HOW DOES ONE DEFINE 'MARRIAGE'?
It is from a societal position of analysis that the institution of marriage represents all the behaviours, morals, roles, prospects, and values that are associated with the union of a man and a woman. It satisfies both spouses' social, cultural, economic physical, and psychological needs. Although it might be argued that marriage is a sacrament that is defined as a union only between a man and a woman, it is believed that altering the definition of marriage to include homosexual couples would be detrimental to traditional family values and the institution of marriage. Arguments suggest that the primary purpose of marriage is to procreate and that same-sex couples cannot fulfil this purpose. Thus, making their union different from that of heterosexual couples.
The Indian legal system does not acknowledge same-sex marriages, and the personal laws enjoyed by different religious groups, define marriage as a union between a man and a woman. The Supreme Court of India, in its judgment in Navtej Singh Johar v. Union of India (2018) decriminalized homosexuality which was a criminal offence under section 377 of the Indian penal code. This was a breakthrough for LGBTQ+ rights in India, although it did not legalize same-sex marriages. Several legal cases have been filed in Indian courts seeking legalization of same-sex marriages but the courts have not yet granted the same.
WHAT IS SAME-SEX MARRIAGE?
Same-sex marriage refers to matrimony between two individuals of the same sex. According to the 2023 Pew research poll, 53% of adults in India supported the legalization of homosexual marriages while 43% opposed it. It is an important issue for LGBTQ+ rights activists and legal practitioners around the world, and its significance extends beyond the legal sphere to broader social and cultural tolerance toward the LGBTQ+ community.
INDIAN JUDICIARY IN LEGALIZING SAME-SEX MARRIAGE
Indian judiciary system doesn't provide for marital rights and benefits that come with it, such as inheritance rights, joint property ownership, and adoption rights. The Delhi High Court, in 2017 held the right to marry is a fundamental right and that denying homosexual couples the right to marry is a violation of their rights however, the decision was later overturned by the Supreme Court.
The decision of Navtej Singh Johar, delivered by the Supreme Court in 2018, was a milestone in the struggle for recognition of LGBTQ+ rights. This was a significant event as the judiciary recognized their right to choose their partners and express themselves freely.
IS CIVIL UNION AN ALTERNATIVE?
The Supreme Court of India in August 2022, recognized Same-Sex Couples in a live-in relationship and granted them certain benefits analogous to cohabitation but not the social and civil rights that two people are entitled to as a heterosexual counterpart.
Recently, a group of petitions has been moved before the Supreme Court, seeking recognition of their relationship with the legal and social status of 'marriage'. Additionally, petitioners have pleaded for a declaration by the Supreme Court that 'marriage' under the Special Marriage Act,1954, would include same-sex couples. Nine pending appeals were transferred to The Supreme Court by a three-judge bench from the Delhi and Kerala High Courts in January 2023. On March 13, 2023, the three-judge bench led by CJI DY Chandrachud referred the case to a five-judge Constitution Bench.
On 3rd May 2023, Solicitor General Mehta informed the Bench that a committee would be formed under the Cabinet Secretary. The Court noted that, for the committee to be effective, it would have to cooperate with other ministries and call on the applicants to draw up a list of issues. In addition, the Court clarified that, in the present case, the right to marry is still to be decided. Administrative measures for setting up committees must be taken regardless of the verdict of the ongoing case. For now, The Constitution Bench concluded hearings and reserved their verdict on May 11, 2023, after ten total days of hearings from petitioners and respondents.
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