Same Sex Marriage

  • IASbaba
  • February 27, 2021
  • 0
UPSC Articles
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  • GS-1: Salient features of Indian Society, Diversity of India; Social Empowerment,
  • GS-2: Government Policies and Interventions for Development in various sectors and Issues arising out of their Design and Implementation.

Same Sex Marriage

Context: The Delhi High Court was hearing three separate petitions by same-sex couples seeking to declare that the Special Marriage Act (SMA) and Foreign Marriage Act (FMA) ought to apply to all couples regardless of their gender identity and sexual orientation.

Opposition by Centre/ Stance by Government with regard to petition in HC

  • Not compatible with Indian Family Concept: Living together as partners and having sexual relationship by same-sex individuals is not comparable with the Indian family unit concept of a husband, a wife and children.
  • Not Codified: Marriage between two individuals of the same gender is “neither recognised nor accepted in any uncodified personal law or any codified statutory law”.
  • Issue with Personal Laws: Any interference with the existing marriage laws would cause complete havoc with the delicate balance of personal laws in the country. It may lead to further anomalies with laws governing marriages of persons belonging to the Christian or Muslim faith.
  • Registration of marriage of same-sex persons also results in violation of existing personal as well as codified law provisions — such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under the personal laws governing the individuals.
  • No Fundamental Right to same-sex marriage: Supreme Court judgment in the Navtej Singh Johar case “does not extend the right to privacy to include a fundamental right in the nature of a right to marry by two individuals of same gender”. 
  • Legislative Challenges: Any other interpretation except treating ‘husband’ as a biological man and ‘wife’ as a biological woman will make all statutory provisions unworkable. In a same sex marriage, it is neither possible nor feasible to term one as ‘husband’ and the other as ‘wife’ in the context of legislative scheme of various statute
  • Domain of Legislature: The considerations of “societal morality” are relevant in considering the validity of a law and it is for the Legislature to enforce such societal morality and public acceptance based upon Indian ethos.

Connecting the dots:

  • Navtej Singh Johar case
  • K S Puttaswamy Judgement
  • NALSAR Case

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