Same Sex Marriage

Marriage in India continues to retain its moral and cultural origins in which lies the deeply rooted idea of heterosexual exclusivity of marriage. But to choose a life partner is an absolute right of an individual forming essence of personal liberty under the Constitution. Hence the myopic view of the present issue needs to be broadened.

Content:

In news:

• The Delhi High Court recently issued notice to the Centre on a petition seeking a direction to the government to recognise same-sex marriages under the Hindu Marriage Act (HMA) and the Special Marriage Act (SMA).
• The Centre has been asked to submit its response within four weeks.
• The petition was filed by members of the lesbian, gay, bisexual and transgender (LGBT) community and certain activists.
• The plea argued that the Supreme Court had in 2018 decriminalised consensual homosexual sex in India.
• There is nothing in the HMA that mandated that marriage should take place only between a Hindu man and a Hindu woman.
• While there is no statutory bar under the HMA and the SMA against gay marriages, they were not being registered throughout the country.

Problems faced by community due to non recognition:

• Exclusion and discrimination by society
• Lack of family and social support which results in them leaving home
• Dropping out of school earlier
• Unable to find regular jobs, have less options than others
• Being ignored in the community and isolated
• Unable to access various services
• Migrate to other countries for seeking safer livelihood and acceptance
• Get rejected from religion
• Attempt suicide, prone to substance abuse
• Sexually abused
• Decide to follow their parents to marry opposite sex and then divorce
• Greater unemployment and poverty

Arguments for recognition:

• Right to marry is a part of ‘right to life’ under Article 21 of the Constitution.
• Not giving recognition to same-sex marriages has resulted in deprivation of many benefits that would otherwise be available to heterosexual married couples.
• Prohibition of marriage of LGBT people on the basis of sexual orientation and gender identity is an absolute discrimination towards them.
• It violates the right to equality as granted by the Constitution.
• Various countries such as the U.S., Australia, Germany, Canada, Spain, South Africa, Brazil, and England have made same-sex marriages are legal.

Hurdles:

• It would be an uphill task to seek amendments to the personal laws of all religions.
• Any judicial intervention in this regard would be perceived as interference in religious freedom.
• Bringing legislative amendments to the SMA to include same-sex marriages needs parliamentary approval which is again based preconceived religious notions.
• Indian society which considers marriage as a sacred bond, finds difficult to accept the unusual same-sex marriages.