SAME-SEX MARRIAGE AND ITS LEGAL CONTEXT IN INDIA
Same-sex marriage, involving the union of individuals of the same gender, is a topic of significant legal, social, and cultural importance globally. In India, recent judgments by the Supreme Court (SC) have highlighted the complexities of this issue.
What is Same-Sex Marriage?
- Same-sex marriage refers to the union between two individuals of the same gender, such as two men or two women.
- Legal Status in India: Same-sex marriages are not legally recognized in India, and there are no provisions for civil unions of same-sex couples.
Supreme Court’s Judgment (2023)
Ruling Overview: The SC ruled that the SMA, 1954, does not include same-sex couples. It emphasized that the matter falls under the legislative domain of Parliament and state legislatures.
Key Observations:
- No fundamental right to marry exists under the Indian Constitution.
- However, same-sex couples have equal rights under Article 21 (Right to Life) for benefits similar to live-in partnerships.
Global Recognition of Same-Sex Marriage
- Countries Recognizing Same-Sex Marriage: Over 30 nations, including the United States, Canada, France, and Australia, have legalized same-sex marriages.
- Pioneering Nations:
- Netherlands (2001): The first country to legalize same-sex marriage by amending its civil marriage law.
- Taiwan: The first Asian country to legalize same-sex marriage.
- Prohibitive Nations: Countries like Iran, Afghanistan, Saudi Arabia, and Brunei impose severe penalties, including the death penalty, for same-sex relationships.
The Special Marriage Act (SMA), 1954
Purpose: Provides a framework for civil marriages irrespective of religion or caste.
Applicability:
- Covers all faiths, including Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists.
- Foreigners can register their marriage in India under SMA if specific residency conditions are met.
Key Provisions:
- Marriage Recognition: Grants legal status to marriages with associated rights like inheritance and social security benefits.
- Notice Requirement: Parties must give a 30-day prior notice to the district Marriage Officer.
- Objections: Section 7 allows objections to the marriage during the notice period.
- Age Limit: Minimum age is 21 years for males and 18 years for females.
Arguments in Favor of Same-Sex Marriage
Equality and Human Rights:
- Denying marriage rights violates principles of equality and dignity under international human rights conventions.
- In India, Article 21 guarantees the Right to Life, supporting arguments for equality in marriage rights.
Cohabitation as a Fundamental Right:
- SC judgments in cases like Lata Singh v. State of UP (2006) and Shakti Vahini v. Union of India (2018) recognize cohabitation as a fundamental right.
Legal and Economic Benefits:
- Provides access to inheritance rights, tax benefits, and social security.
Global Alignment:
- Reflects international standards of equality and dignity for all individuals, irrespective of sexual orientation.
Arguments Against Same-Sex Marriage
- Cultural and Religious Beliefs: Many religious groups believe marriage is between a man and a woman, rooted in traditional values.
- Against Natural Order: Critics argue that marriage’s primary purpose is procreation, which same-sex unions cannot achieve.
- Legal Complexities: Challenges in adjusting inheritance, adoption, and property laws.
- Adoption Concerns: Fear of societal stigma and potential emotional challenges for children raised by same-sex couples in a conservative society.
LGBTQIA+ Rights in India
Key Milestones:
- 2014: SC recognized transgender individuals as a “third gender” (National Legal Services Authority v. Union of India).
- 2018: Decriminalization of same-sex relationships by striking down Section 377 (Navtej Singh Johar v. Union of India).
- 2019: Transgender Persons (Protection of Rights) Act passed to prohibit discrimination.
- 2022: SC expanded the definition of family to include same-sex couples.
- 2023: SC rejected petitions to legalize same-sex marriages.
Terminology:
- LGBTQIA+ stands for Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual, with “+” representing evolving identities.
Way Forward
- Legal Reforms: Amend SMA to provide equal rights to same-sex couples. Introduce contractual agreements to ensure similar rights for homosexual individuals.
- Engagement: Facilitate dialogue with religious and cultural leaders to bridge traditional beliefs and modern perspectives.
- Judicial Initiatives: LGBTQIA+ activists can challenge discriminatory laws, potentially paving the way for broader legal recognition.
- Collaborative Efforts: The government, civil society, and the LGBTQIA+ community must work together to build an inclusive society ensuring equal rights for all.