The Supreme Court issued notice to the Centre Govt on a plea by two gay couples seeking recognition of same-sex marriage under the Special Marriage Act, 1954. The petition drew on earlier landmark rulings including one declaring privacy a fundamental right and another that decriminalized gay sex in 2018. In 2021 central Government had opposed same sex marriage in Delhi High Court stating that a marriage in India can be recognised only if its between a biological man and biological woman capable of producing children. In its argument then Central govt had also said that considerations of “societal morality” are relevant in considering the validity of a law and it is for the Legislature to enforce such societal morality and public acceptance based upon Indian ethos.
- The Citizenship Act, 1955,does not distinguish between heterosexual, same-sex or queer spouses. Therefore a person married to an Overseas Citizen of India, whose marriage is registered and subsisting for two years, should be declared eligible to apply as a spouse for an OCI card.
- The petition has also prayed for a direction in the nature of prohibition to the Consulate General of India, New York, restraining it from declaring a spouse of an OCI applying for an OCI card to be ineligible for the same merely, on the ground that they are in a same-sex marriage or queer (non-heterosexual) marriage.
- On the subject of the Foreign Marriage Act,the plea asks for a direction in the that to the extent the Foreign Marriage Act, 1969 excludes same-sex marriages or queer marriages, it be declared to be in violation of Articles 14, and 21 of the Constitution of India.
- A similar prayer is made in respect of the Special Marriage Act, 1954,stating that “to the extent that the Act excludes same-sex marriages or queer marriages, it violates Articles 14, 15, 19 and 21 of the Constitution of India”.
- The domain of marriages cannot be immune to reform and review.
- Reform of the Hindu Marriage Act, 1955 to bring self-respect marriages under its very umbrella, is seen as a strong move towards breaking caste-based practices within the institution of marriage.
- Self-respect marriages were legalised in Tamil Nadu (later, in Puducherry) through amendments to the Hindu Marriage Act, 1955.
- Self-respect marriages have done away with priests and religious symbols such as fire or saptapadi.
- Solemnisation of such marriages requires only an exchange of rings or garlands or tying of the mangalsutra.
- Similarly, understanding the needs of the LGBTQIA+ community, the law must expand the institution of marriage to include all gender and sexual identities.
- The acceptance of the institution of marriage between two individuals of the same gender is neither recognized nor accepted in any uncodified personal laws or any codified statutory laws”.
- The centre had also said that contrary to the popular view that homosexuality was legalized by the Supreme Court in the case of Navtej Singh Johar v. Union of India,the court had “only made a limited declaration to decriminalize a particular human behavior, which was a penal offence under S.377 IPC.“
- Observations in ‘Puttaswamy Judgment'(Privacy Case) and ‘Navtej Johar’ case (Section 377 was declared unconstitutional) do not confer a fundamental right to seek recognition of same-sex marriages.
The SMA is a law which allows solemnization of marriages without going through any religious customs or rituals.
- People from different castes or religions or states get married under SMA in which marriage is solemnized by way of registration.
- The prime purpose of the Act was to address Inter-religious marriages and to establish marriage as a secular institution bereft of all religious formalities, which required registration alone.
- At least 29 countries in the world have legalised same-sex marriage. It is time that India thinks beyond the binary and reviews its existing legal architecture in order to legalise marriages irrespective of gender identity and sexual orientation.
- The law is however a dynamic concept. Inevitably the nature of marriage would change if there is a change in society.