Toward legalising same-sex marriage

Source: The post is based on an article “Toward legalising same-sex marriage” published in The Hindu on 28th November 2022.

Syllabus: GS 2 – Social Justice

Relevance: problems with LGBTQI+

News: Two LGBT couples have filed petitions in the Supreme Court to allow recognition of same-sex marriage under the Special Marriage Act, (SMA) 1954.

The SMA provides a civil form of marriage for couples who cannot marry under their personal law and both the petitioners seek to recognise same-sex marriage in relation to SMA.

What are the arguments of petitioners?

SMA is beyond the purview of the Constitution as it discriminates between same-sex couples and opposite-sex couples.

Act denied same-sex couples both legal rights as well as the social recognition and status.

Recognition of same sex marriage is in continuation of the previous SC judgment – Navtej Singh Johar judgment of 2018 (decriminalising homosexuality) and the Puttaswamy judgment of 2017 (affirming the Right to Privacy as a fundamental right).

Section 4 of the SMA on one hand allows marriage between any two persons but on the other hand Section 4(c) of the SMA uses gender specific words like husband/wife. This limits the Act to opposite genders.

Therefore, both petitioners demanded that SMA should be made gender neutral.

One of the new petitioners highlighted SC judgment of NALSA vs Union of India judgment (2014). The court in this judgment held that non-binary individuals were protected under the Constitution and fundamental rights such as equality, non-discrimination, life, freedom, etc. also applies to these individuals.

What is the stand of the government on the issue?

The centre last year has opposed the same sex marriage. It said that the same sex marriage is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws.

It further said that as per law, marriage was only permissible between a “biological man” and “biological woman”.

Which country in the world has legalised same sex marriage?

The Netherlands was the first country in 2001 to legalise same-sex marriage and many other countries followed it.

Today, around 32 countries have legalised same-sex marriages. Many of these countries have recognised same-sex civil unions.

Civil unions or partnerships 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, etc.

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