Introduction: The Supreme Court of India is currently hearing petitions related to the legalization of same-sex marriage under the Special Marriage Act. The Special Marriage Act is a civil form of marriage for couples who cannot marry under their personal law. However, the Indian government advised the Supreme Court to defer the case to Parliament as the law cannot be revised to allow same-sex marriage. This situation highlights the need to examine the issue of same-sex marriage and its associated concerns.
Religious Definitions of Marriage: One argument against same-sex marriage is that it goes against traditional religious definitions of marriage, which have always been between a man and a woman. The Special Marriage Act was created to provide a civil form of marriage for couples who cannot marry under their personal law, not to create a new institution of marriage.
Legitimate Interest of the State: The state has a legitimate interest in regulating personal relationships, including marriage, as seen in laws regarding age of consent, prohibited degrees of marriage, and divorce. The right to marry is subject to state laws and is not absolute.
The Right to Privacy: While the right to privacy is a fundamental right recognized by the Supreme Court, marriage has a necessary public element that cannot be ignored. Consenting sexual relationships between adults are private, but marriage has a public aspect that cannot be extended to privacy.
Legislation by Parliament: The authority to decide on same-sex marriage should rest with Parliament, not the court, as it is a matter of democratic right. The complexity of dealing with the various permutations and combinations of genders falling under the LGBTQIA+ community also presents potential unintended consequences in law.
Interpreting the Law: The Special Marriage Act cannot be interpreted to include same-sex marriage without examining the Act’s entire architecture, not just a few words. Allowing one party in a same-sex marriage to have specific rights could create a problem for heterosexual marriages.
Issues with Adoption of Children: Queer couples adopting children can lead to societal stigma, discrimination, and negative impacts on the child’s emotional and psychological well-being, especially in societies where acceptance of the LGBTQIA+ community is not universal.
Gendered Terms: The use of gendered terms like ‘mother’ and ‘father’, ‘husband’ and ‘wife’ would be problematic in same-sex marriages.
What are the Arguments in Favour of Same-Sex Marriage?
Exploring Same-Sex Marriage and Cohabitation in India
The challenges and issues surrounding same-sex marriage and cohabitation in India.
Opposing same-sex marriage as a threat to the human race is unreasonable because adoption is a viable solution for queer couples who want to raise children. The demand for marriage equality comes from less economically privileged people who need legal protection. The Special Marriage Act should be extended to include queer Indians by using gender-neutral language like “spouse” instead of “husband” or “wife”.
Cohabitation as a Fundamental Right:
The Chief Justice of India acknowledged that cohabitation is a fundamental right, and it is the government’s obligation to legally recognize the social impact of such relationships. The court suggested labels like “contract” or “partnership” instead of “marriage”. The recognition of cohabitation as a fundamental right for same-sex couples would entitle them to benefits without being equated to marriage.
Assimilation of Same-Sex Couples:
The CJI has emphasized the need to assimilate same-sex couples into society rather than ostracizing them. The government should address the practical issues faced by same-sex couples, such as joint bank accounts and entitlement to pension and gratuity.
Indian Culture and Value System:
In India, acceptance of same-sex relationships still poses a challenge, even after legal recognition. It goes against traditional values and beliefs. However, the recognition of same-sex marriage adds to the diversity of relationships that exist in society.
The Supreme Court granted same-sex couples the freedom to lead a dignified private life. The LGBTQIA+ community is being denied important legal benefits like tax benefits, medical rights, inheritance, and adoption by not being allowed to marry. Marriage is not just about dignity, but also a collection of rights.
India has made significant progress in recognizing same-sex relationships. However, there is still a long way to go to ensure that queer individuals have the same legal protections and rights as their heterosexual counterparts.
What could be the Way Forward?
How to Legalize Same-Sex Marriage in India:
Raising Awareness: The promotion of equality and acceptance of all sexual orientations through awareness campaigns can help expand public opinion about the LGBTQIA+ community.
Legal Reforms: Amending the Special Marriage Act to allow same-sex couples to legally marry and enjoy the same rights and benefits as opposite-sex couples, or creating a contract-like agreement to provide similar rights for homosexual couples.
Dialogue and Engagement: Engaging in a dialogue with religious leaders and communities can help bridge the gap between traditional beliefs and modern attitudes towards same-sex relationships.
Legal Challenges: The Indian LGBTQIA+ community can challenge the constitutionality of the current laws that prevent same-sex marriage in court, establishing a legal precedent for its legalization.
Collaborative Effort: Legalizing same-sex marriage in India requires a collaborative effort from all stakeholders, including the LGBTQIA+ community, the government, civil society, and religious leaders. Together, they can create a more inclusive society where everyone has the right to love and marry whomever they choose, regardless of their gender.