whose custody
the child is, remarries. This is not the case. A child’s right over his/her own
property is protected, regardless of whether the parents of the child remarry.
Custody: The deciding principle in all child custody cases is always
“best interest of the child” [R. D. Upadhyay v. State of Andhra Pradesh, (2007)
15 SCC 337]. Usually, the mother is considered most ideal for nurturing and
holding custody of the child, particularly young children. Simply remarrying
will not make a parent less likely to obtain or maintain custody. In fact, some
courts have held that a stable set-up with both caregivers is an ideal home for
a child to grow up in. Thus, starting a new family is not necessarily seen by
courts in a negative light. The Supreme Court has expressly held that
remarriage of the mother is no reason to deny her custody of the child, and the
court must simply act in the best interest of the child [Lekha v. P. Anil
Kumar, (2006) 13 SCC 555].
So long as a parent is able to show that they are providing the
best possible environment for a child, the custody case will not be impacted.
Maintenance: If a
spouse has been obtaining maintenance from their partner from a previous
marriage, the right to maintenance of an individual ends upon entering a second
marriage. However, if the spouse from the previous marriage is providing
maintenance for both the former partner, and their child, the obligation of the
biological parent to pay maintenance for their child will not end simply
because the parent who has custody of the child has remarried.
of Marriage: The law preserves and protects any subsequent marriage with
the same laws and standards as the first one, and there will be no difference
in terms of the validity and sanctity of a subsequent marriage.
one’s individual rights do not end upon entering into a second marriage. Rights
emerging out of a previous marriage may be altered to some extent.
examination of the matrimonial laws, and the sanctity held by the institution
of marriage, would show that these are welfare legislations that permit people
to take second chances in an attempt to lead more fulfilling lives. Being a
fundamental right, remarriage is respected and protected by the law.
Mangal Sharma and Sukanya Singh