Same-sex marriages: A matter for Parliament
- The Supreme Court, in Supriyo v. Union of India, has referred the matter relating to legalisation of samesex marriages to a Constitution Bench.
Position of the centre on same-sex marriage
- As per the arguments of center, the same sex marriage is notrecognised by Indian traditions, ethos, culture and the societal conception of the institution of marriage. Marriage is a holy union between a biological male and a biological female to form to conceive Children.
- If samesex marriages should be legalised, Parliament is the right institution to debate and decideand not the Court.
It is a duty of the Court to address the violations of fundamental rights, which is arising due to non recognition of samesex marriages.
The question of samesex marriages involves conflict between the rights of a society to conserve traditions and the right of an individual to enjoy his constitutional freedoms.
Arguments in support of the centre position on this matter
Marriage is predominantly a social institution. Therefore, it should be the domain of government to legislate. This point stregthens by the following 4 arguments:
- First,the question of samesex marriage has the potential to change the concept of a family which is the building block of society. Most of the conventional definitions of marriage adhere to the Centre’s conceptualisation of the institution.
- While samesex marriages are not a threat to this understanding, they demand a nuanced alterationof it.
- Second,the current legislative framework promotes the conventional understanding of marriage. Marriages in India are governed by the Hindu Marriage Act, 1955; the Parsi Marriage and Divorce Act, 1936; the Christian Marriage and Divorce Act, 1957; and Muslim Personal Laws. All marriage laws recognize marriages between a man and a woman. Although the Special Marriage Act (SMA) of 1954, uses gender-neutral language, it cannot be presumed to faour same-sex marriage.
- Third, religious and societal moralitystill conceptualises intercourse as a procreative activity. Various laws pertaining to marriage requires the consummation of marriage for its validation. Consummation for purposes other than procreation is not considered a moral thing.
- In the legal concept of marriage, procreationis a basic requirement. Section 12 of the Hindu Marriage Act provides that where a marriage has not been consummated owing to the impotence of one of the parties, the said marriage is voidable.
- Fourth,center’s concerns regarding alteration of family unit are not as regressive as they looks. It is iin line with the broader social acceptability. For example, Live-in relationships are judicially recognised, but they are not equated to marriage under the law. The social acceptability of such relationships remains debated.
Looking ahead
- The issue of legal recognition of samesex unions requires a broader debatein society and the legislature.
- The rights issuesrelated to same sex marriages are substantial and must be addressed immediately. The push to formalise the institution of samesex unions must come from representative bodies such as Parliament.
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