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26th November 2022 (6 Topics)

Supreme Court seeks response to legalise Same-sex marriages


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

What is the issue?

  • The Supreme Court has held that criminalization of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code was clearly unconstitutional.
  • 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.

How LGBTQ+ is defined in India?

  • LGBTQ+ citizens from 7% to 8% of the population of the country.

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.
  • LGBTQA+ is an acronym for Lesbian, Gay, Bisexual, Transgender, Queer, Intersex Asexual, and others. They are the people who don’t identify with cisgender heterosexual ideals.
  • The community includes specific social groups referred to as the Third Gender.

What is the scope of legalizing same-sex marriages in India?

  • The Special Marriage Act, of 1954 provides for the 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 citizens of India but is applicable 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 the 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 male has 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.

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