The Indian Supreme Court is now hearing petitions to legalise same-sex marriage in India. Rather than focusing on personal laws, the court has stated that it will consider the Special Marriage Act. The Supreme Court of India is now hearing petitions to legalise same-sex marriage in the country, raising the question of whether India would follow in the footsteps of a rising number of countries that have already done so. If the decision is favourable, India will be the first Asian country to legalise marriage equality, following in the footsteps of Taiwan. DY Chandrachud, the Chief Justice of India, presides over a five-judge Constitution bench and has declared that the court will sidestep personal laws and focus on whether the right can be bestowed under the Special Marriage Act, 1954. The panel, which includes Justices S K Kaul, Ravindra Bhat, Hima Kohli, and P S Narasimha, has suggested that it only considers amending the Special Marriage Act to include the term “person” to encompass homosexual couples. The court has stated that it would not dig into personal law and will restrict its consideration to the extent necessary to handle the subject. This has been communicated to the petitioners and respondents, which include the government, religious organisations, and individuals.During the hearing, the governments Special Solicitor General, Tushar Mehta, expressed concerns about the petitions viability. The CJI stated that the courts priority would be to develop a concept of a “civil union” that would be legally recognised under the Special Marriage Act.Special Marriage ActMarriages in India can be filed under three separate laws: the Hindu Marriage Act of 1955, the Muslim Marriage Act of 1954, the Indian Christian Marriage Act of 1872 and also the Special Marriage Act of 1954. While the Hindu and Muslim Marriage Acts are religiously specific personal laws, the Special Marriage Act controls civil marriages. It applies to all Indian residents regardless of religion or beliefs. The Special Marriage Act, which Parliament passed on October 9th, 1954, allows marriages to be legally recognised by the state regardless of religion.Personal law in India includes marriage, divorce, and adoption, which are governed by religious legislation such as the Hindu Marriage Act and the Muslim Marriage Act. These laws require a spouse to change the religion of the other party prior to marriage. The Special Marriage Act, however, allows inter-faith and inter-caste couples to marry without undergoing religious conversion. The Supreme Court is currently considering whether the Special Marriage Act can be expanded to include same-sex marriage.What is a civil union, and how is it different from marriageFor same-sex couples, a civil union is a legally recognised partnership that gives them rights comparable to those of marriage. There are some differences between the two however, parental, inheritance, employment, and property rights are also included in this provision.In a similar scenario, in the US, under a civil union, couples could share in joint ownership and parental responsibilities and inherit property from one another. The main distinction was that it doesnt come under federal law. Same-sex unions were recognised as civil unions only by the states that granted them. As a result, couples could only benefit from their partnership in states that recognised their unions.How could the Special Marriage Act be amended to incorporate same-sex marriageThe Supreme Court of India is debating whether the Special Marriage Act should be extended to incorporate same-sex marriage. This Act applies to civil weddings for Indian people of any religion or faith. The court is also examining petitions challenging the terms of the Hindu Marriage Act and demanding that the Special Marriage Act be re-interpreted to include same-sex marriages. The Chief Justice of India has proposed an incremental approach and the development of a concept of civil union that the Special Marriage Act recognises.In response to concerns over marriages legislative meaning, the CJI remarked that there is no definitive definition of a man or woman. The concept is significantly more complex than categorising a person based on biological sex. The hearing is on its second day, and a decision is due shortly.
