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Why in news?

A petition recently filed in the Kerala High Court by a male same-sex couple challenges the constitutionality of the Special Marriage Act on the ground that it discriminates against same-sex couples who want to formalize their relationship through marriage

Special marriage act of 1954

Special Marriage Act of 1954 allows and facilitates the registration of inter-religious marriages. In that sense, it is a legislative tool for social change, an attempt to remove a social barrier to the exercise of individual autonomy.

Landmark judgement 

In Navtej Johar v. union of India case, Supreme court  not only did the Court hold Section 377 of the IPC to be unconstitutional, it explicitly recognised the rights of the LGBTQ+ community to express their individuality, sexual identity and love on par with heterosexuals, as fundamental to Articles 14 (right to equality), 19 (right to freedom), and 21 (right to life) of the Constitution

Constitutional morality vs customs

  • It’s a unique opportunity in front of Kerala high court for a potential first step towards making marriage, as an institution, as a legal concept, more accessible and egalitarian, less arbitrary and exclusionary.
  • It gives the High Court the chance to prioritize the fundamental and human rights of the petitioners over the abstract heteronormative tendency of the majority to deny legitimacy to relationships that challenge oppressive social structures and established hierarchies
December 2023