Issues of Same-Sex Marriages : Daily Current Affairs

Date: 15/03/2023

Relevance: GS-2: Welfare Schemes for Vulnerable Sections of the population by the Centre and States and the Performance of these Schemes;
Mechanisms, Laws, Institutions, and Bodies constituted for the Protection and Betterment of these Vulnerable Sections.

Key Phrases: Ministry of Social Justice and Empowerment, Special Courts, LGBTQ, Same-sex marriage, Homosexuality, Special Marriage Act 1954, Supreme Court, Article 21.

Context:

  • Recently, the Chief Justice of India said that children of lesbian, gay parents do not necessarily become lesbians or gays.

Key Highlights:

  • Homosexual groups constitute around 8% in India, meaning they have a population of over 10 crores.
  • In 133 countries homosexuality is decriminalised, but only in 32 of them same-sex marriage is legal.
  • After the Supreme Court has decriminalized homosexuality, demands have arisen regarding the recognition of same-sex marriage.

Petitions Same-Sex Marriage:

  • Recently some people belonging to the LGBTQ community appealed to the Supreme Court to recognize the marriage between any two people under the Special Marriage Act without considering their gender.
  • The supreme court sought a response from the central government, on which the central government has submitted its affidavit against same-sex gay marriage.
  • The case involved an “interplay” between constitutional rights of life, liberty, dignity, equal treatment of members of the LGBTQ+ community on one side and specific statutory enactments that consider only a married union between a biological man and woman on the other side.
  • The three-judge Bench invoked Article 145(3) of the Constitution to refer the case to a five-judge Bench.
    • Article 145(3) mandates that cases involving substantial questions and interpretation of the Constitution should be heard by a Bench of at least five judges.
  • Now, the hearing of the case would be livestreamed from April 18 in public interest.

Arguments in Favor of Same-sex Marriage

  • Articles 15, and 16 of the Indian Constitution prohibit discrimination based on gender, but these rights are often violated in society.
  • Person with Same-sex marriage is denied from property, insurance, and family rights.
  • Right to life (Article 21) includes dignity of choice and family, marriage, procreating and sexual orientation.
    • The denial of the status of marriage to same-sex couples directly affects their right to choose a partner.
  • Many times, physical or mental violence is also used by conservative elements of the society on same-sex couples.
    • Thus same-sex marriage hinders the use of fundamental rights, social rights, family rights of the person.
    • Therefore, same-sex marriage should be recognized under the Special Marriage Act, so that they can get their rights.

Argument against the Same-sex Marriage

  • It is clear in the definition of marriage by Parliament that marriage in India can be recognized only when there is a marriage between a "biological man" and a "biological woman" capable of bearing a child.
    • In India, marriage is not considered to be a sexual necessity but a sacrament that is indicative of the sanctity of marriage.
  • The concept of marriage in Indian society is based on a husband, a wife, and a child, which cannot be compared with a gay family.
  • It has been criminalized by the Hon'ble Supreme Court.
    • This does not confirm gay marriage or conduct to be a fundamental right.
  • The power of amendment in the Special Marriage Act-1954 or Hindu Marriage Act-1955 is vested in the legislature and not in the judiciary.
    • Therefore, the legislature can consider the status of recognizing this type of marriage while balancing the social morality and independence of the individual.

Homosexuality

  • Homosexuality is generally defined as the attraction between people of the same sex by nature or love, but it is a narrow definition of homosexuality.
  • There are several categories of flour mainly in the gay category which are described as follows -
    • Lesbian - A woman's attraction to another woman
    • Gay - One man's attraction towards another man
    • Bisexual - Attraction towards both (same and opposite) sexes
    • Transsexual - Changes in the opposite sex of the natural sex
    • Queer - They are not confident about their sexual attraction.
  • These categories are collectively combined with LGBTQ.

Special Marriage Act, 1954

  • Marriages in India can be registered under the respective personal laws Hindu Marriage Act, 1955, Muslim Marriage Act, 1954, or under the Special Marriage Act, 1954.
  • The Special Marriage Act, 1954 is an Act of the Parliament of India with provision for civil marriage for people of India and all Indian nationals in foreign countries, irrespective of religion or faith followed by either party.
  • When a person solemnized marriage under this law, then the marriage is not governed by personal laws but by the Special Marriage Act.

Way Forward:

  • There is a need to be careful while taking decisions regarding such a large population ( around 10 crore).
  • The Special marriage act is a law that was passed originally to legalize interfaith unions.
    • So same sex marriages can be recognised under the Special Marriage Act.
  • It is also necessary to strike a balance between a rapidly changing society and individual rights.

Conclusion:

  • Indian courts have often given judgments in such circumstances by balancing progressive society and individual rights.
    • This time too, a decision should be made keeping both views in mind.

Source: The Hindu

Mains Question:

Q. What are the arguments in favour and against for the same sex marriage in India? (150 Words).