Supreme Court seeks centre’s response on including same-sex marriage under Special Marriage Act

The Supreme Court on November 25 sought centre’s response to pleas to allow solemnisation of same ­sex marriage under the Special Marriage Act.

• The Special Marriage Act of 1954 provides a civil form of marriage for couples who cannot marry under their personal law.

• The Supreme Court Bench agreed to hear partners Supriya Chakraborty (Supriyo) and Abhay Dang, who said the non­recognition of same­sex marriage amounted to discrimination that struck at the root of dignity and self ­fulfillment of LGBTQ+ couples.

Arguments in support of same sex marriage

• This was a sequel to the 2018 Constitution Bench judgment in the Navtej Johar case in which homosexuality was decriminalised.

• Supreme Court has upheld privacy as a constitutional right under Article 21 in the Puttaswamy case.

• The 1954 Act should grant same ­sex couples the same protection it allowed inter caste and inter­faith couples who want to marry.

• It does not touch on the personal laws but only sought to make the 1954 Act gender­ neutral.

• The Act only says marriage should be between ‘two persons’. It does not say it is a union of A and B.

• The 1954 Act is ultra vires the Constitution to the extent it discriminates between same ­sex couples and opposite sex couples, denying same ­sex couples both legal rights as well as the social recognition and status that flows from marriage.

• The Special Marriage Act of 1954 ought to apply to a marriage between any two persons, regardless of their gender identity and sexual orientation.

Arguments against same sex marriage

• The same-sex marriage is against Indian culture and Indic religions, and was invalid under Indian laws.

• In India, marriage is considered a sacred ‘sanskar’, whereas in other countries, marriage is a contract.

• Marriage in India is not just a union of two individuals but an institution between biological man and woman.

• Judicial interference will cause “complete havoc with the delicate balance of personal laws.

About 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.

• A marriage under the Special Marriage Act, 1954 allows people from two different religious and caste backgrounds to come together in the bond of marriage.

• The Special Marriage Act, 1954 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.

• According to this Act, the couples have to serve a notice with the relevant documents to the Marriage Officer 30 days before the intended date of the marriage.