SC Dissmed Review Petition on Same-Sex Marriage | 14 Jan 2025

Source: TH 

Why in News? 

The 5-bench Supreme Court of India (SC), in a recent judgment rejected review petitions against its October 2023 ruling that had refused to legalize same-sex marriage.  

• In the October 2023 ruling, the Bench headed by Chief Justice of India delivered a 3:2 majority verdict against granting constitutional validity to same-sex marriages. 

What is Same-Sex Marriage? 

• About: 
  • Same-sex marriages refer to marriages between two individuals of the same gender, i.e. marriage between two men or between two women. 
• Legality in India: India does not recognize marriages or civil unions of same-sex couples.  
  • Supreme Court Judgment 2023: The Supreme Court (SC) ruled that the Special Marriage Act (SMA), 1954, does not apply to same-sex couples and held that it is for Parliament and state Legislature to formulate laws on it. 
    • SC held that there is no fundamental right to marry under the Indian Constitution. 
    • However, SC upholds the right of same-sex couples to enjoy equal benefits and rights similar to those of live-in partners, as guaranteed under Article 21 (Right to Life). 

What is the Special Marriage Act (SMA) 1954? 

• About: 
  • The SMA, 1954, provides a legal framework for marriage between individuals of different religions or castes in India. 
  • It governs civil marriages, where the state sanctions the marriage instead of religious authorities.  
• Applicability:  
  • The SMA applies to people of all faiths, including Hindus, Muslims, Sikhs, Christians, Jains, and Buddhists across India. 
  • Under the SMA, 1954, foreigners can also register their marriage in India if both parties have valid passports and at least one has resided in India for a minimum of 30 days before filing the marriage notice. 
• Key Provisions: 
  • Marriage Recognition: The Act facilitates the registration of marriages, granting legal recognition and providing rights such as inheritance, succession, and social security benefits.  
  • Notice Requirement: According to Section 5, the parties must provide written notice to the Marriage Officer of the district, with at least one party having resided in the district for a minimum of 30 days prior to the notice.  
    • Section 7 allows objections to the marriage within 30 days of the notice being published. 
  • Age Limit: The minimum marriage age under the SMA is 21 years for males and 18 years for females. 

What are the Arugments in Favour of Same Sex Marriage? 

• Equality and Human Rights: Denying same-sex couples the right to marry creates second-class status, violating fundamental rights under international human rights conventions.  
  • The UDHR upholds the right to marry as a fundamental human right, emphasizing equality and dignity. In India, activists argue that this aligns with Article 21 (Right to Life) of the Constitution. 
• Cohabitation as a Fundamental Right: The SC in judgments such as Lata Singh v. State of UP, 2006 and Shakti Vahini v. Union of India, 2018 has affirmed cohabitation as a fundamental right under Article 21, obligating the government to legally recognize relationships between same-sex couples. 
• Legal and Economic Benefits: Legalizing same-sex marriage provides equal access to the legal and economic benefits associated with marriage, inheritance rights, and social security benefits. 
• International Principles: Same-sex marriage is legal in more than 30 countries, aligning with global human rights principles that advocate for equality and dignity for all individuals, irrespective of sexual orientation. 

What are the Arguments Against Same-Sex Marriages? 

• Religious and Cultural Beliefs: Many religious and cultural groups assert that marriage should be between a man and a woman, arguing that redefining marriage challenges their foundational values and beliefs. 
• Against Natural Order: Some oppose same-sex marriage on the grounds that marriage's primary purpose is procreation, which they believe same-sex couples cannot fulfill, thus contradicting the natural order. 
• Legal and Regulatory Challenges: Concerns are raised about potential legal complications, such as adjustments needed in inheritance, and property laws which could involve complex legal changes. 
• Adoption Issues: When same-sex couples choose to adopt children, they may face societal stigma, discrimination, and adverse effects on the child's emotional and psychological health, particularly in Indian society. 

Way Forward  

• Legal Reforms: Amendments to the SMA, 1954, could grant same-sex couples the same rights and legal benefits as heterosexual couples.  
  • Alternatively, contract-based agreements can be introduced to ensure similar rights for homosexual individuals. 
• Dialogue and Engagement: Engaging with religious and cultural leaders can help bridge gaps between traditional beliefs and evolving perspectives on same-sex relationships. 
• Judicial led Reform: The LGBTQIA+ community can challenge existing laws that prohibit same-sex marriage in courts, potentially setting legal precedents for its recognition. 
• Collaboration: Legalizing same-sex marriage requires collective efforts from all stakeholders, including the LGBTQIA+ community, government, civil society, and religious leaders, to build an inclusive society where everyone can have equal rights.