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INCLUSION OF SAME-SEX MARRIAGE UNDER THE SPECIAL MARRIAGE ACT, 1954

INTRODUCTION

Marriage, under Hindu Law, is regarded as the religious sacrament performed by a male and a female while under Muslim law, it is regarded as a civil contract. The common purpose of marriage under all personal laws is to provide various matrimonial rights such as the procreation of children, succession rights, alimony, etc. Same-sex marriage is the bond between homosexual couples wherein both people belong to the same gender.

Generally, same-sex marriage was not accepted in society as it does not fulfil the very purpose of marriage. However, for the last couple of decades, the concept of homosexuality became a burning subject in society as homosexuals began to raise their voices and approached the Supreme Court and various High Courts in the country to get their Fundamental Rights.

SAME-SEX MARRIAGE IN INDIA

  • Government’s Stand on Same-sex Marriage

The Central government has categorically opposed same-sex marriage on the ground[1] that:-

  • The recognition of same-sex marriage in India would lead to absolute havoc with the systematic balance of marriage laws of respective religions in the country.[2]
  • According to the central government[3], the landmark judgment by SC in Navtej Singh Johar v. Union of India[4] lead to the decriminalization of private and consensual same-sex activities only. It does not relate to public and consensual same-sex activities.
  • Societal Point of view

As per a survey conducted by Ipsos in 2021, only 44% of Indians are in favor of same-sex marriage[5]. However, in another survey conducted by Pew, the rate of accepting homosexuality in India increased by 22% between 2013 and 2019[6]. This indicates that the people in India are gradually accepting the status and rights of homosexual people in society by keeping aside their orthodox views.

  • Judicial Perspective

Recently, two writ petitions were filed by two gay couples for recognizing same-sex marriage under SMA, 1954. One was filed by Supriyo Chakraborty and Abhay Day[7], married in December 2021, whereby they stated that the Special Marriage Act is ultra-vires of the Indian Constitution as it discriminates between same-sex couples and the opposite sex.

In May 2022, a writ petition in the nature of habeas corpus was filed by Adhila Nasrin in Kerala HC whereby she claimed that she was assaulted by her partner’s parents for living together. The court put the primacy of living together with both couples over their family dissatisfaction[8].

In Navtej Singh Johar v. Union of India[9], the SC partially decriminalized homosexuality as was laid down under section 377[10] of IPC,1860. The SC held “the sexual orientation of a person is part of one’s privacy. The right to privacy is a broad concept enshrined under Article 21[11] which preserves the sanctity of the private sphere of an individual”. Similarly, Justice K.S Puttaswamy v Union of India[12], held “family, marriage, procreation and sexual orientation are integral to the dignity of an individual”.

  • Legislation In India

Personal laws: Marriages in India are solemnized as per the personal laws of various religions such as Hindu, Muslim, Christian, and Parsi which deal with marriage, judicial separation, and divorce of an individual belonging to that particular community.

Special Marriage Act, 1954: The Special Marriage Act,1954 applies to all citizens irrespective of their religion or inter-religious citizens or citizens with no religion. Certain conditions for the solemnization of marriage are provided under section 4[13] of the Act wherein clause (c) categorically states that the male and female must have completed 21 and 18 years of age respectively. This provision specifically uses both gender and hence, excludes same-sex marriage. Further, Another provision states that “a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since.”[14]

  • Global perspective

Currently, there are 32 countries across the globe that have recognized same-sex marriage out of which 22 countries have legalized it through legislation while 10 countries recognized it through judicial pronouncements[15]. Recently, the US senate recognized same-sex marriage through legislation whereby it amended the meaning of marriage from a bond between a man and a woman to a bond between two individuals[16].

ANALYSIS

As far as same-sex marriage is concerned, there is a diverse opinion among people in the country. On one hand, some favor the recognition of same-sex marriage on constitutionality grounds while others oppose it considering it to be a social taboo. In my opinion, subjects like same-sex marriage should not be debatable subject as we are living in an evolving society and it must be considered in parlance with other marriages on the following grounds:-

  • Constitutional Equality: Non-recognition of same-sex marriage is a violation of the Indian Constitution. Article 14[17] provides equality before the law and equal protection of the law and therefore, the exclusion of heterosexual groups from marriage rights is its violation. Article 15(1)[18] prohibits discrimination on certain grounds. Article 19[19] provides freedom of speech and expression of one’s own choice. Article 21[20] includes the right to choose their partner or to marry and non-recognition of same-sex marriage is its violation.
  • Judicial acceptance: The recognition of LGBTQ+ rights by the Supreme Court and various other High Courts in India can be seen through their various judicial pronouncements at different points in time such as the decriminalization of homosexuality[21], the right to choose a partner[22], etc.
  • Evolution of the Society: There was a time when practices like divorce, surrogacy, and alimony were not recognized in Indian society. But, such practices are accepted gradually by the Indian people as they were essential for the growth of the nation. Similarly, same-sex marriage is the basic right of certain groups which cannot be denied in an evolving society like India.
  • Scientific approach: Several scientific pieces of research have found that homosexual and heterosexual couples have similar traits like emotional attachments, intimacy, love, and loyalty. It is also found that denying such rights to homosexuals may lead to severe mental disorders for them[23].

WAY FORWARD

  • Amendment to Special Marriage Act,1954: Certain provisions of the Special Marriage Act, 1954 must be amended to make it gender-neutral. Section 4(c)[24] must be replaced with “Parties in marriage must be 21 years of age in case of male and 18 years of age in case of female”. Under Section 15(a)[25], “as partners” must be added after “as husband and wife”. The entire SMA, 1954 must be made gender-neutral through amendments and judicial interpretation.
  • Comprehensive legislation for the protection of the LGBTQ community: The central government must bring a complete Act that protects all the rights of the LGBTQ community as given to other people.
  • Recognition by the society and family itself: The parents of homosexuals must accept same-sex relationships and marriage as heterosexual relationships and marriage. The emotions of homosexual couples must be considered in parlance with heterosexual couples.

CONCLUSION

Currently, Homosexuals in India are considered a separate community that cannot get fit into society by the majority class in the country. The Indian Judiciary has recognized same-sex marriage either directly or indirectly through several judicial pronouncements and still trying to strengthen it through several pending cases. However, the legislature has not taken yet solid steps in protecting the rights of the LGBTQ community. The role of legislature plays a crucial role in solving the issues like homosexuality and therefore, several legislations for the protection of homosexuals and certain amendments in personal laws is the need of the hour. Moreover, society must understand that homosexuals are similar to other people in terms of their traits and hence, their rights like marriage/relationships must be considered normal.

Author(s) Name: Abhay Gairola (DAVV, Indore)

References:

[1] ‘Same sex marriage will cause havoc says Govt.’ (The Hindu) <http://www.thehindu.com/news/national/same-sex-marriage-will-cause-havoc-says-govt%3E>  08 December 2022

[2] Ibid

[3] Ibid

[4] Navtej Singh Johar v Union of India (2018) AIR SC 4321

[5] ‘Significant support rights LGTBQ among Urban Indians IPSOS LGTBQ Pride 2021 Global Survey’ (IPSOS) <https://www.ipsos.com/significant-support-rights-lgbtq-among-urban-indians-ipsos-lgbtq-pride-2021-global-survey> accessed on 08 December 2022

[6]‘Global Divide on Homosexuality persists’ (Pew Research) <https://www.pewresearch.org/global-divide-on-homosexuality-persists> accessed on 08 December, 2022

[7] Supriyo@Supriya Chakraborty & Anr. v Union of India (2022) Writ Petition (Civil) No. 1011/2022

[8] Adhila v Commissioner of Police & Ors. (2022) Writ Petition (Criminal) No. 476/2022

[9]Navtej Singh Johar v Union of India (2018) AIR SC 4321

[10] Indian Penal Code 1860, s 377

[11] Constitution of India 1950, art 14

[12] Justice K.S Puttaswamy v Union of India (2017) AIR SC 4161

[13] Special Marriage Act 1954, s 4

[14] Special Marriage Act 1954, s 15(a)

[15] ‘Marriage Equality around the World’ (HRC) <https://www.hrc.org/resources/marriage-equality-around-the-world>  accessed 8 December 2022

[16] ‘US Senate passes Bill protecting Same-Sex Marriage’ (The Guardian) <https://www.theguardian.com/us-news/2022/nov/29/us-same-sex-marriage-law-senate-passes> accessed 08 December 2022

[17] Constitution of India 1950, art 14

[18] Constitution of India 1950, art 15(1)

[19] Constitution of India 1950, art 19

[20] Constitution of India 1950, art 21

[21] Indian Penal Code 1860, s 377

[22] Constitution of India  1950, art 21

[23] Robert L. Kinney, III, ‘Homosexuality and scientific evidence: On suspect anecdotes, antiquated data, and broad            generalisations’ (2015) 82(4) The Linacre Quarterly 1 < <https://journals.sagepub.com/doi/full/10.1179/2050854915Y.0000000002> accessed 08 December 2022

[24] Special Marriage Act 1954, 4(c)

[25] Special Marriage Act 1954, 15(a)