India’s stand on same-sex marriage

India’s stand on same-sex marriage

Why in news :

• On March 13, a Bench led by Chief Justice of India D.Y. Chandrachud referred petitions to legally recognise same-sex marriages to a Constitution Bench of five judges of the Supreme Court.
• The Court has listed the case for final arguments on April 18.

What is the case?

• The Court has been hearing multiple petitioners’ requests for legal recognition of same-sex marriages under a special law.
• Initially, it took up the case of two partners who said the non-recognition of same-sex marriage amounted to discrimination that strikes at the root of “dignity and self-fulfilment” of LGBTQIA+ couples.
• The petitioners cited the Special Marriage Act, 1954, which provides a civil marriage for couples who cannot marry under their personal law, and appealed to the Court to extend the right to the LGBTQIA+ community, by making the “marriage between any two persons” gender neutral.

Which way are the Courts leaning?

• The Courts, leaning on Article 21 that guarantees the right to life and liberty, have time and again ruled in favour of inter­faith and inter-caste marriages, directing the police and other rights organisations to give them protection when they were threatened by parents or society, pointing out that “all adults have the right to marry a person of their choice.”
• In Navtej Singh Johar (2018), when homosexuality was decriminalised, the Court said, “Members of the LGBT[QIA+] community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law”.

What is the Centre’s stand?

• At depositions in courts and outside, the Centre has opposed same-sex marriage, and said judicial interference will cause “complete havoc with the delicate balance of personal laws”.
• While filing a counter-affidavit during this hearing, the government said that decriminalisation of Section 377 IPC does not give rise to a claim to seek recognition for same-sex marriage.

• After the K.S. Puttaswamy verdict (2017) which upheld the right to privacy and Navtej Singh Johar (2018) that decriminalised homosexuality, there was hope that same-sex marriages would be legalised, but that has not been the case, prompting many couples to move court.
• In its affidavit filed in the Supreme Court, the government said that the “notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex.
• It submitted that despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners cannot seek same-sex marriage to be treated as a fundamental right and be recognised under the laws of the country.
• The government submitted that statutory recognition of marriage as a union between a ‘man’ and a ‘woman’ is inextricably tied to acceptance of the heterogeneous institution of marriage and acceptance of Indian society based on its own cultural and sociological norms acknowledged by the competent legislature.

Special Marriage Act, 1954 :

• The Special Marriage Act, 1954 is an Act of the Parliament of India with provision for civil marriage (or “registered marriage”) for people of India and all Indian nationals in foreign countries, irrelevant of the religion or faith followed by either party.
• The Act originated from a piece of legislation proposed during the late 19th century. Marriages solemnized under Special Marriage Act are not governed by personal laws.

The Special Marriage Act, 1954 replaced the old Act III, 1872. The new enactment had three major objectives :

1. To provide a special form of marriage in certain cases,
2. To provide for registration of certain marriages and,
3. To provide for divorce.

Applicability :

1. Any person, irrespective of religion.
2. Hindus, Muslims, Buddhists, Sikhs, Christians, Parsis, or Jews can also perform marriage under the Special Marriage Act, 1954.
3. Inter-religion marriages are performed under this Act.
4. This Act is applicable to the entire territory of India and extends to intending spouses who are both Indian nationals living abroad.
5. Indian national living abroad.

Requirements :

1. The marriage performed under the Special Marriage Act, 1954 is a civil contract and accordingly, there need be no rites or ceremonial requirements.
2. The parties have to file a Notice of Intended Marriage in the specified form to the Marriage Registrar of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.
3. After the expiration of thirty days from the date on which notice of an intended marriage has been published, the marriage may be solemnised, unless it has been objected to by any person.
4. The marriage may be solemnised at the specified Marriage Office.
5. Marriage is not binding on the parties unless each party states “I, (A), take thee (B), to be my lawful wife (or husband),” in the presence of the Marriage Officer and three witnesses.

Conditions for marriage :

1. Each party involved should have no other subsisting valid marriage. In other words, the resulting marriage should be monogamous for both parties.
2. The groom must be at least 21 years old; the bride must be at least 18 years old.
3. The parties should be competent in regard to their mental capacity to the extent that they are able to give valid consent for the marriage.
4. The parties should not fall within the degree of prohibited relationship.

Syllabus : Prelims + Mains; GSII – Polity and Governance