New Delhi, May 9.
The Supreme Court on Tuesday hinted at making a directive principle-type declaration granting marriage equality to all, days after it gave up the idea of moulding the Special Marriage Act to allow LGBT couples marry, adopt and have families.
This would force the government to bring in a law to deal with the issue. The top court said as much at close of proceedings today on multiple pleas seeking marriage equality for the LGBT community. Further arguments will continue tomorrow.
The Indian government has so far promised the LGBT community everything short of according legal recognition to same sex marriages.
It has even set up a committee chaired by the cabinet secretary to iron out issues such as facilitating bank accounts and insurance policies etc in the name of a same sex partner.
The government while insisting that this was an area in which the legislature must make laws in accordance with social norms, has left its promises to address the issue open-ended.
Any court declaration would possibly on the lines of what the Nepal Supreme Court recently did.
The Nepal Supreme Court recently directed the government to bring in a law to recognise same sex marriages while allowing a same sex couple to get a passport to enter the country.
The Indian Supreme Court has effectively given up the idea of allowing same sex couples to register their marriage under the Special Marriage Act (which is dubbed as the mini uniform civil code) after it ran into opposition on the issue.
The Special Marriage Act, those claiming equal marriage rights, said ought to be changed with the words husband and wife being replaced with the word spouse. This would have allowed same sex couples to register for such marriages.
The government, however, raised the spectre of any such move interfering with over 150 odd laws as also personal laws across religions.
Any Hindu marrying under the Act remains a Hindu but his or ties with the Hindu Undivided Family is torn asunder. This prevents any children from inheriting ancestral property.
Ancestral property could though be gifted to such children. All such marriages have to be accompanied by oaths that the couples are not related to each other etc. i.e. fulfil other conditions required for the Act.
Separation and divorce of those who choose to marry inter-caste or inter-faith while retaining their original faith under the Special Marriage Act are decided under the provisions of the Act.
Succession matters are also governed by secular laws such as the Indian Succession Act and Indian Adoption Act. Any marital violence etc can be addressed by the Indian Penal Code provisions.
The government though claimed that any such move would interfere with hundreds of laws and would be contrary to personal laws of many communities which still hold sway unless they have been specifically been struck down.
This argument suffers from the fallacy of trying to pigeon-hole citizens into personal laws when they specifically choose to give up such ties with their communities under the Act.
In fact, this has long been considered to be the Achilles Heel of the Act, something that has to be corrected before this is used as a frame for a uniform civil code. The Law Commission says that that is why the SMA has few takers.
