The most controversial and most demanded examination of rights of this year so far is undoubtedly the recognition of the homosexual marriage, marriage between same gender or sex. The question of legalization to marry arose when a series of petitions were filed in the supreme court demanding for the recognition of same sex marriages. A Bench of five judges was constituted to examine this matter. In India, Unlike other countries there is a social stigma regarding the concept of homosexuality.
Prior 2018 homosexuality was considered as an offence under section 377 of the Indian penal code, after the land mark decision in Navtej Johar, the practice of homosexuality was decriminalized. Now that the Homosexuality is decriminalized, The people belonging to the LGBTQ community are before the apex court for their right to marry. As of today there has been lot of debate and opinion regarding this matter both in the court and in the general public.
Partner
The Counsels appearing for the petitioners contended that problem in certain institutions where homosexuals could not claim certain benefits which are available to others such as Insurance, Rental accommodation etc. In my opinion, the solution to this would be insertion of the word ‘partner’ with the existing options in the question of availing Insurance, Provident fund etc. Here, at the time of naming a partner there ought to be no question regarding the gender of the person.
Biological Man and Woman
The question of man and women was argued by The Solicitor General(SG) where he contended that biological man literally means Biological man there is no question of notion in it, disagreeing with this submission the Chief Justice was of the opinion that the concept of Gender determination does not merely lie on the genitals of a person, it is said to be more complex.
The Submission of SG could have been in the purview of general society that is The complexity of gender determination is not in the society but is a opinion of few people. The society always accepts the person on the basis of genital, if he has a penis (male genital) then he will be considered as a man and vice versa,
So, The complexity in the question arises only when a person of one gender identifies himself as other this is due to upbringing, environmental conditions, peer groups etc.
Special Marriage Act
The SM act is an legislation which deals with the marriages which are civil in nature and it does not have a place for religion, caste, race etc.
The contention of the petitioner is to legalize same sex marriage under the umbrella of rights and to be dealt under the Special marriage act.
To this contention the Attorney General contended that the Special marriage act is a law which refers to the institution of marriage not the sex of an individual.
The AG and SG further contended that recognition of same sex marriage is not possible without making changes in the legislations which are already a law and it is a very laborious task to change the term from ‘man’ and ‘woman’ to ‘persons’ in all legislation and would probably lead to ambiguity and loopholes.
Domain of the Parliament
Both The Solicitor General and the Attorney General were of the opinion that the recognition of the same sex marriage should be in the hands of the legislature and only the legislature in future can make marriage between same gender marriage a legal right.
This Contention was opposed by the petitioners, to legalize, it was in the hands of the court because it is the need of the hour and people belonging to the said community cannot rely on parliament to make laws when it can be legalized in the court of law.
Conclusion
The question of same sex marriage strikes directly at the core of Indian culture and values of the society and the court is bound to follow the law. The bar council and other organizations are of the opinion that legalization of same sex marriage will lead to lot of uncertainty in the society. Majority of the public in their opinion are opposed to the debated marriage. The arguments are still going on.
Thank You for your time.
KISHORE KULKARNI
BA LLB Student