Daily News Analysis


stylish lining

Why in the News?

The five-judge Constitution Bench of the Supreme court, which decided on the same-sex marriage case, in a 3:2 majority, held that non-heterosexual couples cannot claim an unqualified right to marry.

Why is there a demand for legalising same-sex marriages?

  1. Navtej Singh Johar vs. Union of India, 2018- decriminalised homosexuality by striking off Section 377 IPC
  2. Puttaswamy and Anr. vs. Union of India’ (2017), upheld the fundamental right to privacy.
  3. Right to marry for non-heterosexual couples is implicit in
    1. Article 14 (Equality)
    2. Article 15 (Non-Discrimination)
    3. Article 16 (Equality of Opportunity in Public Employment)
    4. Article 19 (Freedom of Speech)
    5. Article 21 (Right to Life)
  4. Special Marriage Act, 1954:
  1. Section 4 of SMA, refers to a marriage in gender-neutral terms, between ‘any two persons.’
  2. ‘Atypical marriages’, recognised by the Mental Health Act 2017 has to be included within the SMA.
  1. Demand for equal rights, not just of marriage, but of horizontal reservation and protection from natal families. 
  2. Though laws relating to marriage have a religious genesis, in India it is a mixture of common law and religion and currently it has become a status conferred by law.
  3. State cannot not deny marriage equality on grounds of “impracticality” as the discriminatory laws were created by it.
  4. Quoting that queer persons’ right to marry has already been recognised by the Transgender Persons Protection Act, 2019, flowing from the 2014 NALSA judgement, all queer identities are part of this term.
    1. NALSA vs Union of India case (2014) gave legal recognition to persons outside the purview of the male-female gender binary, falling under the category of “third gender”. 
  5. Exclusion of heterosexual couples from the institution of marriage will provide legitimate grounds to differentiate between the commitments of heterosexual and non-heterosexual couples.

Arguments against legalising same-sex marriages:

  1. The Centre held that marriage between a biological man and woman is a “holy union, a sacrament and sanskar (culture)” in India. 
  2. More than 20 retired judges said that legalisation of same-sex marriage will strike at the very root of the “family system”, the fundamental building block of society.
  3. Same-sex marriages is a sensitive issue concerning the society at large and has to be debated in the Parliament and State Legislature as well.
  4. 160 laws would be impacted in the process of bringing marriage equality and hence, Parliament is the only forum to make such laws.
  5. Under the Special Marriage Act 1954, the court cannot give rights to non-heterosexual couples that heterosexual couples don’t have.
    1. For instance, under the Act, a wife could seek divorce on the ground that her husband has been guilty of rape, sodomy, or bestiality. In the case of gay marriage, who would get this right becomes a question.
  6. The State is justified in treating heterosexuals and homosexuals differently as the welfare of children is paramount as concepts of mother and motherhood are adhere to children naturally born to heterosexual persons.

How Special Marriage Act 1954 poses some hurdles for legalizing same-sex marriage in India?

  • The Act legalizes civil marriages for heterosexual couples from different religions or castes. However, it defines marriage as between a "male and a female". This effectively bars same-sex unions.
  • Amending the Act would require parliamentary approval. Given the current government's stand against same-sex marriage, passing an amendment to recognize same-sex marriage appears unlikely. 
  • The Act also requires extensive public notice of an intended civil marriage. This is meant to allow for objections. Requiring same-sex couples to disclose their intent could lead to social stigma or harassment.
  • The Act delegates power to state governments to make rules on marriages. More conservative states could obstruct same-sex civil unions even if the Act is amended at the federal level.
  • Anti-same-sex marriage advocates argue the Act protects religious customs and personal laws that define marriage as heterosexual. They oppose amending it to suit a "western concept" of marriage.
  • However, proponents argue the Act was meant to provide marriage rights beyond religious customs. And the definition of marriage cannot remain static forever.
  • Some experts suggest a way around is to legally recognize same-sex relationships through a civil unions or domestic partnership act while keeping the marriage act limited to heterosexual couples. 

In summary, the current language and provisions of the Special Marriage Act pose procedural and social hurdles for legalizing same-sex marriages. Overcoming the legislative and political challenges to amend the Act will likely be difficult. Advocates may need to explore alternative legal recognition for same-sex couples.

Obstacles the laws governing marriage and recognition of foreign marriages pose for same-sex marriage in India:

Some key hurdles in this regard are:

  • The Indian legal system does not recognize same-sex marriages performed abroad. Under the Foreign Marriage Act, 1969, India recognizes foreign marriages as valid only if they were legally performed as per the law of the country where the marriage was solemnized. Since same-sex marriage is not legally recognized in India, same-sex marriages from abroad are also not valid under Indian law.
  • The Special Marriage Act, which governs civil marriages in India, does not recognize same-sex marriages as it defines marriage as between a biological man and woman. The Foreign Marriage Act relies on the definition of marriage as per Indian domestic law.
  • Section 377 of the Indian Penal Code had criminalized homosexual relations until 2018. This prohibited same-sex couples from legally solemnizing marriage even in foreign countries where it is legal. Though decriminalized now, same-sex marriages are still not legally valid.
  • Legalization of same-sex marriage would require amendment in domestic Indian laws on marriage. The foreign marriage laws cannot independently recognize same-sex marriages without broader domestic legal changes.
  • Diplomatic challenges can also emerge if marriage laws are not consistent between India and countries that recognize same-sex marriages. Issues of certificates, visas for spouses, etc. may arise.

In summary, the interplay between Indian domestic laws that define marriage as heterosexual and the laws governing recognition of foreign marriages creates legal hurdles for same-sex couples married abroad seeking recognition in India. Progress on the domestic front regarding marriage laws and LGBTQ rights would be needed first.