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Same-Sex Marriage

We cannot disagree that the most debatable topic in most of the countries, especially in India is that of the same sex marriage. There has always been fuss about the same, around the nation as there are some people, who are in support and there are some people who oppose the same sex marriage on the grounds of religious and social acceptability. Now it all started when the section 377 was decriminalized and was held unconstitutional by the Supreme court of India.

Before this, the people who were used to engage in the carnal intercourse, at their own will, against the order of nature were punished, in simpler words, the people who entered into sexual intercourse, with the person of their own gender, willingly, were punished. So clearly, the Supreme court of India decriminalized the above mentioned section which talked only about sexual intercourse with the same sex and not marriage with the same sex, and therefore this decision has led to various petitions filed by different groups and individuals asking for giving the marital rights to same sex couples because as having sexual intercourse with the same gender is not considered as an offence anymore, then why giving marital rights to the same sex couple is an issue.

In today's world, many countries have accepted the same sex marriage, but this remains a sensitive issue in India, due to the various prolonged traditional and social notion of families. As, in India there is not uniform code which deals with marriage, almost all religious communities have their own personal laws dealing with the same, like that of Hindu Marriage Act, Parsi Marriage Act etc., similarly, inter religion marriages are dealt by The Special Marriage Act and that of inter country marriages are dealt by The Foreign Marriage Act. And all the above-mentioned acts promote heterosexual marriages and not homogeneous marriages.

And the same is held by the court in various cases. So, in short heterogenous marriages are not acceptable in India as per the current laws. However, there is possibility, that laws can change, amendments can be made in favor of same sex marriages but again the acceptance of the same among various social and religious belief is in question, as the bill can only be passed with respect to same sex marriages when there is enough support.

Now as mentioned above, various other nations have accepted the same sex marriage, now the question arises that will India give legal recognition to marriages of homogenous couple, that are solemnized abroad.

In order to escape the ban on same sex marriage, the homogeneous couple of India tend to go abroad and solemnize their marriage in jurisdictions of the countries that allow homogenous marriages and India does not recognize such type of marriages neither legally nor socially. Our legal system provides that the marriage of people will be governed by their religion-based Acts and provisions.

For example, if two Hindu people will marry each other than the marriage will be governed by Hindu Marriage Act even when they marry each other abroad or overseas, provided that the couple had Indian domicile at the time of marriage and as neither of the Acts deals with same sex marriage, the marriage will not be recognized by the Indian legal system.

Further, the Foreign marriage act has a provision under which "Central Government may declare that marriages celebrated under the law in force in such foreign country shall be recognized by courts in India as valid."[1], but as the above-mentioned act does not deal with same sex marriages so, in any case it will not be recognized.

Let us understand other legalities with the help of a case law, dated back in 1941.

In the case of Noor Jahan Begum v. Eugene Tiscenko[2], which is the only foreign heterosexual case, dealt by Indian courts, in which the plaintiff solemnized her marriage in Poland, and lived in Rome, but later she moved to India, and started living in Calcutta. The validity of the marriage was in question, and in the same regard the court held that the formal aspects of marriage are governed by the principle of lex loci which means the place where marriage was performed, and the rights involved such as dissolution in marriage are governed by the law of domicile, which means the law of the country in which for the time being they were domiciled; [3]

And hence, in any scenario, the same sex marriages (either solemnized within the boundaries of India or outside the boundaries of India) are not permitted and recognized in India and the state is not bound to provide them with any marital status.

Let us now discuss the above issue in the light of the recent case of Vaibhav Jain & Anr. Vs. Union of India & Anr.[4]
In the above case, two separate petitions were filed by two same sex couples, and the same was entertained by the Delhi court through virtual hearing. One petition was filed by two women seeking to be able to perform homogenous marriage in India under Special Marriage Act and the other was filed by two men in order to seek registration of their marriage in USA, as the same was being denied under The Foreign Marriage Act. The court listed both the petitions simultaneously.

The court said that as the concept of marriage originates from the customary laws and they do not recognize same sex marriage, and the word marriage is defined nowhere, neither in The Special Marriage Act nor in The Foreign Marriage Act. Following this, the court mentioned that once same sex marriage is recognized under customary laws, it would be recognized under The Special Marriage Act and The Foreign Marriage Act also.

The court further mentioned that the Special Marriage Act, deals with the inter caste or inter faith marriages, and was only enacted because there were no customs for the same, in respond to this the petitioners said that they were not seeking relief from such grounds, but under laws like that of SMA and FMA, they mentioned that by not allowing the women to marry are hindering their rights like that of family insurance etc., and thus violates article 21 of the constitution.

Similarly, the men were denied the registration of their marriage by Indian consulate as they were of the same sex, violating their rights mentioned under article 14, 15,19 and 20 which was held guaranteed to LGBTQ in Navtej Singh case. And thus, the petitioners demanded to declare the SMA unconstitutional as it does not allow same sex marriage, but the High court took Centre's stand against them as there is no provision of same sex marriage until now in India.

So as of now, we have understood that there is no chance of recognition of same sex marriage, solemnized abroad. But the laws are bound to change, amendments are subject to happen, the decriminalization of section 377 was indeed the first indication towards it. Hopefully, in coming years India will be one of the countries to accept homogenous marriages socially and religiously.

End-Notes:

  1. Foreign Marriage Act, 1969, s. 23.
  2. Noor Jahan Begum v. Eugene Tiscenko, AIR 1941 Cal. 582.
  3. Ibid
  4. Vaibhav Jain & Anr. v. Union of India & Anr., W.P. (C) 7657/2020.

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