Same-sex marriages, Special Marriage Act, 2018 judgment in Navtej Singh Johar, Article 21 of the Constitution.
For Mains: GS Paper I (Social empowerment, Salient features of Indian Society) & GS Paper II (Issues relating to development and management of Social Sector)
About the Center on same-sex Marriage, Arguments Supporting same-sex Marriages, Arguments Opposing same-sex Marriages, Global Recognition of Same-Sex Marriage.
Recently, the Center at the Supreme Court disapproved of same-sex marriage in a recent ruling, citing the prevailing belief in India that a marriage between a biological man and woman is a sacred union, a religious sacrament, and a sanskar.
This statement came in response to the Court’s decision to examine petitions to allow the solemnization of same-sex marriage under the Special Marriage Act.
Explain the conditions related to the solemnization of special marriages as given in the Special Marriage Act of 1954. (150 words, 10 marks)
About the Center on same-sex Marriage
In our country, despite statutory recognition of the relationship of marriage between a biological man and a biological woman, marriage necessarily depends upon age-old customs, rituals, practices, cultural ethos, and societal values.
Any “deviation” from this “statutorily, religiously, and socially” accepted norm in “human relationships” can only happen through the legislature and not the Supreme Court.
Living together as partners and having a sexual relationship by same-sex individuals is not comparable with the Indian family unit concept of a husband, a wife, and children
The court, while decriminalizing homosexuality persons in its 2018 judgment in Navtej Singh Johar, had never accepted same-sex marriage as part of the fundamental right to life and dignity under Article 21 of the Constitution.
The Parliament has designed and framed the marriage laws in the country, to recognize only the union of a man and a woman to be capable of legal sanction. Any interference with the same would cause a violation of personal laws in the country and in accepted societal values.
Discrimination: It is argued that the non-recognition of same-sex marriage amounted to discrimination that struck at the root of the dignity and self-fulfillment of LBTQ+ couples.
Equality: The petitioners had said the Special Marriage Act of 1954 should grant same-sex couples the same protection it allowed inter-caste and inter-faith couples who want to marry.
Neither affection nor desire can be mandated by the law and hence, neither the choice of partner nor the gender of the partner nor the relationship between the two can be mandated by the law.
The government’s argument that the right to equality as embodied in Article 14 is not violated by the status quo because “same-sex relationships and heterosexual relationships are clearly distinct classes which cannot be treated identically" goes backward.
Arguments Opposing same-sex Marriages
In a survey conducted by the Pew Research Center across 34 countries between May 13 and October 2, 2019, only 37% of respondents from India said that homosexuality should be accepted by society.
It is argued that recognition of same-sex marriage would have an impact on a statute like the one for adoption.
Same-sex marriage opponents contend that marriage is a sacred union between a man and a woman and that legalizing same-sex unions is in opposition to cultural and religious values.
Additionally, they contend that same-sex unions compromise the institution of marriage and might have detrimental effects on society as a whole.
Global Recognition of Same-Sex Marriage
Currently 32 countries around the world have legalized same-sex marriages, some through legislation while others through judicial pronouncements.
These countries are Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States of America and Uruguay.
The Netherlands was the first country in 2000 to legalize same-sex marriage.
In Asia, Taiwan was the first country to recognize such unions in 2019.
The constitutional principles which have led to decriminalizing homosexuality must continuously engage in a rights discourse to ensure that same-sex relationships find true fulfillment in every facet of life.
The law must also take positive steps to achieve equal protection.
About the Special Marriage Act of 1954
The Special Marriage Act of 1954 provides a civil form of marriage for couples who cannot marry under their personal law.
It has a provision for the solemnization of special marriages. The provisions are as follows:neither party has a spouse living;
1[(b) neither party- 1. Is incapable of giving a valid consent to it in consequence of unsoundness of mind; 2. Though capable of giving a valid consent, has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; 3. Has been subject to recurrent attacks of insanity. (C) the male has completed the age of 21 years and the female the age of 18 years; 3[(d) The parties are not within the degrees of prohibited relationship. 4[(e) Where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends.]
It is crucial to understand that debates over same-sex unions are complicated and multifaceted, and there may be a range of viewpoints and opinions on the subject. Thus, it is crucial to see if same-sex marriage will be legalized in India or not.