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How two laws and religions in India are open to same-sex marriage

  • Published
    16th Dec, 2022
Context

The Hindu Marriage Act and the Special Marriage Act, are gender-neutral and are therefore already open to same-sex marriage.

How do the two acts are gender-neutral?

  • Both Acts refer to “two Hindus” or “two persons” without specifying gender.
  • Thereafter, the Acts use the words “bride” and “groom”.
  • These two words are not always gender-specific in India.

Male mystics as Brides of Male Gods

  • Male mystics in India, both Hindu, and Muslim, have for centuries written about themselves as brides of a male God.
  • Many medieval mystics (both male and female) who attained fame as devotees of Krishna, were said to be reincarnations of Krishna’s female lovers.
    • This is because the spirit (atman) in Hinduism has no gender or other characteristics and can be reborn in any gender, species, or community.

Petition in the Court:

  • Recently, on the above grounds, two couples filed a petition in the Supreme Court.
  • Argument: They argued that they should be allowed to marry under the Special Marriage Act because it uses the terms “bride” and “groom” which are gender-neutral.
    • They also argued that the Constitution of India gives all “persons” the fundamental right to marry.
  • Other Petitions: Some of the petitions seeking recognition of same-sex marriage under India's 1954 Special Marriage Act (SMA) are pending in state-level high courts in Delhi and Kerala.

Government’s Stand:

  • The Centre government has stated that considerations of “societal morality” are relevant in considering the validity of a law.
  • It is for the Legislature to enforce such societal morality and public acceptance based upon Indian ethos.

Status of Marriages in India:

  • The right to marry is not expressly recognized either as a fundamental or constitutional right under the Indian Constitution.
  • However, same-sex marriage is also not legalized in India.
  • Though marriage is regulated through various statutory enactments, its recognition as a fundamental right has only developed through the judicial decisions of India’s Supreme Court.
  • Such declaration of law is binding on all courts throughout India under Article 141 of the Constitution.
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