Context: 

Kerala will soon seek to amend the Kerala Registration of Marriages (Common) Rules, 2008, to enable the registration of marriages involving transgender persons. 

More on News:

• The move comes in the wake of the absence of any reference to transgender persons in the marriage laws of any religions or the Common Rules enacted in the State, under which marriages are solemnised and registered.
• The law in Kerala states that all the marriages solemnised in the State after the com­mencement of the 2008 Rules shall be compulsorily registered, irrespective of the religion of the parties to the marriage. 

About Special Marriage Act (SMA), 1954:

• Marriages in India can be registered under the respective personal laws Hindu Marriage Act, 1955, Muslim Marriage Act, 1954, or under the Special Marriage Act, 1954.
• It is the duty of the Judiciary to ensure that the rights of both the husband and wife are protected.
• The Special Marriage Act, 1954 is an Act of the Parliament of India with provision for civil marriage for people of India and all Indian nationals in foreign countries, irrespective of religion or faith followed by either party.
• When a person solemnised marriage under this law, then the marriage is not governed by personal laws but by the Special Marriage Act.
• The Act discriminates between same ­sex couples and opposite-sex couples, denying same ­sex couples both legal rights as well as the social recognition and status that flows from marriage. 
• The Special Marriage Act of 1954 ought to apply to a marriage between any two persons, regardless of their gender identity and sexual orientation.

Supreme Court Judgments:

• In Shafin Jahan v. Asokan K.M. and others 2018 Case: The SC held that the right to marry a person of one’s choice is integral to Article 21 of the Constitution.
• In Puttaswamy Case: The SC referred to Article 16 (2) of the Indian constitution and said that there cannot be any discrimination on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them.
• In Navtej Singh Johar and others v. Union of India 2018: The SC held that members of the LGBTQ community “are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution and are entitled to equal citizenship and equal protection of law.
• 2023: Recently, the Supreme Court transfers to itself all pleas pending before HCs on same-sex marriages.

Constitutionality of Same-sex Marriages in India:

• The right to marry is not expressly recognized either as a fundamental or constitutional right under the Indian Constitution.
• Though marriage is regulated through various statutory enactments, its recognition as a fundamental right has only developed through judicial decisions of India’s Supreme Court.

Government Stands on Same-Sex Marriage: 

• Centre had said that as per the law, marriage was permissible between a “biological man” and “biological woman”.
• Same-sex marriage is not recognized or accepted in any personal or statutory laws in India.
• Same-sex relationships and living together as partners is not comparable to the traditional Indian concept of a family unit consisting of a husband, wife, and children.
• Interference with existing marriage laws could disrupt the balance of personal laws in India and potentially create anomalies in the laws governing marriages of people of the Christian or Muslim faith.

Countries dealing with same sex marriage:

Same-sex marriage is legal in 32 countries around the world. Some of these countries legalized through legislation, while others did so through judicial pronouncements.

• 2001: The Netherlands was the first country to legalise same-sex marriage by amending one line in its civil marriage law.
• 2005: South Africa’s Constitutional Court ruled in favour of Same Sex marriage which led to amendment in legislation giving legal recognition to same sex marriages
• 2007: Australia passed a law in 2007 to provide equal entitlements for same-sex couples in matters of, inter alia, social security, employment and taxation.
• 2013: In England and Wales, the Marriage (Same Sex Couples) Act 2013 enabled same-sex couples to marry in civil ceremonies or with religious rites.
• 2015: The Supreme Court of the USA in Obergefell vs Hodges case decided that the fundamental right to marry is guaranteed to same-sex couples.

News Source: The Hindu