Same-sex marriage “Invalid” in India: Supreme Court

Same-sex marriage “Invalid” in India: Supreme Court

Important for Prelims Exam

Section 377 of Homosexuality, Special Marriage Act, 1954, LGBTQ+, Articles 14,15, 21 of the ConstitutionI

Important for Mains Exam

GS-1,2: Arguments for and against gay marriage, impact of gay marriage on the social and political scenario of India, challenges faced by gay couples.

October 18, 2023

Why in news:

Recently the Supreme Court has given the much awaited and important decision on same-sex marriage, according to the Supreme Court, same-sex couples have no fundamental right to marry.

key points:

  • On October 17, 2023, a five-judge bench of the Supreme Court headed by Chief Justice of India DY Chandrachud unanimously ruled against legalizing same-sex marriage in India.
  • According to the Supreme Court, same-sex couples have the right to choose their partner and live with him, but they do not have the right to marry and adopt a child.
  • In the context of homosexual petitioners seeking marriage under the Special Marriage Act, 1954, the Supreme Court said that only the Indian Parliament has the power to change the Special Marriage Act, and not the Court.
  • The bench has given this decision on the basis of majority of 3:2. This bench included Justices Sanjay Kishan Kaul, Ravindra Bhatt, Hima Kohli and PS Narasimha.

Central Government's Argument in against same-sex marriage::

Social Values:

  • Same-sex marriages can affect social values.
  • Marriage between a biological man and woman is a "sacred union and a sacrament" in India.
  • Marriage is a social institution which is considered in the country as a sacrament, a bond and a sacred union.
  • In our country, despite the statutory recognition of the union of marriage between a biological man and a biological woman, marriage essentially depends on age-old customs, rituals, practices, cultural ethos and social values.

Political Values:

  • Legal, religious and social changes in human relations should be made through the legislature and not through the Supreme Court.
  • Some countries legally recognize same-sex marriages, it does not mean that these countries have declared it illegal. For example, in India, the country does not legally recognize same-sex marriage, but does not punish it as illegal under any crime.
  • The government argued that the Supreme Court, in its 2018 judgment in the Navtej Singh Johar case, had only decriminalized sex between same-sex individuals and not legalized the "conduct".
  • The Supreme Court, while decriminalizing homosexuality, had never accepted same-sex marriage as part of the fundamental right to life and dignity under Article 21 of the Constitution.
  • Same-sex marriage cannot be compared to a man and woman living together as a family that has children.
  • Registration of marriages of same-sex persons would violate existing personal law as well as codified law provisions.
  • Parliament has designed and framed the marriage laws in the country, which are governed by codified laws relating to personal laws and customs of different religious communities, only to be able to give legal sanction to the union of one man and one woman. recognize, and thereby claim legal and statutory rights and consequences. Any interference in this would lead to utter mayhem in the country with its delicate balance of personal laws and accepted social values.
  • Legal recognition of heterosexual marriage has been the norm throughout history and is "fundamental to both the existence and continuity of the state".
  • The government said there was a "compelling interest" for society and the state to recognize only heterosexual marriages.
  • The Special Marriage Act of 1954 provides a civil form of marriage for couples who cannot marry under their own personal law.

Petitioners' Argument in favor of same-sex marriage:   

  • Non-recognition of same-sex marriage amounts to discrimination that strikes at the root of the dignity and self-fulfillment of LBTQ+ couples.
  • The 1954 Act should give same-sex couples the same protections that allow inter-caste and inter-religious couples to marry.
  • The right to privacy guaranteed under Article 21 of the Constitution, the prohibition of discrimination on grounds of religion, race, caste and sex under Article 15 and the right to equality under Article 14 have been cited as violative.
  • The legal framework governing the institution of marriage in this country currently does not allow members of the LGBTQ+ community to marry a person of their choice.
  • Homosexuals have a fundamental right to live with dignity. They are entitled to be treated as human beings and should be allowed to imbibe the feeling of fraternity.
  • Equality is not achieved by discrimination of homosexuality alone, but should extend to all spheres of life including home, workplace and public places.
  • Currently, the rights to wages, gratuity, adoption, surrogacy etc. are not available to LGBTQ+ citizens.

Current status of same-sex marriages in India:

  • In India, marriage laws currently allow marriage between "one biological male" and "one biological female".
  • The institution of marriage between two persons of the same sex is neither recognized nor accepted in any of the uncodified personal laws or in any of the codified statutory laws.
  • This is the first major intervention in LGBTQ rights after the Supreme Court struck down Section 377 of the Indian Penal Code in 2018.
  • Section 377: Section 377 of the Indian Penal Code (IPC) is an act that criminalises homosexuality. It was introduced in the year 1861 during the colonial rule.
  • Under the law, whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life.

Same-sex marriage in other countries:

  • LGBTQ advocacy group report says only 32 countries worldwide recognize same-sex marriage.
  • USA, Mexico, Netherlands, Australia, Ireland, Switzerland, South Africa, Taiwan, Argentina, Canada etc.
  • In 2006, South Africa became the first African country to legalize same-sex marriage.
  • In 2001, the Netherlands was the first country to legalize same-sex marriage by amending a line in its civil marriage law.
  • In 2019, Taiwan became the first Asian country to legalize same-sex marriage.
  • In 2010, Argentina became the first Latin American country and the 10th country in the world to legalize same-sex marriage nationwide.
  • In 2017, Australia's parliament passed legislation recognizing same-sex marriage following a nationwide referendum (62% support).

What is same-sex marriage:

  • It is a practice of marriage between two men or between two women.
  • Same-sex marriage is regulated through law, religion and custom in most countries of the world.

Special Marriage Act, 1954:

  • This Act was passed by the Parliament on 9 October, 1954. This act allows secular marriage.
  • This act allows couples who cannot marry under private law to marry.
  • The Special Marriage Act, 1954 is an Act of the Parliament of India which provides for civil marriages for people in India and all Indian citizens abroad, irrespective of the religion or faith practiced by either party.
  • The couple has to give a notice to the marriage officer along with relevant documents 30 days before the intended date of marriage.
  • All marriages in India are registered under the personal law Hindu Marriage Act, 1955, the Muslim Marriage Act, 1954, or the Special Marriage Act, 1954.
  • Suitability:
  • Any person, irrespective of religion.
  • Hindus, Muslims, Buddhists, Sikhs, Christians, Parsis or Jews can also marry under the Special Marriage Act, 1954.
  • Inter-religious marriages are performed under this act.
  • The Act applies to the entire territory of India and also applies to the intending spouses of both Indian citizens living abroad.

Way Forward:

  • A committee should be constituted by the government to address the practical concerns of same-sex couples such as ration cards, pension, gratuity and inheritance issues.
  • Same-sex couples should not be discriminated against on the basis of their sexual orientation.
  • People should be made aware about gay rights.
  • People from the gay community should not be forced to return to their families or undergo any hormonal therapy.

Source: Indian Express

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Mains Exam Question

Analyze the impact of the pros and cons of Same-sex marriage on the social and political scenario of India.