Context

• The article put emphasis upon expanding the institution of marriage to include all gender and sexual identities by legalizing same-sex marriage in India, thus paving way for widening constitutional rights on freedoms and liberties.
• In India, marriages are solemnized under personal laws such as the Hindu Marriage Act 1955, Indian Christian Marriage Act 1872, Muslim Personal Law (Shariat) Application Act 1937 etc., and same­ sex and queer marriages are not clearly recognized.

Background

• Apex court directive: The Supreme Court has sought the Government’s response to appeals for allowing same-sex marriage under the Special Marriage Act (SMA) 1954, in a bid to provide legal sanction to widening social customs.
  • The petition filed in SC argued that the SMA 1954 was “ultra vires” to the Constitution as it denies same-sex couples both “legal rights as well as the social recognition and status” that came from marriage.
  • The petitioners thus emphasized to make the 1954 Act gender-neutral which discriminates between ‘same-sex couples’ and ‘opposite-sex couples.’
• About the SMA 1954: It provides a civil form of marriage for couples who cannot marry under their personal law, thus validating and registering interreligious and inter-caste marriages in India.
  • It applies not only to all citizens of India but also all Indian nationals in foreign countries, irrespective of religion or faith followed by either party.
  • This Act includes Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists marriages.
• Domain of marriages cannot be immune to reform and review:
  • For instance, Self­ respect marriages were legalised in Tamil Nadu in 1967 and subsequently, in Puducherry (1971) through amendments to the Hindu Marriage Act, 1955.
  • These are commonly conducted among those who are part of the Dravidian Movement, have done away with priests and religious symbols such as fire or saptapadi (seven steps or vows).
  • It is seen as a strong move towards breaking caste ­based practices within the institution of marriage.

Government’s stand

• The Union government earlier in the Delhi High Court has remarked that the marriage between two individuals of the same gender is neither recognised nor accepted in any personal laws or any codified statutory laws.
• It said that as per SMA 1954, the marriage was permissible between a “biological man” and “biological woman”.
• It also shed misconceptions around Navtej Singh Johar judgment by holding that it merely decriminalizes homosexuality and does not talk about marriage.
• The government also argued against the urgency of the pleas in the background of the second wave of COVID­19 cases.

Indian judiciary’s take on same sex marriages

• In 2019, the Madras HC ruled that a marriage solemnized between a male and a transwoman, both professing Hindu religion, is a valid marriage in terms of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same.
  • It employed a conscious interpretation holding that the term ‘bride’ under the Hindu Marriage Act, 1955 includes transwomen and intersex persons identifying as women.
  • Thus, the judgment expanded the scope of a term used in the Hindu Marriage Act, 1955 in a progressive manner and set the stage for re­imagining marriage rights of the LGBTQIA+ community.
• Hadiya case (Shafin Jahan vs K.M Ashokan): In 2018, the SC of India removed Hadiya (earlier Akhila Ashokan) who had married Shafin Jahan and adopted Islam from the custody of her parents as it was against her will.
  • The court observed that the right to choose and marry a partner is a constitutionally guaranteed freedom and the intimacies of marriage lie within a core zone of privacy, which is inviolable and that society has no role to play in determining choice of partners.
• Navtej Singh Johar judgment: In 2018, the five-judge SC Bench decriminalised homosexuality and unanimously held that the criminalisation of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code was unconstitutional.
• NALSA vs Union of India judgment: The SC in 2014 held that non-binary individuals (gender-queer) were protected under the Constitution and fundamental rights such as equality, non-discrimination, life, freedom and so on could not be restricted to those who were biologically male or female.

Logical interpretation of above cases

• Any legal or statutory bar to same­ sex and queer marriages must necessarily be held to be unconstitutional and specifically violative of Articles 14 ( Right to equality), 15 (Prohibition of discrimination on certain grounds) and 21 (Right to life) of the Constitution of India.
• Thus, no longer can the position of the Union Government that marriage is a bond between “a biological man and a biological woman” be acceptable.

International jurisprudence

• A total of 32 countries around the world have legalised same-sex marriages, some through legislation while others through judicial pronouncements.
• Few are mentioned below as follows:
  • Netherlands: It was the first country in 2001 to legalise same-sex marriage by amending its civil marriage law.
  • South Africa: In 2005, the Constitutional Court of South Africa unanimously held that the common law definition of marriage i.e., “a union of one man with one woman” was inconsistent with the Constitution of the Republic of South Africa, 1996.
  • Australia: The Same-Sex Relationships (Equal Treatment in Commonwealth Laws General Law Reform) Act was enacted in 2008 to provide equal entitlements for same-sex couples in matters of social security, employment and taxation.
  • England and Wales: The Marriage (Same Sex Couples) Act 2013 enabled same-sex couples to marry in civil ceremonies or with religious rites.
  • USA: In 2015, the Supreme Court of the United States ruled that the fundamental right to marry is guaranteed to same­sex couples and treated on a par with opposite­ sex marriages.

Conclusion

• The last two decades have witnessed tremendous progress in establishing civil rights for the LGBTQIA+ community.
• As international and domestic laws ease in expanding human rights, the provision of marriage rights to same­ sex and queer couples is only a matter of time.
• Hence, India should think beyond the binary, understand the needs of the LGBTQIA+ community and review its existing legal architecture in order to expand the institution of marriage irrespective of gender identity and sexual orientation.