Why and how the Supreme Court should recognise same-sex marriage

Source– The post is based on the article Why and how the Supreme Court should recognise same-sex marriagepublished in The Indian Express on 7th December 2022.

Syllabus: GS1- Social empowerment. GS2- Vulnerable sections

Relevance– Issues related to LGBT

News– The article explains the issue of same-sex marriages.

Recently petitions were filed in higher courts of country for legal recognition of same sex marriages .

What are legal issues with same sex marriages in India?

The Special Marriage Act, 1954 under Section 4 lays down the conditions relating to solemnization of special marriages. It lays down the condition that male has completed the age of 21 years and female the age of 18 years.

Throughout the legislation, there are  references to “husband” and “wife” in provisions relating to marriage.

If same-sex marriages are to be recognized under SMA, then the SC would need to interpret in every reference to husband and wife under the present statute the word “spouse”.

What is the case of South Africa regarding the same subject?

The constitutional court of Africa did the same thing in  2005.

It held that same sex couples should be enabled to enjoy the status and benefits that is given to heterosexual couples.

What are other provisions of law that need to be corrected for same-sex marriages?

Section 5, 6, 7, 8, 9, 10 of SMA mandates a notice of intended marriage publicly, the filing of objections by any parties who may object to any marriage, and the decision making by the marriage officer on such objections.

These sections are used by families of couples to prohibit inter-caste marriage. It will also be used against the same-sex marriages.

There is a need for seeking the deletion of these sections.

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