While the legality of same-sex marriage is being negotiated, the more complex legal issues are whether divorce is permissible once the marriage has been contracted between male and male (MM) or female and female (WW); would a woman in a same sex marriage be allowed to seek maintenance under Section 36 of the Indian Divorce Act and will one partner (male/female) in the same sex marriage be required to pay maintenance to the other partner (male/female)? wife) they had married, but who he is divorcing and their children?
The Constitutional Chamber of the Supreme Court would begin hearing petitions tabled seeking the intervention of the Apex Court, using its powers under Article 142 of the Constitution, to give full justice, even outside of those mandated by Parliament or the Legislation enacted by state assemblies to declare marriage between two people who belong to the same sex as legitimate and socially acceptable.
While the Court of Justice will decide one way or another, or direct Parliament to enact appropriate legislation, the following uncertainties are flagged below for everyone’s consideration, in order to spark a broader debate about them.
1. Given that divorce is an integral part of marriage, would divorce be permissible once marriage is consummated between man and man (MM) or between woman and woman (WW)?
2. Would a woman in a same-sex marriage be permitted to apply for alimony under Section 36 of the Indian Divorce Act 1869 until the divorce application is settled?
3. Will a man in a same-sex marriage have to pay maintenance to the woman he married or is divorcing and her children?
4. Can intersex people marry and later divorce?
5. Would the provisions of the Domestic Violence Act apply to same-sex marriages, particularly the WW category given that it targets the husband and his family?
6. Would the charge of adultery exist in both a WW marriage and a MM marriage?
7. Will the provisions of the Income Tax Act, which speak of the gratuitous transfer of property from husband or wife to spouse, also apply to same-sex marriages?
8. Does the stamp duty or wealth tax discount or rebate reserved for women apply to same-sex marriages, particularly the MM variant?
9. Would programs like Pradhan Mantri Awas Yojana, where houses are built for the EWS category in the woman’s name, be available for same sex marriages, especially the MM variant?
10. Will the assets left by a Hindu deceased be available to the widow or widower for inheritance only?
11. According to the provisions of the Portuguese Civil Code, whenever the bride and groom do not determine which property regime they wish to apply, limited community property applies. In the regime of limited community of property, assets acquired after marriage are marital property. Any property that each spouse already owns at the time of marriage remains their sole property. Will this regulation continue to apply to same sex couples in Goa?
12. If a Hindu who has a living wife adopts a child, she is considered the adoptive mother. And if an adoption has taken place with the consent of more than one wife, the eldest of them is considered the adoptive mother and the others are considered stepmothers. How does this provision take effect in a same-sex marriage, especially in the MM color?
13. Will the supposed legislation on same-sex marriage prevail across religious borders at the first sign of a unified civil code? Muslims anyway have their unique civil code that includes marriages.
The above list of uncertainties is by no means complete or exhaustive. They are for illustrative purposes only. Perhaps some of the envisioned problems could be solved if legislation legalizing same-sex marriages mandated that a same-sex couple locked in a marriage must make a choice from the outset — who should don the robes of a man and who should wear the one Woman.
(Edited by: CH Unnikrishnan)
Initial Release: March 16, 2023 1:23 PM IST