Centre Oppose Recognition Of Same-Sex Marriage: Is It Fair?

Recently, the Supreme Court collected and directed towards itself all pending petitions regarding the legal recognition of same-sex marriages across the country. An SC bench led by Chief Justice DY Chandrachud asked the Centre to submit a response to all related petitions by February 15 and ordered that all petitions be listed in March.

Now, the Centre in reply opposed the petitions seeking recognition of same-sex marriage under the law. On Sunday, March 12, the Central government filed an affidavit in the SC saying that living together as partners and having a sexual relationship with same-sex individuals cannot be compared with the Indian family unit concept.

The affidavit read:

"Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender. Living together as partners and having a sexual relationship by same-sex individuals (which is decriminalised now) is not comparable with the Indian family unit concept of a husband, a wife, and children, which necessarily presupposes a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two—who are reared by the biological man as a father and the biological woman as mother." 

Centre On Same-Sex Marriage

It pointed out that marriage is a social institution into which several rights and liabilities flow. When the Centre says this, it is very well aware that denying recognition of marriage means depriving individuals of these rights and liabilities. It is clearly discriminative! However, reasoning it to be culturally inappropriate or doesn't align with conventional binary marriages, only further contradicts the principle of Indian culture. 

SheThePeople spoke to Ritu Aher, who identifies herself as a queer and is a member of the Tweet Foundation, an NGO working with the Maharashtra government for the Transgender community. Aher said, "This is something that goes against my culture. Being an Indian, society has taught me that people must have a sexual relationship only after marriage, which is called Bhartiya Sanskriti (Culture). We are permitted to have sexual relationships, but why not get married? Isn't that hurting culture? Why does the LGBTQIA community have to suffer for everything? We too should have the right to get married. Sanskriti cannot be brought into everything." Aher pointed out how the government is being unfair under the name of culture. 

The Central government also pointed out that the registration of same-sex marriage has more ramifications than simple legal recognition. What could be the consequences if same-sex marriage is recognised? The possible consequence could be challenging traditional values and beliefs, which can lead to social and political opposition. But that's the whole point, challenging the prejudices of the existing system and becoming progressive. If that will bring backlash from conservative groups of society, it is worth it to talk about. The positive part of legalising same-sex marriage can put a full stop to the hardship the couple goes through. It can provide equal rights and benefits to same-sex couples, such as inheritance, property ownership, tax benefits, and medical decision-making. One of the petitioners- Supriyo Chakraborty and Abhay Dang, are two gay men living in Hyderabad. The couple has been fighting for almost 10 years. According to them- the current law denies same-sex couples both legal rights as well social.

The government perceives that legalisation will violate the existing personal as well as codified law provisions such as ‘degrees of prohibited relationship’ and ‘ceremonial and ritual requirements’ under personal laws governing the individuals. It also made the argument that PIL 'seeks to rewrite the legislative text and intent under various codified statutes governing marriage'. It doesn't seem anything wrong. If something is flawed and not considered at the time of building it, with time it needs to evaluate. The government's stance is just backward and regressive. The centre has been making arguments that acts like Domestic Violence Act may not be workable in a same-sex marriage. Why it cannot be? At the end of the day, in every relationship, there are two humans involved, and irrespective of their genders, conflicts are very much unavoidable. Even they need to be protected by laws like Domestic Violence Act.

Speaking to SheThePeople, Supreme Court Advocate Thulasi said,

"The concern of the petitioners and generally of the queer community in the country is that without legal recognition of the marriage of a couple belonging to the sexual minority, many of the rights enjoyed by heterosexual couples will be denied to homosexual couples, and that is a legitimate concern. The central government's affidavit is not very surprising but unfortunate. It's not surprising because the centre has been taking a consistent stand of holding up the idea of the sanctity of marriage and denying legitimate, valid constitutional rights of people. They are taking the stand without really exploring what sanctity is or how protecting the so-called sanctity at the same time involves denying valuable rights, dignity, and equality, which are protected under Articles 14 and 21 of the Indian Constitution. How is the sanctity of marriage worth protecting when these rights are at stake?"

Unfortunately, marriages are patriarchal in nature, but it does bring security and provides individual protection and other social rights and benefit. It may be a subjective and personal matter, but as Carol Hanisch said personal is political. However, Neil, who identifies himself as a transman, said, "Marriage is a subjective matter and everybody's right; marriage is not required for a relationship, but when legal same-sex marriage will validate us that we are longing for, we are fighting. The centre is just being unreasonable."

Meanwhile, Sharif Ragnekar, the author of the book Queersapein spoke to SheThePeople and said,

"The centre has been perpetually opposed to us getting any sort of civil rights, dignity, or security, economic or otherwise. That's been their stand even in the case of 377. They said we shouldn't be considered criminals, but they also didn't provide us with any other rights. I have great faith that the courts will uphold the constitution, which is greater than any political party harmony that we may have in this country or any political legislation or view. We have a constitution and courts because political parties and elected representatives may not always be representative of the people at large." Ragnekar has greater belief in Court. 

Fingers crossed over what Ragnekar has been saying. Now, the aspiration of same-sex couples lies with Court. The Court's decision will legitimate and validate their preferences. This will be a ticket of acceptance. Above all the stereotyped tag of the LGBTQ community as a sexual beast or all about orgy parties could be washed somewhat. Besides, it's about rights, one cannot confiscate it from an individual just because they have a different sexual orientation than the conventional one.

Authored By-Snehal Mutha
muthasnehal535@gmail.com

Assisted By- Kalyani Ganesan
kalyani.ganesankg@gmail.com

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