What is Special Marriage Act, mentioned several times during hearing of same sex marriage in SC

Throughout the hearing of pleas seeking legal validity of same-sex marriage on Tuesday, mentions of the Special Marriage Act cropped up several times. With the Supreme Court refusing to legalise same-sex marriage, the Constitution Bench led by Chief Justice of India DY Chandrachud mentioned that the court cannot strike down the provisions of the Special Marriage Act or read words differently.

The judgement came after the hearing of petitions seeking the inclusion of marriage equality for LGBTQIA+ persons (including same-sex marriage) into the Special Marriage Act, 1954. Apart from CJI, the Constitution Bench comprised Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha. 

Leaving it up to the government to give legal status to marriage between same-sex people, the CJI noted, “If the Special Marriage Act (SMA) is struck down, it will take the country to the pre-Independence era. If the court takes the second approach and reads words into the SMA, it will be taking up the role of legislature. The court is not equipped to undertake such an exercise of reading meaning into the statute.”

All about Special Marriage Act, 1954

The Special Marriage Act of 1954 of the Parliament of India provides for civil marriage for all people in India and Indian nationals in foreign countries, regardless of the religion or faith followed by either party. The Special Marriage Act, originally proposed during the late 19th century, encompasses the entirety of India except for the state of Jammu and Kashmir. Additionally, it applies to citizens of India who are domiciled in the territories covered by this Act, even if they reside in the state of Jammu and Kashmir.

Marriage under the Special Marriage Act of 1954 facilitates individuals from two different religious backgrounds to unite in matrimony. This Act outlines the process for both the solemnization and registration of marriages in cases where either the husband or wife, or both, do not adhere to Hindu, Buddhist, Jain, or Sikh faiths. It's crucial to note that all marriages in India can be registered under the respective personal laws, including the Hindu Marriage Act, of 1955, the Muslim Marriage Act of 1954, or the Special Marriage Act of 1954, depending on the religious affiliations of the individuals involved. 

Notably, the Special Marriage Act doesn't hold valid marriage between persons of the same sex. On multiple occasions, the petitioners contended that the exclusion of same-sex marriage from the SMA violates Articles 14 and 15 of the Constitution which grants the right to equality to every Indian citizenry.