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Legalising Same-Sex Marriage

Context:

Recently, The Supreme Court transferred to itself petitions pending in various High Courts seeking legal recognition of same-sex marriage.

Relevance:

GS II: Polity and Governance

Dimensions of the Article:

  1. What do the petitions say?
  2. What is the government’s stand?
  3. What about other countries?
  4. About Special Marriage Act, 1954

What do the petitions say?

  • The SMA provides a civil form of marriage for couples who cannot marry under their personal law, and both the recent pleas seek to recognise same-sex marriage in relation to this Act and not personal laws.
  • The first petition was filed by two men, Supriyo Chakraborty and Abhay Dang, who have been a couple for 10 years.
  • Their petition argued that the SMA was “ultra vires” the Constitution “to the extent it discriminates between same-sex couples and opposite-sex couples”.
  • It stated that the Act denied same-sex couples both “legal rights as well as the social recognition and status” that came from marriage.

What is the government’s stand?

  • Late last year, while responding to the pleas seeking recognition of same-sex marriages in the Delhi High Court, Solicitor General for the Centre had said that as per the law, marriage was permissible between a “biological man” and “biological woman”.
  • In its affidavit opposing the pleas, the Centre had said: “The 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”.
  • It also argued against the urgency of the pleas by saying nobody was “dying” in the absence of a marriage certificate.

What about other countries?

  • A total of 32 countries around the world have legalised same-sex marriages, some through legislation while others through judicial pronouncements.
  • Many countries first recognised same-sex civil unions as the escalatory step to recognise homosexual marriage.
  • Civil unions or partnerships are similar arrangements as marriages which provide legal recognition of unmarried couples of the same or opposite sex in order to grant them some of the rights that come with marriage — such as inheritance, medical benefits, employee benefits to spouses, managing joint taxes and finances, and in some cases even adoption.
  • The Netherlands was the first country in 2001 to legalise same-sex marriage by amending one line in its civil marriage law.
  • In some countries, the decriminalisation 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.

About Special Marriage Act, 1954

  • The Special Marriage Act, 1954 is an Act of the Parliament of India enacted to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party.
  • Marriages solemnized under Special Marriage Act are not governed by personal laws.

The Act has 3 major objectives:

  • to provide a special form of marriage in certain cases,
  • to provide for registration of certain marriages and,
  • to provide for divorce.
Applicability of the Act
  • Any person, irrespective of religion.
  • Hindus, Muslims, Buddhists, Jains, Sikhs, Christians, Parsis, or Jews can also perform marriage under the Special Marriage Act, 1954.
  • Inter-religion marriages are performed under this Act.
  • This Act is applicable to the entire territory of India and extends to intending spouses who are both Indian nationals living abroad.
  • Indian national living abroad.
Succession to the property
  • Succession to the property of person married under this Act or customary marriage registered under this Act and that of their children, are governed by Indian Succession Act.
  • However, if the parties to the marriage are Hindu, Buddhist, Sikh or Jain religion, the succession to their property will be governed by Hindu succession Act.
  • The Hindu Marriage Act is pertinent to Hindus, though the Special Marriage Act is appropriate to all residents of India regardless of their religion applicable at Court marriage.

-Source: The Hindu


February 2023
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