Legal recognition of same-sex marriage

Reference:

The Supreme Court has rejected the review petition seeking legal recognition of same-sex marriage. The court argues that law making is the jurisdiction of Parliament.

Legal status of same-sex marriagein India:

• In the year 2023, a bench headed by then Chief Justice D.Y. Chandrachud refused to repeal or change the provisions of the Special Marriage Act, 1954, citing 'institutional limitations'.
• According to the Supreme Court, same-sex couples cannot claim their marriage as a fundamental right under the Constitution.

Judiciary's side:

• The right to marry is not a fundamental right. Therefore, the Supreme Court also refused to repeal or reinterpret the provisions of the Special Marriage Act, 1954 with a view to considering same-sex marriage.
  • However, the court directed the Central Government to ensure non-discriminatory treatment to the same-sex community in access to goods and services.
• Considering the complex and interrelated nature of marriage and religion, the Supreme Court argued that the court would not reinterpret the Personal Laws governing marriage.
• Earlier, in the case of 'Navtej Singh Johar vs Union of India' (2018), the Supreme Court had removed homosexuality from the category of crime.

Central Government's stand:

Regarding the Special Marriage Act

• In the process of bringing equality between same-sex marriage and marriage prevalent and valid in India, 160 laws will be affected.
• Under the Special Marriage Act, the lawmakers intended to include only heterosexual marriages. 
• Under the Special Marriage Act, the wife can seek divorce on the grounds of rape, sodomy or bestiality after marriage.
  • This right is specifically given to the wife but there is confusion about this right in the case of same-sex marriage.

Regarding the challenge in regulation of marriage:

• Recognizing gay marriages can also challenge the prohibited degree of marriage in the future, arguing on the freedom and autonomy of sexual orientation.
  • Prohibited degree of marriage means that a person cannot marry his descendants, such as parents, grandparents.
• The Central Government has proposed to form a committee headed by the Cabinet Secretary to address the 'humanitarian concerns' of same-sex couples without giving legal recognition to their marriage.