Same-Sex Marriages in India

Centre Opposes Same-Sex Marriage

The Centre has opposed same-sex marriage in the Supreme Court, stating that marriage between a biological man and woman is a holy union, a sacrament, and a Zanskar in India.

• A Bench led by the Chief Justice of India refers petitions to legally recognise same-sex marriages to a Constitution Bench of five judges of the Supreme Court

The Union Statement

• The government argued that the Court had only decriminalised sexual intercourse between same-sex persons in its 2018 judgement in Navtej Singh Johar v. Union of India, and not legitimised this “conduct”.
  • The court, while decriminalising homosexuality, did not accept same-sex marriage as part of the fundamental right to life and dignity under Article 21 of the Constitution.
• The government argues that marriage depends on customs, rituals, practices, cultural ethos, and societal values.
  • Same-sex marriage cannot be compared to a man and woman living as a family with children born out of the union.
• The Parliament has designed and framed the marriage laws in the country to recognise only the union of a man and a woman.
  • Registration of marriage of same-sex persons would result in a violation of existing personal as well as codified law provisions.
    • The Special Marriage Act of 1954 provides a civil form of marriage for couples who cannot marry under their personal law.
• The government argued that any deviation from this norm can only be made through the legislature, and not the Supreme Court.

Arguments in Favour of Same-Sex Marriage

• Equal Rights and Protection Under the Law: All individuals, regardless of their sexual orientation, have the right to marry and form a family.
  • Same-sex couples should have the same legal rights and protections as opposite-sex couples.
  • Non-recognition of same-sex marriage amounted to discrimination that struck at the root of the dignity and self-fulfilment of LBTQIA+ couples.
• Strengthening Families and Communities: Marriage provides social and economic benefits to couples and their families. Allowing same-sex couples to marry strengthens families and communities by promoting stability and security.
• Global Acceptance: Same-sex marriage is legal in many countries around the world, and denying this right to individuals in a democratic society goes against global principles.
  • In 133 countries homosexuality was decriminalised, but only in 32 of them same-sex marriage is legal.

Arguments Against Same-Sex Marriage

• Religious and Cultural Beliefs: Many religious and cultural groups believe that marriage should only be between a man and a woman.
  • They argue that changing the traditional definition of marriage would go against the fundamental principles of their beliefs and values.
• Procreation: Some people argue that the primary purpose of marriage is procreation, and that same-sex couples cannot have biological children.
  • Therefore, they believe that same-sex marriage should not be allowed because it goes against the natural order of things.
• Legal issues: There are concerns that allowing same-sex marriage will create legal problems, such as issues with inheritance, tax, and property rights.
  • Some people argue that it would be too difficult to change all the laws and regulations to accommodate same-sex marriage.

Conclusion

• Cultural Sensitivity: India is a culturally diverse country with different religious and societal values.
  • Any legislative or judicial decision on same-sex marriage must consider the cultural sensitivities of different communities while also ensuring that the fundamental rights of individuals are protected.
• Social Acceptance and Education: India still has a long way to go in terms of social acceptance of the LGBTQ+ community.
  • Education and awareness campaigns should be developed to promote acceptance and understanding of heterosexuality then same-sex marriages should be considered on the table.
• International Obligations: India is a signatory to various international human rights treaties and conventions, which require it to protect the rights of all individuals, including the LGBTQ+ community.
  • As many other countries such as Canada, the United States, and Australia have recognized same-sex marriage, it is imperative that India legalizes it to ensure equal rights and opportunities for all individuals regardless of their sexual orientation.