As I write this post, the hearing on same-sex marriage is being heard in the Supreme Court of India. I am of the understanding that the petitioners are seeking an amendment under the Special Marriage Act, to render it gender-neutral and include which means the parties will be required to declare their biological gender and the gender assumed for the sake of the marriage before the Registering authority and cannot change it due to altered circumstances or for any other reason. It is not mere registration of marriage, there is more to a marriage than what meets the eye and dimensions Both parties are invested in one another and even if any one form of investment is lost, a cascade of problems can arise with collateral damage. Law should aim to protect the necessary investments and endeavour to internalise the legal externalities in aspects relating to marriage, adoption, parentage, divorce and inheritance.
The grounds for divorce needs to include a claim of change in declaration of one’s gender by either party after registration of the marriage as a same-sex marriage. This is for those who have medically altered their external attributes of a gender to suit their mind set. Rules under the prevalent laws of adoption purporting to adoption of children by parties of the same sex need to be adequately amended with rules of custody remaining the same in the event of separation or divorce. Laws of inheritance need to be also amended to protect the rights of the parties. If either party is the biological mother or biological father of a child there should be no automatic devolution of property to the child leaving out the same-sex spouse of the parent. Provisions relating to inheritance of property shall provide for the legal complexity if either party has died intestate and existing laws of inheritance and declaration of legal heirs shall not prevail or override the rights of a spouse belonging to the same sex.
It can be a wedding of two people who wish to share their lives but marriage between two people of the same-sex can be a complex issue to tackle if adoption rights and inheritance rights of the parties are not guaranteed legal protection. A special and overarching legislation needs to be passed by the parliament to protect the interests of those who wish to enter into such a relationship that needs to circumvent religious scrutiny. A mere amendment under the Special Marriage Act may not be sufficient.