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'Notion of man, woman not based on genitals’: SC on same-sex marriages

  • Category
    Polity & Governance
  • Published
    21st Apr, 2023

Context

The Supreme Court bench hearing petitions seeking legal recognition of same-sex marriages  made it clear that it will not go into personal laws governing marriages and said the very notion of a man and a woman, as referred to in the Special Marriage Act, is not 'an absolute based on genitals'.

Key-highlights 

  • Bench’s points: Terming the issue involved in the pleas as 'complex', the bench asked the lawyers appearing in the matter to advance arguments on the Special Marriage Act, a religion neutral statue.
    • The bench said it is not the question of 'genitals' and the very notion of the special law having 'man and woman' is not restricted to the genitals.
  • Centre’s Objection: Centre raised preliminary objections to the Supreme Court hearing, says parliament is the only constitutionally permissible forum to decide on creation of a new social relationship.

What is the Special Marriage Act?

  • The Special Marriage Act (SMA), 1954 is an Indian law that provides a legal framework for the marriage of people belonging to different religions or castes.
    • It governs a civil marriage where the state sanctions the marriage rather than the religion.
    • The Indian system, where both civil and religious marriages are recognised, is similar to the laws in the UK’s Marriage Act of 1949.
  • Applicability:
    • The applicability of the Act extends to the people of all faiths, including Hindus, Muslims, Sikhs, Christians, Sikhs, Jains, and Buddhists, across India.
  • Recognition of Marriage:
    • The Act provides for the registration of marriages, which gives legal recognition to the marriage and provides a number of legal benefits and protections to the couple, such as inheritance rights, succession rights, and social security benefits.
    • It forbids polygamy and declares a marriage null and void if either party had a spouse living at the time of the marriage or if either of them is incapable of giving valid consent to the marriage due to unsoundness of mind.
  • Written Notice:
    • Section 5 of the Act specifies that the parties must give written notice to the Marriage Officer of the District and that at least one of the parties must have lived in the district for at least 30 days immediately before the date of such notification.
    • Section 7 of the Act allows any person to object to the marriage before the expiration of 30 days from the date of the notice's publication.
  • Age Limit:
    • The minimum age to get married under the SMA is 21 years for males and 18 years for females.
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