Bhaskar Upadhyay
Introduction
A five-judge bench of the Supreme Court comprising CJI DY Chandrachud, Justice Ravindra Bhat, Justice Sanjay Kishan Kaul, Justice PS Narasimha, and Justice Hima Kohli, has reserved the verdict after 10 days of hearing a bunch of petitions – same-sex marriage in India. The petitioners argue to declare marriage a fundamental right for non-heterosexual couples which is implicit in the Constitution. The petitioners rely upon the recent Supreme Court judgment in “Navtej Singh Johar v. Union of India,” [i], “Justice KS Puttaswamy V. Union of India” [ii] to establish that non-heterosexual couples should be allowed to enjoy privacy and dignity which was upheld by the Apex Court in both the above-mentioned judgments. The petitioners also argue that not allowing non-heterosexual couples to marry is violative of Article 15 as it prohibits gender-based discrimination. It is also violative of Article 19, as denying non-heterosexual couples the right to marry would amount to restricting their freedom to self-identification of gender. The respondents in the instant petitions contend that the basic feature of marriage is a union of two opposite sex. Senior Advocate Kapil Sibal who represented Jamiat-Ulema-i-Hind argued that recognizing same-sex marriage will disrupt religious values and it affects the interest of every citizen. The Bar Council of India has also passed a resolution claiming that 99.9% of the citizens are against the legalization of same-sex marriage. The Bar Council of India also requested the Apex Court to leave the matter for the consideration of the legislature. Several petitions opposing the idea of same-sex marriage are also being filed by various religious groups as this idea goes against their beliefs.
Marriage gives us social recognition and it legally validates numerous rights as a couple. It sanctions various rights to the couple such as adoption, maintenance, guardianship, inheritance, etc. The traditional belief regarding marriage is the union of a biological male and a biological female. Same-sex couples demand the right to marry and enjoy equal rights as the heterosexual community. Petitioners argue that the state cannot discriminate against someone because of their sexual orientation and about 34 countries of the world have allowed same-sex marriage.
In 2018, The Supreme Court of India in its landmark judgment Navtej Singh Johar v. Union of India [iii], struck down section 377 (Indian Penal Code) which criminalized homosexuality. In the case of NALSA v. Union of India, [iv] the Apex court had also recognized transgenders as the third gender and said that they should enjoy equal fundamental rights.
Gender Binary System
At present, marriage is based on a gender binary system. The Special Marriage Act has constantly seen marriage as a union between a biological man and woman. The Chief Justice of India, DY Chandrachud, though, has provided a wider scope to the definition of gender. He remarked “There is no absolute concept of a man or a woman at all. The biological definition is not what your genitals are.” The drawback of this idea is that conferring wider scope to the gender definition will be difficult. If a biological man starts identifying himself as a woman, this will further the challenges for the state.
As of now, marriage is seen as a duty-based institution rather than a right-based one. Family is considered an important social unit where each family member fills a role, a father, a mother, children, etc., and follows the duties assigned to them. This, however, might not be possible in a same-sex marriage and for the utmost welfare of the child, it is much needed for a child to be raised by both father and mother. In a marriage, promises are being made, which are duties to be fulfilled, like “Saptapadi” in Hindu Marriage Act. And these duties come from the binary system including the duty of the husband to maintain the wife, if the binary system is removed from the institution of marriage, numerous rights of women will be lost that comes from the binary system. For example, if the same-sex marriage is legalized, then there will be gender neutral maintenance provisions which will have adverse effects on the women’s right to get maintenance. As per a recent survey, 50% of Indian women are still not financially independent. Hence, in the present circumstances, the gender binary cannot be eliminated from the institution of marriage.
Even if marriage were to be considered a matter of right, it cannot be an absolute right. The solicitor general argued that there must be some restrictions upon this institution or else the claim will also rise upon allowing bigamy, polygamy, and removing the restriction of sapinda, prohibited relationships, incest, etc.
Maintainability of the Petitions
The Solicitor General of India, Tushar Mehta has contended that these petitions are not maintainable and should not be heard by the Supreme Court. Recognition of marriage is a policy matter which falls within the domain of the legislature. Solicitor General argued that legalizing same-sex marriage will require at least 160 prevalent laws to be amended by the parliament. What the petitioners can do, is file a representation before the parliament to address this issue. The judiciary is not the appropriate authority to create new socio-legal relationships, as this will amount to judicial overreach. Senior advocate Mukul Rohatgi for the petitioners argued that non-heterosexual couple have equal rights under the Constitution as the heterosexual group and that the petition is maintainable and they have a fundamental right to be heard under Article 32. On the question of maintainability, Supreme Court said that as of now it will confine itself within the scope of Special Marriage Act and will not interfere in the personal laws.
Is India’s Legal Infrastructure well equipped to deal with the issues arising from Same-Sex Marriage?
Most of the countries which allow a same-sex couple to marry follow a Uniform Civil Code (UCC). They do not have separate personal laws to govern marital issues. On the other hand, India is equipped with separate personal laws such as Hindu Marriage Act, Muslim Personal Law, Christian Marriage Act, etc. which have different customs and values. These personal laws govern marriage, divorce, maintenance, adoption, succession, etc. They also deal with marriages which are only between a biological male and female. Even in the secular law, The SMA, no provision regarding same-sex marriage is talked about.
If same-sex marriage in India is provided with legal recognition, various questions will arise regarding maintenance, divorce, adoption, child custody, separation, etc. As of now, in almost every personal law it is believed to be the natural duty of a man to provide maintenance to his wife. Here, another question that arises is, who will provide maintenance in the case of same-sex marriage?
Same-sex marriage will also conflict with the Juvenile Justice Act, 2015. Section 57 (4) of the act restricts a single male to adopt a girl child. Now if a gay couple wishes to adopt, they cannot do so under the said law. It will also conflict with the Hindu Succession Act, 1956, which states that the mother will be the legal heir of her son’s property.
Providing legal recognition to same-sex marriage will disrupt the balance of personal laws. As of now, Indian legal infrastructure is not yet well-equipped to deal with these issues that will arise if same-sex marriage is legalized. Before legalizing same-sex marriage, it needs to be ensured that these questions are well addressed.
If the UCC is implemented across the country, then there might be a possibility that India can allow same-sex marriage. But still, as discussed above, there will be problems related to the gender binary issue, as the Indian women are still financially dependent on men. Hence, before legalizing same-sex marriage Indian women needs to be financially independent so as to accommodate gender-neutral maintenance laws.
Is Volksgeist ready to accept Same-Sex Marriage?
Indian society still sees same-sex marriage as a social stigma. A few years back homosexuality was a criminal offense. The Volksgeist is not yet evolved enough to accept the recognition of same-sex marriage. It is believed to be unnatural and against religious scriptures. Homosexuality is still not acceptable to many citizens. The best embodiment of Volksgeist is “customs” and every religious belief is that same-sex marriage is against customs and traditions and allowing same-sex marriage will disrupt the sanctity of marriage. Marriage as an institution is only for the union of the opposite sex. Even if legal recognition is provided for same-sex marriage, it will be unacceptable to society.
Though in the present times, society is not ready to accept same-sex marriage and this idea is believed to be against societal values. Owing to the stigma, a homosexual couple might face social boycott and this decision of legalizing same-sex marriage might be counterproductive as it will indirectly discriminate the homosexual community. But this view might be evolved with time to provide marriage equality to the queer community and allow them to enjoy equal rights.
It will also not be appropriate to say that the legislature has to wait for society’s view to evolve at the cost of suppressing the rights of the minority. But before any legislation is passed providing legal recognition for same-sex marriage, it must be ensured that the issues that might arise are well settled and the legal infrastructure is fully equipped to deal with the same after ascertaining the impacts that personal laws will have after the legal recognition.
[i] AIR 2018 SC 4321
[ii] AIR 2017 SC 4161
[iii] AIR 2018 SC 4321
[iv] AIR 2014 SC 1863
The author is a student at Dharmashastra National Law University, Jabalpur
Image Credits: NDTV
Constitutional Law Society 
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