Same Sex Marriage UPSC NOTE

 Special Marriage Act (SMA), 1954 

  • SMA, 1954 is an Act of the Parliament of India that provides for a special form of marriage for people of all religions and castes. 

  • The Act is intended to provide a secular alternative to marriage under religious or personal laws.

  • The SMA is a civil law that is administered by the Marriage Registrar. 

  • The Act provides for a simple and straightforward procedure for solemnizing a marriage

  • The only requirement for marriage under the SMA is that the parties must be of marriageable age and must not be related to each other within the prohibited degrees of relationship.

Special Marriage Act (SMA), 1954 

  • The Act provides for the right to divorce, the right to maintenance, and the right to custody of children.

  • The SMA has been a popular choice for couples who wish to marry outside of their religious or personal laws. 

  • The Act has helped to promote inter-caste and inter-religious marriages in India.

Special Marriage Act (SMA), 1954 

Key provisions of the Special Marriage Act, 1954,

  • Conditions for marriage: The parties must be of marriageable age (18 years for men and 21 years for women) and must not be related to each other within the prohibited degrees of relationship.

  • Notice of intended marriage: The parties must give notice of their intended marriage to the (Marriage Registrar) in the district in which at least one of the parties resides.

  • Objections to marriage: Any person who has any objection to the marriage may file an objection

Special Marriage Act (SMA), 1954 

  • Solemnization of marriage: If there are no objections to the marriage, The marriage ceremony must be performed in the presence of three witnesses.

  • Certificate of marriage: will issue a certificate of marriage to the parties.

Top Court rule - Marriage a fundamental right?

  • The Supreme Court of India has not explicitly ruled that marriage is a fundamental right

  • The Court has made a number of pronouncements that have been interpreted as recognizing the right to marry as a fundamental right.

  • In the case of Lata Singh v. State of Uttar Pradesh (2006), the Court held that the right to choose a life partner is a fundamental right under Article 21 .

  • The Court stated that "the freedom to marry a person of one's choice is an integral part of the right to life and personal liberty."

  • In the case of Navtej Singh Johar v. Union of India (2018), the Court struck down Section 377 of the Indian Penal Code, which criminalized consensual sexual intercourse between adults of the same sex. These pronouncements by the Supreme Court have been interpreted as recognizing the right to marry as a fundamental right. 

  • These pronouncements by the Supreme Court have been interpreted as recognizing the right to marry as a fundamental right. 

  • On Same-Sex Marriage Case (2023), the Supreme Court declined to rule on the question of whether same-sex marriage is a fundamental right. 

  • The Court held that the issue of same-sex marriage is a matter for the legislature to decide. 

  • The Court also made a number of observations that suggest that the Court is sympathetic to the arguments in favor of same-sex marriage.

Why did SC refuse to read down the SMA?

  • The Court felt that if the SMA was held void for excluding same-sex couples.

  •  It would mean going back to a time when two persons of different castes and religions could not marry. 

  • SMA read down will leads ,venturing into the realm of the legislature. 

  • The  changes to  be brought into the SMA is for Parliament to determine. 

  • The Court in the exercise of the power of judicial review must steer clear of matters.

Will the legislature be open to the idea?

  • The government held that it was against same-sex marriage

  • It had also pointed out that judicial intervention would cause “complete havoc with the delicate balance of personal laws.” 

  • Activists and rights lawyers are not convinced whether the judiciary lobbing the issue back to the legislature will lead to any change. 

  • The Court has said this injustice and inequity results in discrimination.

Will the legislature be open to the idea?

  • Setting up a committee chaired by the Cabinet Secretary for the purpose of defining the scope of entitlements of queer couples .



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Learnerz IAS | Concept oriented UPSC Classes in Malayalam: Same Sex Marriage UPSC NOTE
Same Sex Marriage UPSC NOTE
Learnerz IAS | Concept oriented UPSC Classes in Malayalam
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