The present generation is highly acceptable when it comes to same-sex marriages. With more than 31 countries across the globe supporting same-sex marriage, will India be the next to legalise the same?
Recently a gay couple filed a public interest litigation in the supreme court for marriage registration under the Special Marriage Act,1954. Further, they have requested the supreme court to make the Act gender-neutral and legalise same-sex marriages for LGBTQ + community. More precisely, Section 4 of the Special Marriage Act of 1954 permits two persons to enter into matrimony, whereas a subsequent condition restricts its application to the community.
As per their petition,
‘The use in Section 4 (C)of the words ‘male’ and ‘female’, as well as the use of gender in the language such as terms ‘husband/wife’ or the ‘bride/groom’ in other Sections of the Act, limit the access to marriage to a couple comprising one male and one female. Such limiting of access is violative of the fundamental rights of LGBTQ+ Individuals and considered unconstitutional.’
The appeal highlights that this particular gender language violates the basic fundamental rights guaranteed by the constitution under part 3. It also encompasses articles 14, 15, 19(1)(a), and 21.
Marriage Registration in India
As per Indian law, it is mandatory to register your marriage under either the Hindu Marriage Act,1955, or Special Marriage Act,1954. If you are a Muslim, the marriage should be registered under the Muslim Marriage Act of 1954.
It is the responsibility of the legal constitution to make sure that the rights of both the husband and wife involved in a marriage are unaffected by external factors like religion practised by either of the parties. Based on this motto, the Special Marriage Act of 1954 was passed. This Act supports and provides civil marriage rights for citizens both in India and abroad.
Laws That Provide Legal Rights and Support Marriage Registration in India
Based on religious beliefs there are two major Acts that dominate marriage registration online in India.
The Hindu Marriage Act of 1955
This Act applies to all Indian citizens. A couple can also apply for registration if the union is previously solemnised. Citizens who identify themselves as Hindus, Sikhs, Jains and Buddhists are eligible to apply for a marriage license and register their marriage in India under this Act.
Muslim Marriage Act of 1954
The Muslim Marriage Act of 1954 was introduced into Indian constitution. The Act governs the solemnisation of marriages among India’s Muslim minority. The bride and groom should fully consent to marriage under this Act.
Marriage Registration in India Under the Special Marriages Act, 1954
The Special Marriage Act of 1954 permits Indian citizens to marry and get legally recognised as a married couple irrespective of religion. Under this Act, the couple registers their marriage and gets officially solemnised without any rituals by the authorities.
Any couple applying under the Special Marriage Act of 1954 should provide a 30 days notice to the sub-registrar under the jurisdiction where they reside. This notice will be posted on the board for 30 days. The marriage registration will be completed if the registrar doesn’t receive any objections. Indian citizens who are not eligible to register their marriage under the Hindu Marriage Act can opt- out of registering under the Special Marriage Act,1954. This is where the Gay couple is asking for an amendment. As per the couple’s plea, none of those mentioned above three Acts supports same-sex marriage.
Marriage Registration for the LGBTQ+ Community Under the Special Marriage Act of 1954
As previously mentioned, you need not have any religious ceremonies for marriage registration under the Special Marriage Act of 1954 and accepting same-sex marriages is not difficult under this Act. By altering Section 4 ( c ) of this Act, and gender neutralising it can make gay marriage registration legal in India.
Marriage Registration for LGBTQ+ Couples on the International Front
Worldwide, 31 countries permit same-sex unions. Among the nations that have legalised homosexual marriage are Argentina, Australia, Austria, Belgium, Brazil, Chile, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Switzerland, Taiwan, United Kingdom, United States of America, and Uruguay.
Conclusion
Every human being has the right to express affection without discrimination. The world is opening up to this idea. The LGBTQ community is gaining significant support. Decriminalising Section 377 of the Indian penal code is a major support for the community. However, this doesn’t directly translate to the right to marriage registration. With the constant efforts of the LGBTQ+ community, let’s believe this amendment will also be passed. If you have further queries, reach out to Vakilsearch. Our legal experts can provide top-notch legal advice.
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