Same-Sex Marriage Case: Gay couple knocks on Supreme Court’s door, summons government: Same-sex relationship is allowed in India, not marriage

When a man marries a man or a woman marries a woman, it is called a same sex-marriage. Since 2018, same-sex relationships are allowed in India, but same-sex marriage is not. In such a situation, many gay couples have filed a petition in the Supreme Court for recognition of same-sex marriage.

These petitions were heard in the Supreme Court on Friday, November 25. Many gay couples, including Partha Firoz Mehrotra and Uday Raj Anand, demanded inclusion of same-sex marriage in the Special Marriage Act-1954.

‘Parth Firoz Mehrotra’ and ‘Uday Raj Anand’ met 17 years ago. After this both of them became friends and then fell in love. Since then both live together as a gay couple. Both are also raising children together. However, the law does not give them the right to adopt children as same-sex marriage is not legal in India. In such a situation, he approached the Supreme Court to get his marriage recognized.

In the Supreme Court, a bench of Chief Justice of India DY Chandrachud and Justice Hima Kohli, after hearing the matter, has sought a response from the Government of India regarding same-sex marriage within 4 weeks.

In fact, 9 petitions have also been filed in Delhi High Court and Kerala High Court for recognition of same-sex marriage under Special Marriage Act, Foreign Marriage Act and Hindu Marriage Act.

Same-Sex Couple face the lots of difficulties due to non-recognition of same-sex marriage in availing  basic rights like gratuity, adoption, surrogacy. It is also difficult to open a joint account for them.  Section 4 of the Special Marriage Act allows any two citizens to marry but sub section (c)  allows only men and women to marry. In such a situation, the law should be made gender neutral by recognizing same-sex marriage.

In India, before 2018, under Section-377 of the IPC, sexual relations i.e. physical relations between boy and boy came under the ambit of crime. A five-judge bench of the Supreme Court struck down this legal provision in September 2018. Since then, a police case cannot be registered against homosexual relations in India. But the LGBTQ community is still trying to make gay marriage legal.

There are many types of laws for the validity of marriage in different religions in India. For people of Hindu, Jain, Buddhist and Sikh religion, there is Hindu Marriage Act-1955 whereas for Christians, there is Christian Marriage Act-1872. Similarly, Muslims marry under their own religious law, the Muslim Personal Law.

According to all these laws, marriage can only take place between a man and a woman. The Supreme Court had the constitutional power to decriminalize same-sex relationships. Accordingly, the 2018 verdict came, but the law would have to be changed to recognize same-sex marriage. This is possible only from the government and the parliament.

On 1 April 2022, NCP MP Supriya Sule introduced a private member’s bill in the Lok Sabha, which aimed to legalize the marriage of two people of the same sex under the Special Marriage Act. This bill could not pass in the house.

Actually, a private member’s bill is a bill that is introduced by any MP who is not a minister. Such bills rarely get passed. So far only 14 such bills have been passed, out of which 6 bills were passed in 1956. Except this one bill brought by Supriya Sule, no other bills have been introduced in the Parliament regarding same-sex marriage.

Talking about the legal status of same-sex marriage, there are different countries around the world-

First: The country that has allowed same-sex marriage.

Second: Countries where same-sex relationships are allowed but same-sex marriage is not allowed.

Third: The country where both gay relations and gay marriage are banned.

According to The Guardian report, homosexuality is not considered a crime in 120 countries of the world, but only 32 countries currently allow marriage in the same sex. This means that there are 88 countries in the world where same-sex relationships are allowed but same-sex marriage is not. India is also a country in this.

In 2001, the Netherlands was the first country in the world to legalize same-sex marriage. Apart from this, there are 13 countries in the world, including Yemen, Iran, where leaving aside marriage in same sex, the death penalty is given even after having a homosexual relationship.


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