While the legality of same-sex marriage is being heard, the more complex legal issues are whether a divorce be allowed once the marriage between man-man (MM) or woman-woman (WW) is solemnised; would a woman in a same-sex marriage be allowed to apply for alimony under section 36 of Indian Divorce Act, and will a partner (man/woman) in the same-sex marriage be compelled to pay maintenance to the other partner (man/woman) they had married but whom he is divorcing and her children?
The Supreme Court Constitution bench would start hearing the petitions filed seeking the Apex Court’s intervention using its plenary powers under article 142 of the Constitution to do complete justice by travelling even outside the laws made by the Parliament or state assemblies to declare marriage between two persons belonging to the same sex as legit and socially acceptable.
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While the Court will decide one way or the other or direct the Parliament to make suitable laws, the following imponderables are flagged hereunder for everyone’s consideration to trigger a larger debate on them.
1. Would divorce be allowed once the marriage between man-man (MM) or woman-woman (WW) is solemnised given the fact that divorce is an integral feature of marriage?
2. Would a woman in a same-sex marriage be allowed to apply for alimony under section 36 of Indian Divorce Act, 1869 pending disposal of the application for divorce?
3. Will a man in the same-sex marriage be compelled to pay maintenance to the woman he had married but whom he is divorcing and her children?
4. Would intersex be allowed to marry each other and later on divorce?
5. Would the provisions of Domestic Violence Act apply to the same sex marriage more particularly to WW category given the fact that it targets the husband and his family?
6. Would the charge of adultery stick in a WW marriage as well as in a MM marriage?
7. Will the provisions of income tax law that talk about transfer to spouse of properties by the husband or wife as the case may be without consideration apply to same-sex marriage as well?
8. Will the discount or rebate in stamp duty or property tax reserved for women apply to same-sex marriage especially MM variety?
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9. Would schemes like Pradhan Mantri Awas Yojana under which houses for EWS category is built in the name of the wife be available to same-sex marriage particularly of the MM variety?
10. Will the property left behind by a Hindu dying intestate be available to the widow or widower as the case may be exclusively for inheritance?
11. According to the provisions of the Portuguese Civil Code, whenever the bride and groom do not determine which property regime they choose to apply, Limited Community of Property shall apply. In the Limited Community of Property regime, the assets acquired after the marriage will be marital property. The assets that each of the spouses already owns at the time of marriage shall remain his/her sole property. Will this regime continue to apply to same-sex couples in Goa?
12. Where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother. And where an adoption has been made with the consent of more than one wife, the senior most in marriage among them shall be deemed to be the adoptive mother and the others to be step-mothers. How will this provision be made operative in a same-sex marriage especially of the MM hue?
13. Will the putative legislation on same-sex marriage hold sway cutting across religions in the first sign of uniform civil code? Muslims, as it is, have their unique civil code that includes marriages.
The above list of imponderables is by no means comprehensive nor exhaustive. They are merely illustrative. Perhaps some of the problems envisaged could be resolved if the legislation made to legalize same-sex marriage mandates that a couple of the same sex locked in a marriage will have to make a choice at the very beginning----who shall don the robes of a husband and who that of a wife.
(Edited by : C H Unnikrishnan)
First Published: Mar 16, 2023 1:23 PM IST
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