Examine the scope of same-sex marriages under the Special Marriage Act.
Special Marriage Act, 1954
- It is an Act of the Parliament of India with provision for civil marriage for people of India and all Indian nationals in foreign countries, irrespective of religion or faith followed by either party.
- SMA provides a civil form of marriage for couples who cannot marry under their personal law.
- When a person solemnises marriage under this law, then the marriage is not governed by personal laws but by the Special Marriage Act.
Special Marriage Act Arguments of Petitioners
- The petition claimed that Special Marriage Act violates Fundamental Right of LGBTQ+ community by denying their right to marry. Under the Act, same-sex couples are denied basic and elementary rights of adopting and parenting children, enjoying property rights through inheritance and succession, and mental peace, which together have an effect on their emotion and health, thus violating their basic fundamental
- Non-recognition of same-sex marriage is an act of discrimination that strikes at the root of dignity and self-fulfillment of the LGBTQ+ couples. Equality is not achieved with the discrimination of homosexuality alone but must extend to all spheres of life, including the home, workplace and public places. Homosexuals have a fundamental right to live with dignity. They are entitled to be treated as human beings and should be allowed to imbibe the spirit of fraternity. Petitioners emphasized that the SMA “ought to apply to a marriage between any two persons, regardless of their gender identity and sexual orientation”.
Supreme Court’s Stand on Homosexuality
- Supreme Court in Navtej Singh Johar case, 2018, decriminalized
- It held that criminalization of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code is clearly unconstitutional.
- Discrimination on the basis of sexual orientation is violation of freedom of speech and expression.
- In NALSA vs. Union of India judgment (2014), the Court had said that non-binary individuals were protected under the Constitution and fundamental rights such as equality, non-discrimination, life, freedom and so on could not be restricted to those who were biologically male or female.
Government’s Stand on Same-Sex Marriages
- Solicitor General had said that as per the law, marriage was permissible between a “biological man” and “biological woman”.
- Acceptance of the institution of marriage between two individuals of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws.
Global Stand on Same-Sex Marriages
- Total of 32 countries around the world have legalized same-sex marriages.
- Netherlands was the first country in 2001 to legalize same-sex marriage by amending one line in its civil marriage law.
- In some countries, the decriminalization of homosexuality was not followed for years by the recognition of same-sex marriage, for instance, in the U.S. the former happened in 2003 while the latter in 2015.
Special Marriage Act Features
- It allows people from two different religious backgrounds to come together in the bond of marriage.
- Lays down the procedure for both solemnization and registration of marriage, where either of the husband or wife or both are not Hindus, Buddhists, Jains, or Sikhs.
- Being a secular Act, it plays a key role in liberating individuals from traditional requirements of marriage.
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