MC Explains | Same-sex marriage and the 68-yr-old law that’s being hotly debated

The Supreme Court is hearing a bunch of petitions to legalise same-sex marriages in India.

The petitioners seeking legal validation of same-sex marriages have urged the Supreme Court to interpret the Special Marriage Act (SMA), 1954 as a legislation regarding marriage with a "spouse" instead of "man and woman".

The petitioners have also tabled their objections regarding the provision of the SMA that requires a 30-day notice to be given to the marriage officer about the intended marriage. The officer then notifies the public about the intention of the parties and seeks objections, if any.

Solicitor General Tushar Mehta, who appeared for the government, argued that the lawmakers who drafted SMA contemplated marriage between a biological male and a biological female. This led to Chief Justice of India  (CJI) DY Chandrachud telling Mehta that the concept of gender is complex and a person’s genitals don’t define their gender.

Moneycontrol explains what the SMA is and why the petitioners are seeking a reinterpretation of this law.

What is the Special Marriage Act?

In India, personal laws depend on the religion a person follows. For instance, the marriage of Hindus, Christians, and Parsis is governed by the Hindu Marriage Act, the Indian Christian Marriage Act, and the Parsi Marriage Act, respectively. Muslims follow the Muslim Personal Law (Shariat) Application Act, 1937.

The same way, other aspects of one's personal life such as divorce, inheritance, and adoption are governed by laws such as the Hindu Succession Act, the Indian Succession Act and the Hindu Adoption and Maintenance Act.

However, there were no laws governing inter-faith marriages, nor were there any laws granting legal sanctity to civil marriages (marriage conducted by a government official). Thus, the SMA was introduced in 1954 to govern civil marriages between Indian nationals — in India and abroad — regardless of religion.

Same-sex marriage

The SMA extends to all Indian states as well as Indian nationals living in other countries, and applies to all individuals irrespective of religion, as a result of which anybody can marry under this Act. Persons belonging to the same faith can also marry under the Special Marriage Act, should they wish to do so.

Who is eligible to marry under the Special Marriage Act?

To marry under the provisions of the SMA, the act states that:

1. Neither of the parties must have a living spouse. If either party has been married previously, it is essential that the earlier marriage is dissolved legally before applying to marry under the SMA.

2. Both parties must be in a position to grant free and full consent to the marriage.

3. At the time of applying for marriage, the female should be at least 18 years old, and the male must have completed 21 years of age.

4. The Act prohibits the solemnisation of marriage if the parties are within the degree of prohibited relationships as per the customs of any of the parties. The degrees of prohibited relationships may vary. For instance, in Hindu law marriage between brother and sister, uncle and niece, aunt and nephew, or the children of siblings is prohibited.

How is a marriage solemnised?

The parties intending to marry must give a notice with the details of the parties and their intention to marry to a ‘marriage officer,’ who is typically a registrar or a sub-registrar. They must also show that at least one of them have been residing in the district (that falls under the registrar’s jurisdiction) for 30 days.

The marriage officer will then put up this notice in the registrar’s office to check if there are any objections to the marriage from anyone. If no objections are received within 30 days, the marriage is solemnised in a civil ceremony at the registrar’s office.

Why is the SMA in focus regarding same-sex marriages?

It has been contended that since the SMA is a secular legislation providing for marriage between persons belonging to any religion, a reinterpretation of the law will not amount to disturbing Hindu, Muslim, or Parsi personal laws. When personal laws are not disturbed, religious practices contemplated under these laws may not require any change to accommodate same-sex marriages.

According to the petitioners, the 30-day notice period clause violates the fundamental right of a person to marry. They have argued that these notices are essentially an invasion of the privacy of couples who wish to marry. The petitioners contend that the requirement of the notice is an archaic and retrograde provision that has its origins in a three-century-old British law.

Whether the SC agrees with these arguments or not will be known once the judgment comes out, most likely after the summer break.