Same-sex marriages: A matter for Parliament

Source– The post is based on the article “Same-sex marriages: A matter for Parliament” published in “The Hindu” on 3rd April 2023.

Syllabus: GS1- Salient features of society

Relevance– Issues related to same sex marriages

News– The Supreme Court, in Supriyo v. Union of India, has referred the matter relating to legalisation of same­sex marriages to a Constitution Bench.

What is the position of the centre on same-sex marriage?

As per the arguments of center, the same ­sex marriage is not recognised 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 decide and not the Court.

What are arguments in support of court intervention in the issue?

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.

What are 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 alteration of 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 morality still 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, procreation is 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.

What is the way forward for same sex marriages in India?

The issue of legal recognition of same­sex unions requires a broader debate in society and the legislature.

The rights issues related 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.