Centre on Same sex marriages in India

Centre on Same sex marriages in India

News Analysis   /   Centre on Same sex marriages in India

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Published on: March 13, 2023

Source: The Times of India

Context:

The Centre answering an affidavit, disapproved the decision of Supreme Court to legalise same sex marriages in India, as any change in human relationship should come from legislature, not the court.

About the Case:

  • The affidavit came in response to the Court’s decision to examine petitions to allow solemnisation of same-sex marriage under the ‘Special Marriage Act, 1954’.
  • The petitioners had said the 1954 Act should grant same-sex couples the same protection it allowed inter-caste and inter-faith couples who want to marry.
  • The Centre invoked the “accepted view” that a marriage between a biological man and woman is a “holy union, a sacrament and a sanskar” in India.
  • Thus same sex marriages can harm the Indian culture and values.
  • And any “deviation” from this “statutorily, religiously and socially” accepted norm in “human relationship” can only happen through the legislature and not the Supreme Court.

What were Centre’s arguments?

  1. The government argued that the Court had only decriminalised sexual intercourse between same-sex persons in its 2018 judgment and not legitimised this “conduct”. 
  2. The court, while decriminalising homosexuality, had never accepted same-sex marriage as part of the fundamental right to life and dignity under Article 21 of the Constitution.
  3. Registration of marriage of same-sex persons would also result in violation of existing personal as well as codified law provisions.

Supreme Court’s stand:

  • The Supreme Court of India decriminalized homosexuality by declaring Section 377 of the Indian Penal Code unconstitutional. 
  • The court unanimously ruled that an individual's autonomy, intimacy, and identity are protected fundamental rights. 
  • The LGBTQI Community in India faces legal and social difficulties. Sexual activity between the same genders is legal but they cannot marry or obtain a civil partnership.

Constitutional Provisions related to same-sex marriage:

Right to Equality (Article 14), 

Right against Discrimination (Article 19) and 

Right to Privacy (Article 21) are being affected. 

There is no specific law or act which gives validation or recognition to same-sex marriage and a proper criterion to bring grievances of the LGBTQI+ Community in the eyes of law.

Who can legislate on issues of Marriage in India?

The Parliament has right to design and frame the marriage laws in the country, which are governed by the personal laws and codified laws relatable to customs of various religious communities.

According to those rules, it recognises only the union of a man and a woman to be capable of legal sanction, and thereby claim legal and statutory rights and consequences. 

Provision under Special Marriage Act:

The Special Marriage Act (SMA), 1954 is an Indian law that provides a legal framework for the marriage of people belonging to different religions or castes.

It governs a civil marriage where the state sanctions the marriage rather than the religion.

The Indian system, where both civil and religious marriages are recognised, is similar to the laws in the UK’s Marriage Act of 1949.

Applicability:

The applicability of the Act extends to the people of all faiths, including Hindus, Muslims, Sikhs, Christians, Sikhs, Jains, and Buddhists, across India.

Recognition of Marriage:

The Act provides for the registration of marriages, which gives legal recognition to the marriage and provides a number of legal benefits and protections to the couple, such as inheritance rights, succession rights, and social security benefits.

It forbids polygamy and declares a marriage null and void if either party had a spouse living at the time of the marriage or if either of them is incapable of giving a valid consent to the marriage due to unsoundness of mind.

Written Notice:

Section 5 of the Act specifies that the parties must give written notice to the Marriage Officer of the District and that at least one of the parties must have lived in the district for at least 30 days immediately before the date of such notification.

Section 7 of the Act allows any person to object to the marriage before the expiration of 30 days from the date of the notice's publication.

Age Limit:

The minimum age to get married under the SMA is 21 years for males and 18 years for females.

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