Why in news?
A plea (or Petition) has been filed by a married same-sex couple, in which one of them is an Overseas Citizen of India and his partner a United States citizen.
The spouse is applying for Overseas Citizen of India status, but fears that his application as well as the request for the Authentication and Legalization of the marriage certification, will not be accepted.
The Delhi High Court issued a notice to the Union government on a fresh petition seeking legal recognition to all same-sex, queer or non-heterosexual marriages under the Foreign Marriage Act and the Special Marriage Act.
The Citizenship Act of 1955, does not distinguish between heterosexual, same sex and same spouses. Therefore a person married to an Overseas Citizen of India, whose marriage is registered and subsisting for two years, should be declared eligible to apply as a spouse for an Overseas Citizen of India card.
The petition has also prayed for a direction in the nature of prohibition to the Consulate General of India, New York, restraining it from declaring a spouse of an OCI applying for an OCI card to be ineligible for the same merely, on the ground that they are in a same-sex marriage.
On the subject of the Foreign Marriage Act, the plea asks for a direction to the extent the Foreign Marriage Act of 1969 excludes same-sex marriages or queer marriages, it can be declared in violation of Articles 14, and 21 of the Constitution of India.
A similar prayer is made in respect of the Special Marriage Act of 1954, stating that to the extent that the Act excludes same-sex marriages or queer marriages, it violates Articles 14, 15, 19 and 21 of the Constitution of India.
Overseas Citizen Of India
A foreign national, –
(i) Who was a citizen of India at the time of, or at any time after 26th January, 1950; or
(ii) Who was eligible to become a citizen of India on 26th January, 1950; or
(iii) Who belonged to a territory that became part of India after 15th August, 1947; or
(iv) Who is a child or a grandchild or a great grandchild of such a citizen; or
(v) Who is a minor child of such persons mentioned above; or
(vi) Who is a minor child and whose both parents are citizens of India or one of the parents is a citizen of India – is eligible for registration as OCI cardholder.
Besides, spouse of foreign origin of a citizen of India or spouse of foreign origin of an Overseas Citizen of India Cardholder and whose marriage has been registered and subsisted for a continuous period of not less than two years immediately preceding the presentation of the application is also eligible for registration as OCI cardholder.
Current situation in India
The acceptance of the institution of marriage between two individuals of the same gender is neither recognized nor accepted in any uncodified personal laws or any codified statutory laws.
The centre had said that contrary to the popular view that homosexuality was legalized by the Supreme Court in the case of Navtej Singh Johar v. Union of India, the court had only made a limited declaration to decriminalize a particular human behaviour, which was a penal offence under S.377 IPC.
Observations in Puttaswamy Judgment (A Privacy Case) and Avtej Johar case (which struck down Sec 377 IPC) do not confer a fundamental right to seek recognition of same-sex marriages.
Legality in India
The right to marry is not recognized either as a fundamental or constitutional right under the Indian Constitution.
Although marriage is regulated through various statutory enactments, its recognition as a fundamental right has only developed through judicial decisions of India’s Supreme Court.
Such declaration of law is binding on all courts throughout India under Article 141 of the Constitution.
Special Marriage Act of 1954
The Special Marriage Act of 1954
It is a law which allows to conduct marriages without going through any religious customs or rituals
Under Special Marriage Act, people from different castes or religions or states get married and the marriage is conducted by the way of registration.
The main purpose of the Act is to address Inter-religious marriages and to establish marriage as a secular institution bereft of all religious formalities, which only requires a registration.
The process of Registration
A notice of the marriage is to be given to the marriage officer of the district by one of the parties of the marriage. For this, one of the parties to the marriage has to be resided for at least 30 days immediately prior to the date on which such notice is given.
The notice is then entered in the marriage notice book and the marriage officer publishes a notice of marriage at some conspicuous place in his office.
The notice includes details of the parties like names, date of birth, age, occupation, parent’s names and details, address, pin code, identity information, phone number.
Anybody can then raise objections to the marriage on various grounds provided under the Act. If no objection is raised within the 30 day period, then marriage can be verified. If objections are raised, then the marriage officer has to inquire into the objections after which he will decide whether or not to verify the marriage.
Arguments – by those who don’t want it to be legalized
Large number of people especially in India are opposing it, they say it is unnatural, strange and immoral so it is not appreciated.
Their arguments are based on religious and natural law belief, than a political one.
Some people don’t consider it as natural because they do not produce kids.
Some are on the opinion that, why breaking God’s law by allowing gay marriage, if nature wanted same-sex people to live together, there would only be one sex rather than different sexes. Our society is based on opposite sex marriage.
If gay marriage is allowed, then why can’t everyone marry their cousin, or sisters, or their pets.
The law is specific on this. It was created to keep the society together. It goes against the laws of the land that have been used for hundreds of years and were based on the basis of the commandments.
Why it should be legalized?
There are many arguments in favour of Decriminalizing Homosexuality. Gay and lesbian rights activists from various parts of the countries were protesting for their rights and for decriminalizing the homosexual conduct.
There is a big debate in our country whether it should be legalized or not.
Some of the arguments are in favour of decriminalizing it, specifically in Indian context:-
It violates right to liberty guaranteed under Article 21 of the Indian Constitution
Criminalization of homosexual conduct is unreasonable and arbitrary.
Section 377 discriminates on the basis of sexual orientation.
Section 377 violates the enjoyment of civil laws and gay men and lesbians and leads to other adverse effects.
According to a new survey among 19,000 people in 27 countries
There needs an anti-discrimination law that empowers Lesbian, gay, bisexual, and trans genders to build productive lives and relationships irrespective of gender identity or sexual orientation.
Once the Lesbian, gay, bisexual, and trans genders are entitled to the full range of constitutional rights, it is beyond doubt that the fundamental right to marry a person of one’s own choice has to be conferred on same sex couples intending to marry.
More than two dozen countries have legalized same-sex marriage.
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