Context

• The Centre recently filed an affidavit in SC in response to the batch of petitions seeking recognition of same sex marriages under the law.
• The article thereby draws attention towards the legal understanding of marriage and granting legal recognition to same-sex marriage in India.

Background

• Apex court directive: The SC had sought the Government’s response to appeals for allowing same-sex marriage under the Special Marriage Act (SMA) 1954, in a bid to provide legal sanction to widening social customs.
  • The petition argued that the SMA 1954 was “ultra vires” to the Constitution as it denies same-sex couples both “legal rights as well as the social recognition and status” that came from marriage.
  • The petitioners thus emphasized to make the 1954 Act gender-neutral which discriminates between ‘same-sex couples’ and ‘opposite-sex couples.’
• About the SMA 1954: It provides a civil form of marriage for couples who cannot marry under their personal law, thus validating and registering interreligious and inter-caste marriages in India.
  • It applies not only to all citizens of India but also all Indian nationals in foreign countries.

The Concept of Marriage

• Definition: Marriage is a voluntary union of equals where neither loses their autonomy to the other nor their personality.
  • The parties to the marriage, regardless of their sexuality or gender, agree to a mutual bond to provide emotional, financial, and sexual support to each other.
• Irrelevance of gender: In the above understanding of marriage, the gender or sexuality of either party should be irrelevant for all legal purposes.
  • Also, critics argue that neither affection nor desire can be mandated by the law, neither the choice of partner nor the gender of the partner nor the relationship between the two can be mandated by the law.
  • The claim of the LGBTQ community is hence made in this context of equality.
• Role of the state: The state is duty-bound to respect, protect, and fulfil rights related to marriage by preventing offences and violence from being committed on vulnerable populations.
  • In heterosexual relationships, data exists that such vulnerabilities have arisen on account of unequal distribution of matrimonial assets within the marriage, since they are primarily owned by the husband.
  • These vulnerabilities are compounded when the union breaks for any reason whatsoever.
  • Most countries have dealt with this by legislations. Yet another way to deal with this is through pre-nuptial agreements.

The Case of India

• India has no law for the equitable distribution of property, nor does it recognise prenuptial agreements, leaving the parties to be bound by the law of the religion into which they were born.
• The personal laws, on the other hand, also need a complete re-look if equality is to be achieved.
• Also, the non-recognition of pre-nuptial agreements belong to an era before the concept of divorce was introduced in statutory law.
• However, given the widespread prevalence of divorce in Indian society, pre-nuptial agreements must be encouraged as part of the public policy of the Union.
• The issues related to marriage and family must thus be seen as a step towards achieving true equality before the law and equal protection of the law (Article 14).
• Also, the recent petitions for same-sex marriages are not demanding the right to marry, since they have the freedom already, but only legal recognition of their decision similar to heterosexual couples.
• The question that needs to be pondered is that “Can the state withhold this recognition even when no legitimate state interest is shown to exist?”.
• The recent Union affidavit seeks to impose on the nation as a whole, regardless of the religion to which an individual may belong, a heteronormative conception of marriage which, apart from being homophobic, is patriarchal in the extreme.

Centre’s Arguments against Legalizing Same-sex Marriage

• Opposing same-sex marriage petitions, the Centre told the SC to leave the issue (based on cultural ethos and societal values) to Parliament, as any “recognised deviation can occur only before the competent legislature”.
  • This is because the “recognition of marriage necessarily brings with it right to adopt and other ancillary rights” and parliament provides a platform where social, psychological and other impacts on society, children, etc., can be debated.
• The Centre’s affidavit in SC underscored that the “legislative understanding of marriage in the Indian statutory and personal law regime” refers only to marriage between a biological man and biological woman.
  • It demonstrated that the language employed in the legal provisions e.g., ‘female’, ‘woman’, ‘husband’, ‘wife’ etc., is proof that legislature never intended to apply these laws to any union other than heterosexual marriages.
• It thus urged SC not to adopt a construction that would defeat such intent nor should it expand the definition of marriage as it would completely distort the language of the statute.
  • It also asserted that any interference would cause a complete havoc with the delicate balance of personal laws in the country and in accepted societal values.
• The Centre also underlined that despite the decriminalisation of homosexuality in the Navtej Singh Johar (2018) case (read down Section 377 of the IPC), the petitioners cannot claim a fundamental right for same-sex marriage.
• Countering arguments that same-sex falls within the domain of privacy of the partners, the Centre said marriage, as an institution in law, has many statutory and other consequences under various legislative enactments.
  • Thus, any formal recognition of such human relationship cannot be regarded as just a privacy issue between two adults.

Likely Ambiguities Related to Affidavit filed by the Union

• It is argued that marriage is “an institution” or that it is a “sacrament”.
• However, it is unclear what is meant by an institution in this context as marriage between two people of the same sex could equally be an institution.
• What is clear, however, is that marriage cannot be considered a sacrament anymore since it can be dissolved.
• The concept of marriage which is articulated in the affidavit is based on stereotypes of women being inferior to men.

What would be Implied Significance of Legal Recognition of Same-sex Marriage?

• It would withdraw any stigma from any union that people might agree to create with each other.
• It would also highlight that society cannot have a legitimate role to play in the recognition of the union since there is no state interest involved in the creation of the union.
• To withhold recognition will deny same-sex partners the hard-earned legacy of Navtej Singh Johar v. Union of India which decriminalised “carnal intercourse against the order of nature”.

Conclusion

• For a long time, the queer community has been forced into an existence which is illegal, and thus SC should pave way to recognize same-sex marriage and grant the LGBTQIA community their rights.
• However, it should be coupled with holistic debate which will ensure that wide ranging ramifications of recognizing sacred relationships like marriage are debated from every angle and legitimate state interest can be considered by the legislature.

EDITORIAL 2 – Japan-South Korea summit