Same sex Marriage and legality

A same-sex marriage is a legal union between two people of the same gender. The government usually recognises it and grants them the same legal rights and protections as heterosexual couples,

also known as homosexual marriage or gay marriage

At present it is legally performed and recognized in more than 30 countries.

The most recent country legalising it is Mexico

The most recent country to declare it illegal is Uganda .

The International Lesbian, Gay, Bisexual, Trans and Intersex Association (Ilga) monitors the progress of laws relating to homosexuality around the world.

It says the death penalty is the legally prescribed punishment for same-sex sexual acts in Brunei, Iran, Mauritania, Saudi Arabia, Yemen and in some northern states of Nigeria.

In five countries - Afghanistan, Pakistan, Qatar, Somalia, and the United Arab Emirates - there is no legal clarity and the death penalty could be applied

India does not possess a unified marriage law, and as such every citizen has the right to choose which law will apply to them based on their community or religion. Although marriage is legislated at the federal level, the existence of multiple marriage laws complicates the issue.

In India, marriages are solemnised under personal laws such as the Hindu Marriage Act, 1955, Indian Christian Marriage Act, 1872, Muslim Personal Law (Shariat) Application Act, 1937.

At present, same-sex and queer marriages are not clearly recognised in India. However, we are not deprived of judicial guidance.

What is SMA ACT?

The Special Marriage Act, 1954 (SMA) was enacted to facilitate the marriage of couples professing different faiths and preferring a civil wedding.

Conditions - The marriage of any two persons may be solemnised under the SMA, subject to the man having completed 21 years of age and the woman 18.

Neither should have a spouse living.

Both should be capable of giving valid consent and should not suffer from any mental disorder of a kind that renders them unfit for marriage.

They should not be within the degrees of prohibited relationship in such a way that their religion does not permit such marriages.

Procedure - Parties to an intended marriage should give notice to the marriage officer of the district in which one of them had resided for at least 30 days.

The marriage has to be solemnised within 3 months of the notice, and if it is not, a fresh notice will be needed.

 Section 4 of the sm act provides that any two persons can get married, if the male has completed 21 years of age and the female 18 years. the court said it would examine if marriages under sm act could be defined through interpretation to mean marriage between two persons instead of between “man and woman” and, thus, make the law gender neutral.

Objections - The law also provides for objections to the marriage.

Any person can object to the marriage within 30 days of the publication of the notice on the ground that it contravenes one of the conditions for a valid marriage.

The marriage officer has to inquire into the objection and give a decision within 30 days.

If he refuses permission for the marriage, an appeal can be made to the district court and the court’s decision will be final.

Navtej Singh Johar judgment, 2018

Decriminalised homosexuality and held that the Section 377 of the Indian Penal Code was unconstitutional.

It had noted that homosexuals

Has the right to live with dignity

Are entitled to protection of equal laws

Are entitled to be treated as human beings without any stigma

It had stated that a person’s bodily autonomy be constitutionally protected and that sharing intimacy in private with a person of choice formed a part of the individual’s right to privacy.

Latest advancements --

A five-judge bench led by CJI Dhananjaya Y Chandrachud said that it will not be touching upon the aspects of personal laws, adding an “incremental approach” to the process of judicial determination in the case will reflect “sage wisdom”.

The bench said that there is an element of legislative action involved in the matter and thus, it would be prudent to confine the scope of the matter to recognition of same-sex marriages under the SMA.

“Confine yourself to this canvas and allow society to evolve, parliament to evolve... in these times of evolving consensus, we have to move towards a more equal future but at the same time, we have to be conscious of our own limitations,” the bench told the petitioners, led by senior counsel Mukul Rohatgi.

“There is no absolute concept of a man or an absolute concept of a woman at all. It’s not the question of what your genitals are. It’s far more complex, that’s the point. So, even when Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute,”

Says CJI

Conclusion:

1. In favour of legalising Same-Sex Marriage:

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

Right to marry a person of one’s choice is a fundamental right.LGBTQ+ community have the same human, fundamental and constitutional rights as other citizens.

barring them from marriage violates their right to equality.

There is need to think about situation when a person of such inclination has to live his life for the years then there will be very problems if his partner is not legally recognised in the Civil society for example if in future adopts a child then the child adoption loss have some clauses regarding the guardianship and who is taking the adoption where they will be app problem if the adoption centre is not satisfied that the other person is legally allowed to do so or not, another example of a school or educationstitution how will someone mention the name of his partner in various columns of forms and formalities when they are not legal recognised, in case of hospital emergencies in where in various consent forms what will happen if a person has unfortunately gone to an accident and has been admitted in a hospital and that moment if hospital requires a consent of the partner for an operation they will see that the other person standing is not legally considered a partner they will be repurcussions. Globally many countries have actually address to this issue they are the view that is a person of such inclination has decided to live the live that way and they must be back and support it by the government so that they live their life the way they want without any legal problems.

Global practice: Same-sex marriages are legal in at least 33 countries, including the United States, Australia, Canada, and France.

2.Against legalising Same-Sex Marriage:

Various people society are concern that if it is legalise then it will disturb the social order of the nation as a current to the culture it is not allow to do so, The Hindu Marriage Act Muslim marriage laws and special Marriage Act will be in contradiction with respect to such situation.

Refrence: BBC, HT , INDIA TODAY, HINDU, TOI ANI,NDTV