According to the special marriage act 1954, a marriage between two people may be solemnised when the following requirements are met at the time of the marriage:
(a) neither party has an existing spouse who is still alive
(b) neither party—-
(i) is incapable of giving a legal consent to it due to mental incapacity
(ii) has experienced recurrent episodes of insanity
(iii) has been suffering from a mental illness to the degree or nature that renders them unfit for marriage and childbearing, even though they are capable of giving a legal permission.
Two same-sex couples filed writ petitions with the Supreme Court on November 14, 2022, requesting that same-sex weddings be recognized legally in India. The Special Marriage Act, 1954 (the Act) and its constitutionality were at the heart of the petitions. Abhay Dang and Supriyo Chakraborty filed the initial petition. Uday Raj Anand and Parth Phiroze Merhotra filed the second petition.
A Supreme Court bench made up of Justice Hima Kohli and Chief Justice D.Y. Chandrachud issued an order on November 25, 2022, instructing the Union to reply to the petitions. There are comparable petitions pending in the High Courts of Kerala and Delhi.
Senior Advocate Menaka Guruswamy and Advocate Karuna Nundy requested a two-judge bench made up of Justice P.S. Narasimha and CJI Chandrachud to transfer two cases that were pending in the Delhi and Kerala High Courts to the Supreme Court on January 3, 2023. On January 6, 2023, the Bench decided to list the transfer applications in addition to the main petition. (“Plea for Marriage Equality”)
A three-judge panel led by Chief Justice D.Y. Chandrachud and Justices P.S. Narasimha and J.B. Pardiwala transferred nine outstanding cases from the Delhi and Kerala High Court on January 6, 2023, addressing related problems.
A five-judge Supreme Court Constitution Bench rejected same-sex marriage legalization on October 17, sending the matter to Parliament for further legislation. The Bench decided that [1]the court cannot get involved and that there is no basic right to marry. The five judges were unable to agree on whether to grant queer couples the status of a legally recognized “civ[2]il union,” with three of them holding that such a union can only have legal status through enacted law, despite the fact that all five agreed that it was time to end discrimination against same-sex couples.
ISSUE RAISED
The petitioners contend that only marriages between “male” and “female” are recognized under Section 4(c) of the Act. This deprives same-sex couples of work opportunities, retirement benefits, surrogacy, adoption, and other marriage advantages, therefore discriminating against them. The petitioners requested that Section 4(c) of the Act be ruled unconstitutional by the court. A number of additional petitions against various personal laws have been linked to the plea. The petitioners contend that the rights to equality, freedom of speech, and dignity are violated by the refusal to recognize same-sex marriage. (Datta) The petitioners had requested a decision that the Special Marriage Act of 1954—which permits same-sex marriages in situations where a couple is prohibited from marrying under their personal law—be construed as gender-neutral. They claimed that the Special Marriage Act breached Articles 14, 15, 19, 21, and 25 by prohibiting same-sex, gender non-conforming, LGBTQIIA+ couples from being married. They also requested that the terms “husband” and “wife,” as well as any other gender-specific terms, be replaced with the terms “party” or “spouse.”
“No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship, except in the cases of relative or step-parent adoption,” states Central Adoption Resource Authority rule 5(3).
As the CJI delivered the decision, he stated that there was no evidence on file to prove that only a married heterosexual couple can provide stability to a child. (“From same-sex marriage to adoption rights for queer couples: Key takeaways from SC verdict | India News – Times of India”)
Atypical unions are subject to indirect discrimination under rule 5(3). Adoption is only possible for gay people on an individual basis. As a result, the prejudice against the LGBT+ community is strengthened.
Societal Stigma and Discrimination: Because their partnerships are not legally recognized, LGBTQ+ people are subject to societal stigma and discrimination, which advocates draw attention to. They contend that making same-sex marriage legal will lessen prejudice and increase public acceptance.
Family and Relationship Rights: Concerns about healthcare decisions, inheritance, adoption, spousal benefits, and other legal matters pertaining to same-sex couples’ families have been brought up, underscoring the necessity of legal recognition in order to safeguard these rights.
CONTENTION
Endorsing and facilitating same-sex marriage is not only a question of personal preference; it is an essential step in guaranteeing parity, protecting human rights, and promoting social advancement. The argument in favor of allowing same-sex unions is based on values that go beyond individual convictions and emphasize each person’s intrinsic worth and rights.
First off, allowing same-sex unions is consistent with the fundamental values of equality and nondiscrimination. It is incompatible with the fundamental principles of equal treatment under the law to deny someone the ability to marry because of their sexual orientation. A critical first step in redressing this injustice and demonstrating that all people, regardless of sexual orientation, should have equal rights and opportunities is allowing same-sex couples to marry.
In addition, same-sex marriage legislation helps to create a culture that is inclusive. It respects and appreciates the variety of human relationships as well as love and devotion in all of its manifestations. By supporting same-sex unions, we strengthen societal cohesiveness, lessen stigma and prejudice against LGBTQ+ people, and convey a strong message of acceptance.
There are important practical advantages to same-sex marriage being recognized legally as well. It guarantees access to important legal protections and advantages—like healthcare decisions, spousal benefits, and inheritance rights—that are critical to the stability and well-being of same-sex couples’ families.
Moreover, supporting same-sex marriage is about adapting to the changing times rather than changing social standards. Through tolerance, comprehension, and acceptance of other viewpoints, society advances. Legalizing same-sex unions is a reflection of a modern culture that honors the liberties and rights of all of its citizens.
To put it briefly, promoting and legalizing same-sex marriage is a critical first step in creating a society that is more compassionate, inclusive, and just. It refers to the fundamental values of equality, respect for human dignity, and the ability of every person to experience love and commitment, regardless of their sexual orientation. These ideas go beyond personal convictions.
RATIONALE
It is not only a question of taste or philosophy to support and legalize same-sex unions; rather, it is an expression of cultural development, a fundamental human right, and an acknowledgement of the variety that exists in all human relationships. The justification for supporting the legalization of same-sex unions is firmly based on the ideas of social progress, equality, and dignity.
Fundamentally, promoting same-sex marriage is consistent with the idea of legal equality. Denying someone the ability to marry because of their sexual orientation goes against the fundamental principle of equal legal treatment for all people. A crucial first step in redressing this injustice and demonstrating that all people, regardless of sexual orientation, should have equal access to chances for expressing love and commitment is the legalization of same-sex unions.
[3]Beyond rights, legal recognition of same-sex marriage denotes inclusion and cultural acceptance. Accepting same-sex marriage sends a strong message about the value of many kinds of relationships and love. By fostering an atmosphere of tolerance and understanding, it lessens the stigma and prejudice LGBTQ+ people experience and advances a society that is more caring and unified.
Furthermore, there are important practical ramifications for legalizing same-sex unions. Ensuring access to vital legal protections and advantages, including healthcare decisions, inheritance rights, and family stability, is crucial for the welfare and safety of families created by individuals of the same sex.
Promoting same-sex marriage is about changing social conventions to reflect modern ideals, not about questioning them. It is with inclusion, acceptance, and an understanding of the complexity of human interactions that society advances. The acceptance of same-sex unions is a sign of a society that has matured and come to value the liberties and rights of all of its citizens, regardless of their sexual orientation.
To put it simply, promoting and legalizing same-sex marriage is an essential first step toward creating a society that is more compassionate, just, and egalitarian. It resonates with the universal values of equality, dignity, and respect for everyone’s right to love and commitment, transcending particular opinions and ideologies.
DEFECTS OF LAW
Article 14 (Right to Equality): It is against the law for same-sex couples to be prevented from getting married because of their sexual orientation. Regardless of their sexual orientation, everyone has the right to equal protection and treatment under the law.
Article 15 (Prohibition of Discrimination): This article forbids discrimination against any citizen on the basis of sex, religion, race, caste, or place of birth. It is in conflict with the prohibition against discrimination based on sexual orientation.
Article 21: Right to Life and Personal Liberty: One aspect of the right to life and personal liberty is the ability to marry and start a family. Denying same-sex couples the opportunity to marry violates their freedom to openly express their partner of choice and live in dignity.
Article 19 (Freedom of Speech and Expression): A person’s choice and affiliation are expressed via marriage. Denying someone this right limits their ability to express themselves and make decisions depending on their sexual orientation. (Spandana and D’Souza)
Inefficiencies in Enforcement: Sometimes there are laws, but there aren’t enough means to enforce them. This makes it difficult to ensure responsibility and compliance, which reduces the effectiveness of legal requirements.
Gender Disparities: Laws pertaining to women’s rights and gender equality are not entirely comprehensive. It is imperative that legislation be strengthened to address problems like discrimination, uneven opportunity, and gender-based violence.
Complexity and Protracted Legal Processes: People are discouraged from pursuing legal recourse in India due to the country’s sometimes complex and protracted legal procedures. Justice might be more easily accessible and effective if legal procedures were made simpler.
Laws That Often Overlap or Contradict Each Other: When laws do this, it can lead to misunderstandings and irregularities in how they are interpreted and applied. For consistent application and clarity, laws must be harmonised.
Under the present interpretation of Indian laws, same-sex couples are denied the right to marry, which violates equality, non-discrimination, personal liberty, and the right to live with dignity. These articles jointly guarantee all of these rights.
As global human rights standards rise and society attitudes change, it becomes more and more inconsistent with equality and justice ideals for same-sex marriages to remain illegal.
INFERENCE
Some conservative organisations may view decisions that support LGBTQ+ rights as a challenge to cultural norms and traditional values. They may voice disapproval or resistance because they believe that these choices go against social norms.Differing views among individuals and organisations may have resulted from court rulings on LGBTQ+ rights. Certain societal sectors can perceive the assessments as a threat to their cultural ideology and values.Citing religious theories or views as justification, certain religious leaders or groups may express reluctance or resistance to decisions supporting LGBTQ+ rights.Even while the rulings uphold the more general ideals of equality and non-discrimination, some groups may misunderstand morality and social norms and consider the rulings as violating moral principles.
Works Cited
Datta, Sudipta. “Why did the Supreme court not allow same-sex marriage?” The Hindu, https://www.thehindu.com/news/national/why-did-the-supreme-court-not-allow-same-sex-marriage-explained/article67446993.ece.
“From same-sex marriage to adoption rights for queer couples: Key takeaways from SC verdict | India News – Times of India.” The Times of India, 17 October 2023, https://timesofindia.indiatimes.com/india/from-same-sex-marriage-to-adoption-rights-for-queer-couples-key-takeaways-from-sc-verdict/articleshow/104502058.cms?from=mdr. Accessed 26 December 2023.
Kumar, Sanjay. “IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION Writ Petition (Civil) No. 1011 of 2022 Supriyo @ Supriya Chakraborty &.” Supreme Court Observer, 17 October 2023, https://www.scobserver.in/wp-content/uploads/2023/01/Judgement-Plea-for-Marriage-Equality.pdf. Accessed 26 December 2023.
“Plea for Marriage Equality.” Supreme Court Observer, https://www.scobserver.in/cases/plea-for-marriage-equality/. Accessed 26 December 2023.
Spandana, Sai, and Joyston D’Souza. “Plea for Marriage Equality: Constitution Bench Day #8.” Supreme Court Observer, https://www.scobserver.in/reports/plea-for-marriage-equality-constitution-bench-day-8/. Accessed 26 December 2023.
[2]Datta, Sudipta. “Why did the Supreme court not allow same-sex marriage?” The Hindu, https://www.thehindu.com/news/national/why-did-the-supreme-court-not-allow-same-sex-marriage-explained/article67446993.ece.
Name :- Aditi
College Name:- Bharati Vidyapeeth New Law College Pune