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Love Is Love: A Journey Through Same-Sex Marriage Legalization

As we know, the marriage is one of the Part of life which is solemnised between the one male and one female to growing and changing as a mature person. Which means two persons live a life but two souls. Marriage is a bond of responsibilities, faith and love to each other. But this is all happens by their own choices that they want to marry with someone else to whom they love or they don't want to marry.

According to Hindu law marriage is a sacred tie and seven vows keeping the holy pyre as the witness and follow their rules, customs and beliefs. The Hindu marriage act 1955 does not specifically define under Hindu marriage act but section 5.6 and 7 talk about a legal marriage between male and female(parties) And according to section 3 of Muslim marriage registration act 1981 shall be registered their marriage.

Here, we are discussing about same sex marriage which is solemnised between the two people of having same sex, male to male and female to female from 2023 same sex marriage is legally perfomed in almost 34 countries. The very first same sex marriage was legally held in Netherland in 2000, the first same sex couple to be married legally in modern period were Michael McConnell and jack baker in 1971 in the united nation. But later social science indicated the exclusion of same sex couple to married and discriminates against gay and lesbian peoples, they don't want to accept the relationship between the same sex couple. later on, Homosexuality is a very big question against the society and against the culture.

The people who belongs the LGBTQ+ community demands their right to legalization from society and judiciary. In January 2023, supreme court heard the petitions filed by gay couples seeking under the special marriage act on 6th of January. Petitioners wanted to be legal same sex marriage in India also under special marriage act. Basically, special marriage act (SMA)s 1954 is an act of the parliament of India with provisions for civil marriage for people, irrespective of religion or faith followed by either party. The lead petition filed by the Supriyo Chakraborty and Abhay dang, two gay men was living in Hyderabad, states that the right to marry a person of one's choice should extend to LGBTQ+ citizens, as well.

They both had a commencement ceremony in December 2021 attended by their parents, family and friends. The second petition has been filed by gay couple Parth Phiroze Mehrotra and Uday Raj Contending that non-recognition of same sex marriage is violative of right to quality under article 14 and right to life under article 21 of the constitution. The couple Have argued that the supreme court of India has always protected the right of inter-caste and inter-faith couples to marry a person of their choice. Same sex marriage is a frequency of this constitutional hike. Couples have submitted the special marriage act is ultra vires the constitution of India to the extent, It's discrimination between same sex couples and opposite sex couples denying same sex couples both legal rights as well the social. Recognition and status that flow from marriage.

In the case of Navtej Singh Johar the supreme court has held that LGBTQ+ persons enjoy the right to equality, dignity and privacy guaranteed by the constitution on the same footing as all other citizens. LGBTQ+ community entitled to all constitutional rights (Navjet Singh Johar and others v. Union of India 2018). The SC held that members of the LGBTQ community "are entitled, as all other citizen, to the full range of constitutional right including the liberties protected by the constitution" and are entitled to equal citizenship and "equal protected to law."

Petitioner have also said that this has resulted in a situation where both Petitioner cannot have a legal relationship of parent and child with both their children. Marriage as a fundamental right (Shafin Jahan v. Asokan K.M. and others 2018) The SC held that the right to marry a person of one's choice is integral to article 21 of the constitution.

The plea states that the right to marry a person of one's choice is a fundamental right under constitution of India to each person. But does not presently allow members of LGBTQ+ community to marry the person of their choice. And this is violative of the fundamental rights under Part III of the constitution including articles 14, 15, 19(1)(A) and 21, they contend.

A bench of five judges including chief justice of India DY Chandrachud and justice PS Narasimha said that plea raise issue concerning rights which are constitutional in nature and hence, would have to be heard by a constitutional bench.

Later on argue on the same sex marriage between bench and central government the government refuse to accept the concept of same sex marriage but, CJI Chandrachud remark. "The notion of biological man and biological woman is not absolute. There is no absolute concept of man or an absolute concept of woman. Man is not a definition of what your genitals are. It's far more complex. So even when the special marriage act says man and woman. The very notion of man and a notion of a woman is not an absolute based on what genitals have. "That is not a notion. It is restricted to the genitals SG applied. The notion and definition of gender is not limited to a person's genitals, The Supreme Court remarked.

So far, what new is the central government is in favour of same sex marriage, solicitor general Tushar Mehta informed the court that central government has agreed to grant certain rights to same sex couples. Also during the proceedings, central government issued the letter to all states on 18th April 2023 to know their views on legalisation of same sex marriage three of them were not in the favour Andhra Pradesh, Assam and Rajasthan that same sax marriage can create imbalance in society.

Later, the latest development of the history is the judgement has been reserved that it will be landmark judgement on same sex marriage if same sex marriage will legalisation that would be huge revolution in history itself, the important thing in it there are twenty petitions before the bench, filed by various same sex couples, transgender persons and LGBTQ+ activists challenging the provision of the special marriage act 1954, Hindu marriage act 1955 and the foreign marriage act 1969 to the extent these legislations do not recognise non heterosexual marriages.

During the course of the hearing, the bench expressed that it will confine the issue only to the Special Marriage Act and will not touch personal laws. The centre also said that such an interpretation will disrupt various other legislation which deals with adoption, maintenance, surrogacy, succession, divorce etc. petitioners, central government and benches of five judges represented their views on same sex marriage and hearing has been over.

Now all we need to see will what will be the judgement of supreme court in the case of same sex marriage, will SC inclined the central government or give their right to same sex couples or legalise the same sex marriage in India under Special Marriage Act 1954.

Written By: Nandita Sharma, B.A.Ll.B 5th Year

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