Same-sex marriage: As SC leaves it to Parliament, a pvt member Bill by Derek O’Brien is pending

The Bill also proposes that the word “spouse”, a gender-neutral term, be added after the words “husband and wife” in several sections of the Act.

In the statement of objects and reasons of the Bill, O’Brien, the leader of the TMC Parliamentary Party in the Rajya Sabha, says that “the Right to Life under Article 21 of the Indian Constitution includes dignity and choice of family, marriage, procreation and sexual orientation, and it inheres in every individual, including the LGBTQ community”.

Noting that homosexuality has been decriminalized, he says, “same-sex couples enjoy the right to privacy in making vital personal choices, specifically including the right to marry”. The Bill, O’Brien adds, is an attempt to make marriage laws more inclusive and equal.

Pointing out that over 30 countries have legalized same-sex marriage nationally through legislation and court decisions, he says: “Indian law should not be based on a patriarchal concept of a family and should be an inclusive space for all people.”

The Bill proposes addition of a new paragraph to Section 37 of the Special Marriage Act, which deals with the power of courts to order alimony, saying that a spouse should provide for the other’s “maintenance and support, if necessary, by a charge on that spouse’s property”, and another sub-section to deal with a situation in which one of the partners “has remarried or is not leading a chaste life”.

The Bill also seeks amendments in the Code of Criminal Procedure which deals with the maintenance of wives, children and parents. It seeks insertion of the words “spouses” and other changes like expanding the provision on maintenance of wife to say “for the maintenance of his wife or his or her spouse in the case of same-sex marriage”.

The TMC has not taken an official position on same-sex marriage.