Same-sex Marriage

 A case ( Supriyo vs Union of India) is filed in the Supreme Court to recognise Same-sex marriage. It was referred to the constitution bench. The bench of 5 judges will look into the validity of the same-sex marriage. It will look into the apprehension of society and the rights LGBTQ+ community. It will have legal, moral, individual rights, societal rights and traditional fabrics that need scrutiny.

Decriminalising homosexuality under Section 377 of IPC in Navtej Singh Johar vs Union of India 2018. Before this homosexuality in punishable offence but now consensual sex is permitted and will not attract any punishment. This paves the way for a homosexual relationship but homosexuals have no rights. To get this right, Equal Rights Activists went to the Supreme Court as the legislature are completely silent.

Marriage in India is governed by different religious laws like Hindu Marriage Act, Muslim personal law, Christian Marriage Act, and Special Marriage Act. Every law permits only heterosexual marriage. Religious institutions have raised their apprehensions against homosexual marriages. They say that marriage is a sacred institution and it is possible between heterosexuals for procreation and it is not possible in homosexual relations.RSS though changed its thought on same-sex relationships, they accepted it but not agreeing to the marriage of same-sex couples

The government in its affidavit mentioned that it is against same-sex marriage and said it is not in the domain of courts. Legalising same-sex marriage needs law and is under the parliament’s legislative jurisdiction. It must be noted that the government while decriminalising homosexuality left it to the courts but this time they spelt negatively.

Societal Traditions Vs Rights of the Individual

Indian constitution provides fundamental rights to its citizen for a decent life. It includes the Right to life and the Right to Privacy. Homosexuals today are deprived of their basic human rights of getting married and having a family. As of now, it is not recognised under any law. They are the individuals like everyone in the country. Hormonal changes and attraction towards the same gender or different does not make them inferior citizens. Due to a lack of recognition, they are deprived of their basic human rights. They face discrimination everywhere and the Constitution prohibits discrimination based on caste, creed, sex, and place of birth. This violates their fundamental right. 

Every individual has the right and the state must provide, protect, and secure the rights of individuals.

Society is opposing homosexual marriage as it is against societal tradition. Marriage is between a man and a woman. The basic element of marriage is procreation. Marriage is a sacred institution and fabric of any civilised society. A marriage which is not consummated is not accepted as marriage. Society and the world are continuing due to this sacred institution of marriage. Homosexuality is against Indian values and ethos.

Legal and moral hardships

Marriage is not just one right it is a bundle of rights which include succession, adaptation, protection, guardianship, and inheritance.

Homosexual marriage does not offer these rights as all these rights are available only to married persons. Grating the legal status will open pandora box for others’ rights as well. Social acceptance of marriage, social acceptance of the adopted child, divorce, guardianship of the adopted child in case of any dispute, and educational right to the child to name a few are the challenges

Tough road ahead

Respecting the traditions and customs of society should not hinder the right of individuals. There should be a mechanism to respect both. Individual rights can not be curtailed every time just because it is not socially accepted. It requires a bottom-up approach rather than top down. The top-down approach to sensitive societal issues has not worked well as can be seen in the Jalikattu and Sabarimala verdicts. It is also true that our society is a progressive society which banned sati, started widow remarriage, stopped dowery, women’s education and equality for all. One thing to note is that all this reform is done after mass sensitisation and demand were raised by the masses due to efforts of social reformers who highlighted the menace.

Legalising and recognising same-sex marriage need debate, discussion, public awareness, and sensitisation of the masses with the roots in society for societal acceptance. It should be done at the legislative level as it is not just marriage but have to make relevant changes in other laws. As the matter is subjudice we have to wait for the comments of the supreme court and the reaction of the people after that.

Divyanshu Vishen

(views expressed are personal)