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 marriageprocreationis 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.


POSTED ON 17-04-2023 BY ADMIN
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