Institution Of Marriage Has Undergone Sea Changes: SC

Relevance: GS1 - Salient features of Indian Society, Diversity of India, Social empowerment; GS2 - Structure, organization and functioning of the Judiciary; Mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections

(Source: The Hindu, The Hindu; 10/18/2023)

Click here for Daily Current Affairs

Why in the news?

• Recently, the Supreme Court of India addressed the evolving nature of the institution of marriage.
• The Court declined to grant legal recognition to same-sex marriages under the Special Marriage Act, asserting that it is Parliament's responsibility to modify the law to validate such unions.
• The court instead accepted the government's offer to set up a panel to consider granting more legal rights and benefits to same-sex couples.
• The Constitution Bench was also divided in its opinions on whether unmarried couples, including same-sex partners, can jointly adopt children.

What is the observation of the Supreme Court (SC)?

• Against Constitutional Validity: A five-judge Constitution Bench of the apex court headed by Chief Justice of India ruled in a 3:2 verdict against giving constitutional validity to same-sex marriages.
• Diverse Conceptions of Marriage: It was stated that there is no universal conception of marriage and it is understood differently in law, in religion, and in culture. Some religions consider marriage a sacrament while others consider it a contract.
• Transformation of Marriage Over Time: The Chief Justice highlighted how marriage has transformed over time, mentioning historic practices like sati, widow remarriage, child marriage, and inter-caste or interfaith marriages. These changes were largely brought about by legislative acts by Parliament and state legislatures.
• The CJI stated that under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage.
• Civil Union: CJI DY Chandrachud and Justice Kaul (Minority Opinions), favoured extension of Civil Union to same-sex couples.
  • A ‘civil union’ refers to the legal status that allows same-sex couples specific rights and responsibilities that are normally conferred upon married couples. Although a civil union resembles a marriage, it does not have the same recognition in personal law as marriage.

What is Same Sex Marriage?

• Same-sex marriages refer to marriages between two individuals of the same gender.
• This topic is important because it relates to the fundamental human rights of LGBTQ+ individuals and the recognition and protection of their relationships.

Supreme Court's Earlier Views on Same-Sex Marriage in India

• Constitutionality of Section 377 of the Indian Penal Code: In 2001, the Naz Foundation filed a Public Interest Litigation (PIL) in the Delhi High Court, challenging the constitutionality of Section 377 of the Indian Penal Code.
  • In a landmark decision in 2009, the Delhi High Court declared Section 377 unconstitutional, effectively decriminalizing homosexuality.
  • However, in 2013, the Supreme Court of India reversed the Delhi High Court's decision, reinstating the validity of Section 377.
• Shafin Jahan v. Asokan K.M. and others 2018: In this case, the Supreme Court emphasized that the right to marry a person of one's choice is a fundamental right, integral to Article 21 of the Indian Constitution. Article 16(2) of the Indian Constitution prohibits discrimination based on various grounds, including religion, race, caste, sex, and more.
  • The right to marry is considered intrinsic to the liberty guaranteed by the Constitution, as it enables individuals to make decisions central to their pursuit of happiness.
  • The Court highlighted that matters of belief and faith, including the decision to marry, are fundamental aspects of constitutional liberty.
• Navjet Singh Johar and others v. Union of India 2018: In this case, the Supreme Court ruled that LGBTQ individuals are entitled to the same constitutional rights as all citizens, including fundamental liberties and equal protection under the law.

What is the legality of Same-Sex Marriages in India?

• The Indian legal system does not recognize same-sex marriages, and the country’s laws define marriage as a union between a man and a woman.
• The right to marry is not expressly recognized either as a fundamental or constitutional right under the Indian Constitution but a statutory right.
• While statutory laws govern marriage in India, the recognition of marriage as a fundamental right has evolved primarily through Supreme Court judgments.
• These judicial decisions are binding on all Indian courts, as per Article 141 of the Constitution. Article 141 provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India.

Arguments in Favor of Same-Sex Marriage

• Equal Rights and Protection Under the Law: It is being argued that all individuals, regardless of their sexual orientation, have the right to marry and form a family. Same-sex couples should have the same legal rights and protections as opposite-sex couples, ensuring equality under the law.
• Non-Discrimination: Non-recognition of same-sex marriage is seen as a form of discrimination that violates the dignity of LGBTQIA+ couples. It's important to address this inequality to promote a just and inclusive society.
• Strengthening Families and Communities: Marriage provides social and economic benefits to couples and their families, which can also positively impact same-sex couples. Recognizing their unions can contribute to stronger families and communities.
• Cohabitation as a Fundamental Right: The acknowledgment of cohabitation as a fundamental right by the Chief Justice of India underscores the importance of legally recognizing the social impact of same-sex relationships and protecting the rights of LGBTQIA+ individuals.
• Gender Complexity: The Supreme Court of India's recognition that biological gender is not absolute and that gender is more complex than one's genitals supports the idea that marriage should not be limited to traditional gender roles.
• Global Acceptance: The fact that many countries have legalized same-sex marriage reflects a global shift towards recognizing equal rights for LGBTQIA+ individuals. Denying this right in a democratic society can be seen as contrary to these global principles.

Arguments Against Same-Sex Marriage

• Religious and Cultural Beliefs: Opponents of same-sex marriage often argue that it conflicts with the traditional definition of marriage held by certain religious and cultural groups. They believe that changing this definition would go against their deeply held beliefs and values.
• Family and societal pressure: Family and societal pressure to conform to heterosexual norms and expectations could lead to significant social pressure against same-sex marriage.
• Procreation: Some individuals contend that the primary purpose of marriage is procreation, and same-sex couples cannot have biological children. They argue that allowing same-sex marriage deviates from what they perceive as the natural order of things.
• Legal Concerns: There are concerns that permitting same-sex marriage could lead to legal complications related to inheritance, taxation, and property rights. Critics argue that adjusting existing laws and regulations to accommodate same-sex marriage could be complex and costly.
• Adoption of Children: The adoption of children by queer couples can sometimes result in societal stigma, discrimination, and potential negative impacts on the child's emotional and psychological well-being. In societies where LGBTQIA+ acceptance is not universal, some argue that this issue needs careful consideration.

(*Click this link to read prelims specific weekly current affairs articles)

FAQs

MCQ

Question: Which Article of the Constitution of India safeguards one’s right to marry the person of one’s choice? (UPSC 2019)

(a) Article 19

(b) Article 21

(c) Article 25

(d) Article 29