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  • 03 December, 2022

  • 7 Min Read

Same-sex Marriage under the Special Marriage Act, 1954

Same-sex Marriage under the Special Marriage Act, 1954

  • In response to a petition filed by two gay couples seeking recognition of same-sex marriage under the Special Marriage Act of 1954, the Supreme Court has served notice to the Indian Government and Attorney General.
  • A two-judge panel led by Chief Justice of India D Y Chandrachud issued the notice as a consequence of numerous petitions.
  • Same-sex marriage is not recognised, which amounts to discrimination that undermines the dignity and self-actualization of LGBTQ+ couples.

What are the petitioners' arguments?

  • Insofar as it discriminates against same-sex couples and opposite-sex couples, depriving same-sex couples of both legal rights and the social respect and status that come with marriage, the Act is in violation of the Constitution.
  • Any marriage between two people should be subject to the Special Marriage Act of 1954, regardless of their sexual orientation or gender identity.
  • Otherwise, the Act should be deemed to be in violation of the Fundamental Rights to Equality and a Life of dignity since "it does not provide for the solemnization of marriage between same sex couple."
  • The Act ought to provide same-sex couples with the same level of protection as it does for inter-caste and inter-religious unions.
  • By simply decriminalising homosexuality, not enough progress has been made; LGBTQ+ people need equality in all areas of life, including the job, the family, and public spaces.
  • Currently, 7% to 8% of the nation's population identify as LGBTQ+.

Is Same-Sex Marriages Legal in India?

  • The Indian Constitution does not expressly recognise the right to marriage as a basic or Constitutional Right.
  • Although marriage is governed by a number of statutory laws, its recognition as a basic right only came about as a result of Supreme Court of India rulings. According to Article 141 of the Constitution, this pronouncement of law is obligatory on all courts in India.

What are the Supreme Court's opinions on same-sex unions?

  • Shafin Jahan v. Asokan K.M. and others (2018): Marriage as a Fundamental Right
  • While referring to Article 16 of Universal Declaration of Human Rights and the Puttaswamy case, the SC held that the right to marry a person of one’s choice is integral to Article 21 of the Constitution.
  • According to Article 16(2) of the Indian Constitution, discrimination cannot be based only on a person's race, caste, sex, ancestry, place of birth, or domicile.
  • The freedom that the Constitution protects as a Fundamental Right, which is each person's right to make decisions that are important to their pursuit of happiness, is inextricably linked to the right to marry. The fundamental right guaranteed by the constitution is the freedom of religion and belief, including the choice to believe.
  • In Navjet Singh Johar and others v. Union of India in 2018, it was argued that the LGBTQ community was entitled to all constitutional rights.
  • LGBTQ individuals "are entitled, as all other citizens, to the full spectrum of Fundamental Rights, including the liberties protected by the Constitution," as well as to equal citizenship and "equal protection of the law," according to the Supreme Court.

About the Special Marriage Act (SMA)1954:

  • The Hindu Marriage Act, 1955, the Muslim Marriage Act, 1954, or the Special Marriage Act, 1954 are the personal laws under which marriages in India may be registered.
  • The judiciary has a responsibility to make sure that both the husband and wife's rights are upheld.
  • 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.
  • The Special Marriage Act, rather than personal laws, governs a marriage when it is solemnised in accordance with this law.


  • It enables the union of individuals with two various religious origins in the union of marriage.
  • It outlines the procedures for marriages where one or both partners are not Hindus, Buddhists, Jains, or Sikhs, as well as for marriages that are solemnised and registered.
  • Being a secular Act, it is crucial in releasing people from the constraints of conventional marriage.

Way Forward

  • The LGBT community needs an anti-discrimination law that gives them the freedom to forge fulfilling relationships and lives regardless of their gender identity or sexual orientation and places the responsibility for change on the state and society rather than the person.
  • There is no question that same-sex couples planning to get married must be granted the fundamental right to marry a person of their choice once members of the LGBTQ community "are entitled to the full spectrum of constitutional rights." More than a dozen nations have made same-sex unions lawful.

Read Also: Status of Indian judiciary

Source: The Indian Express

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