Same-sex marriage’s legal recognition in India

Subject : polity

Section: Constitution

Concept :

The Supreme Court has set up a five-judge Constitution bench to hear the batch of petitions seeking legal recognition of same-sex marriages in India.
The bench set up by Chief Justice of India (CJI) DY Chandrachud also includes Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha.

What is the case?

The Court has been hearing multiple petitioners’ requests for legal recognition of same-sex marriages under a special law.
SC took up the case as petitioners claimed that the non-recognition of same-sex marriage amounted to discrimination that strikes at the root of dignity and self-fulfilment of LGBTQIA+ couples.
The petitioners cited the Special Marriage Act, 1954 and appealed to the Court to extend the right to the LGBTQIA+ community, by making the marriage between any two persons gender neutral.
Special Marriage Act, 1954 provides a civil marriage for couples who cannot marry under their personal law.

Why does the community want this right?

Even if LGBTQIA+ couples may live together, legally, they are on a slippery slope.
In Navtej Singh Johar case (2018) homosexuality was decriminalised.
They do not enjoy the rights married couples do.
For example, LGBTQIA+ couples cannot adopt children or have a child by surrogacy;
They do not have automatic rights to inheritance, maintenance and tax benefits;
After a partner passes away, they cannot avail of benefits like pension or compensation.
Most of all, since marriage is a social institution – that is created by and highly regulated by law – without this social sanction, same-sex couples struggle to make a life together.

What is the Centre’s stand?

At depositions in courts and outside, the Centre has opposed same-sex marriage.
It said that the judicial interference will cause complete havoc with the delicate balance of personal laws.
While filing a counter-affidavit during this hearing, the government said that decriminalisation of Section 377 IPC does not give rise to a claim to seek recognition for same-sex marriage.

Arguments forwarded by the Government

Notion of marriage :
- The notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex.
- This definition is socially, culturally and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation.
Marriage laws governed by the personal laws/codified laws :
- Parliament has designed and framed the marriage laws in the country to recognise only the union of a man and a woman to be capable of legal sanction, and thereby claim legal and statutory rights and consequences.
- Marriage laws in India are mostly governed by the personal laws/codified laws relatable to customs of various religious communities.
- Any interference with the same would cause a complete havoc with the delicate balance of personal laws and in accepted societal values.
Reasonable restriction :
- Even if such a right is claimed under Article 21, the right can be curtailed by competent legislature on permissible constitutional grounds including legitimate state interest.

Special Marriage Act, 1954

Marriages in India can be registered under the respective personal laws Hindu Marriage Act, 1955, Muslim Marriage Act, 1954, or under the Special Marriage Act, 1954.
The Special Marriage Act, 1954 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.
When a person solemnized marriage under this law, then the marriage is not governed by personal laws but by the Special Marriage Act.