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Indian Express

18-October-2023

1) Same-Sex Marriage in India

Context:

  • The Supreme Court has issued its eagerly anticipated decision, denying petitions to legalize same-sex unions and delving more into the Special Marriage Act of 1954’s provisions to thoroughly investigate the matter, which has convergence and linkage with homosexuality.

What is the Supreme Court’s (SC) Observation?

Against Constitutional Validity

  • A five-judge Constitution Bench of India’s highest court, presided over by the Chief Justice of India, voted 3:2 against allowing same-sex marriages to have constitutional validity.

Domain Of Parliament

  • According to the CJI, the court cannot amend the Special Marriage Act (SMA) 1954 to include same-sex partners within its purview or invalidate the SMA 1954 as it currently stands.
  • The highest court ruled that it is up to the state legislatures and Parliament to draft relevant laws.

What is the Special Marriage Act (SMA) 1954?

  • The Hindu Marriage Act of 1955, the Muslim Personal Law Application Act of 1937, or the Special Marriage Act of 1954 are the applicable personal laws in India where marriages can be registered.
  • The judiciary has a responsibility to ensure that both the husband and wife’s rights are upheld.
  • Regardless of the religion or creed practiced by either couple, civil marriage is permitted under the Special Marriage Act, 1954, for any Indian citizens living abroad.
  • When a person is married using this law, the Special Marriage Act instead of personal law governs the union.

Features:

  • Allows couples from two various religious backgrounds to join in the union of marriage.
  • Establishes the process for marriages if one or both the partners are not Hindus, Buddhists, Jains, or Sikhs, as well as for the solemnization and registration of those unions.
  • The fact that it is a secular Act contributes much to releasing people from the constraints of traditional marriage.

What is the legal status of same sex marriages in India?

  • The Indian Constitution does not expressly recognize the right to marry as a fundamental or constitutional right; instead, it is recognized as a statutory right.
  • The institution of marriage is governed by a number of statutory rules, but it was the decisions of the Supreme Court of India that led to its recognition as a fundamental right.
  • This declaration of law must be followed by all Indian courts, according to Article 141 of the Constitution.

Arguments in Favour of same sex marriage:

Equal Rights and Protection Under the Law:

  • All people have the legal right to be married and start a family, regardless of their sexual orientation.
  • The same legal rights and safeguards for same-sex couples as for opposite-sex couples should apply.
  • Same-sex marriage is not recognized, which amounts to discrimination that undermines the dignity of LBTQIA+ couples.

Making Families and Communities Stronger:

  • Marriage offers couples and their family social and financial benefits that also benefit others of the same sex.

Global Acceptance:

  • Many nations around the world permit same-sex unions, and it would be against universal values to deny people in a democratic country this right.
  • Same sex marriage is legal in 32 countries.

Arguments against same sex marriage:

  • Changing the traditional definition of marriage would go against the fundamental principles of religious and cultural beliefs.
  • Some people contend that procreation is the main goal of marriage and therefore same-sex couples are not allowed to have biological children.

Since same-sex marriage violates the natural order of things, they contend that it should not be permitted.

  • The legal ramifications of same-sex marriage, including issues with inheritance, taxes, and property rights, are a concern.

Some claim that changing all the laws and rules to allow same-sex marriage would be too complex.

  • As the LGBTQIA+ group is not often accepted in Indian society, adopting a kid by a gay couple might have severe effects on the child’s emotional and psychological health as well as stigma and prejudice in the community.

Way Forward:

  • A law against discrimination is required to enable the LGBTQ community to live and date freely, regardless of gender identity or sexual orientation.
  • The state and society should bear the burden of change.

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