Context

The Supreme Court sought the government’s response to pleas allowing the solemnisation of same-sex marriage under the Special Marriage Act.

What is the issue?

• The Supreme Court has held that criminalisation of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code was
• Hence, decriminalized same-sex relationships in India in 2018.
• However, decriminalizing homosexuality does not ensure equality and the rights must extend to all spheres of life, including the home, the workplace, and public places, etc.

Provisions Prohibiting Same-sex marriages:

• Section 292 of the IPC relates to obscenity, with plenty of room to encompass homosexuality under its ambit.
• Section 294 of IPC, which punishes “obscene behavior in public,” is also applicable and used to discriminate against gay men.
• It is crucial to highlight that the Protection of Children from Sexual Offences Act, 2012 removed the penalty for homosexual behavior involving consensual sex in England, however in India; consent is largely irrelevant for creating an offense as described under this provision.
• The Transgender Persons (Protection of Rights) Act, 2019: It exposes individuals to institutionalized tyranny and dehumanizes their bodies and identities.

The Special Marriage Act, 1954:

• It provides for registration of a “special form of marriage in certain cases” which includes the marriage by which a person can be taken advantage of by any person in India and all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess.
• Thus, the Act includes not only to citizens of India but applies to all persons from all walks of life whether Indian or not, atheist or agnostic, gay or straight, bisexual or bi-curious, homophobic or homogenous.
• Sections 4 to 14 of Chapter II of the Act deals with “Solemnization of Special Marriages”.
• Section 4 sets out the Conditions relating to solemnization of special marriages. As per the law a marriage between “any two persons” may be solemnized under this Act” on fulfilling certain conditions, one of which is that “the malehas completed 21 years of age and the female has completed 18 years of age.”
  • The use of the words “two persons” indicates that the section is gender-neutral and not gender-specific or binary.  
• Further, Section 4 (c) sets out the age of marriage using the article “the”before male and female and not the article “a” , where the used to refer to one or more people or things already mentioned or easily understood.
• The only place in which the words “wife”or “husband” are used is in the provision to Section 12(2).
• This states that a marriage will not be complete and binding on the parties unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties, – I, (A), take thee (B), to be my lawful wife (or husband).
• Further, the use of the word “wife” or husband” hardly matters. The terms are generically used and in a same-sex marriage, gender roles are not specifically assigned.

Concerns associated:

• Health issues: LGBT individuals experience a range of significant health disparities and a disproportionate rate of negative health outcomes.
• Likely to attempt more suicides: Adolescents with same-sex attraction are more than twice as likely as their peers to attempt suicide. 
• Lack of social security for the future: Elderly LGBT people are more likely to experience social isolation and face barriers to accessing needed care.