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  • 21 April, 2023

  • 4 Min Read

Civil Union and Marriage

Civil Union and Marriage

  • The Centre has objected to the Supreme Court hearing petitions seeking legal recognition of same-sex marriage on the grounds that the judiciary has the authority to do so for the "socio-legal institution" of marriage.
  • The CJI underlined in his answer to the Centre's objections that the hearing's focus will be on creating a concept of a "civil union" that receives legal recognition under the Special Marriage Act, 1954.

Describe Civil Union.

  • A civil union, commonly referred to as a civil partnership, is a recognised legal arrangement, much like marriage, that was primarily developed to give same-sex couples legal status.

  • Similar to the spousal privilege granted under Section 122 of the Indian Evidence Act, civil unions would come with rights such as inheritance rights, property rights, parental rights, job benefits to spouses, and the right to refrain from testifying against one's partner.

The distinctions between a civil union and marriage

  • Legally, married couples cannot refer to themselves as "civil partners," and civil partners cannot refer to themselves as married.
  • A dissolution order dissolves civil partnerships. through getting a final order, a marriage can be ended through divorce.
  • The legal right to marry is gradually being recognised through civil unions.
  • Several civil unions were transformed into marriages as a result of the legalisation of same-sex unions. For instance, in Austria, same-sex couples were permitted to enter into civil unions between 2010 and 2017. However, once a court ruled in January 2019 that civil unions were discriminatory, such marriages became legally recognised.

Other nations that permit civil unions include:

  • USA: In 2015, the Supreme Court of the United States (SCOTUS) issued a historic decision in "Obergefell v. Hodges" that legalised same-sex unions throughout the country.
  • Prior to 2015, most US states had civil union statutes that permitted same-sex marriage.
  • Sweden: Prior to 2009, LGBTQ couples were eligible to apply for civil unions and take advantage of perks including the ability to adopt. In 2009, Sweden approved same-sex unions.
  • Similar to this, nations including Brazil, Uruguay, and Chile had already acknowledged same-sex couples' legal right to marry before they publicly accepted their right to create civil unions.

What is the situation with same-sex unions in India?

  • While homosexuality under Section 377 of the IPC was decriminalised by the Supreme Court in the Navtej Singh Johar v. Union of India (2018) judgement, same-sex marriages have not yet been granted legal recognition in India.
  • Since then, a number of applications have been submitted to the SC, and the judiciary has begun to consider these petitions and investigate the applicability of the Special Marriage Act of 1954's Civil Unions provisions.
  • Under the Special Marriage Act of 1954, it is legal for people from two different religious backgrounds to unite in matrimony, which goes against many personal and religious regulations.

Special Marriage Act of 1954

  • According to the relevant personal law statutes—the Hindu Marriage Act of 1955, the Muslim Marriage Act of 1954, or the Special Marriage Act of 1954—all weddings in India may be registered.
  • Unaffected by the religion or belief practised by either partner, the Special Marriage Act, 1954 is an Act of the Parliament of India that provides for civil marriage for citizens of India and all Indian nationals abroad.
  • 30 days before to the planned wedding day, the couples must give the marriage officer a notice along with the necessary paperwork.
What are the defences for legalising same-sex unions?

Arguments in support of:

  • The SC stated that there is no universal definition of what it means to be a man or a woman. More complex than merely their physical body, it is.
  • Change is Fundamental Law: As society changes through time, laws must likewise adapt to reflect these societal changes.
  • Lower Legal Difficulties: To make same-sex marriage legal, the Special Marriage Act of 1954 just has to be read broadly. No changes to personal laws are required.
  • Upholding equality means ensuring that gay and lesbian couples have the same freedoms and rights as straight couples.
Argument against
  • Societal Acceptance: It is contended that society may not embrace the idea that same-sex marriages should be treated equally to heterosexual unions.
  • Any connection can be accepted by society regardless of laws or court rulings.
  • Problems with Expanding the Purpose: Giving the term "Gender" a broader definition could be problematic; if a guy with biological characteristics of a man begins to identify as a woman, it will be difficult for the authorities to decide whether to treat him as a man or woman in accordance with the law.
  • Legal difficulties: Legal challenges may arise if same-sex marriage is made legal. The National Commission for the Protection of Child Rights (NCPCR), for instance, has argued that conferring legal status would violate the Juvenile Justice Act of 2015.

Source: Indian Express

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