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Inaction and intervention

  • Published
    15th Mar, 2023


  • The Supreme Court’s decision to refer to a Constitution Bench the issue of granting legal recognition to same-sex marriages can be seen as an important step towards ensuring gender equality, despite apprehension that it is encroaching on the legislative domain.

Case for same sex marriages:

  • Petitioners’ view:    Petitioners before the Court view the idea of giving of legal status for marriages between people belonging to the same sex as a natural consequence of the 2018 judgment decriminalising homosexuality.
  • Government’s view:   The Government contends that there is no need to depart from the heteronormative understanding of marriage and if such an idea will be needed, there ought to be such a change, it must come from the legislature.
  • Court’s Intervention: The Supreme Court in its judgement in 2018 decriminalised homosexuality and legalised sexual intercourse among LGBTQ+ Community.

India and laws for same sex marriages:

  • Special Marriage Act, 1954: The act allows the solemnisation of a marriage between any two persons and is used by those who are unable to register their marriages under their respective personal laws.
  • Right to Marriage: The Union government has argued that the decriminalisation of consensual relations between adults of the same sex has removed the stigma attached to homosexuality, but has not conferred the right of marriage. 

Legislative power for marriage provisions: And that the state is entitled to limit its recognition to marriages involving heterosexual couples.

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