On April 18, a five-judge Supreme Court Bench, headed by the Chief Justice of India D.Y. Chandrachud, is scheduled to hear a series of petitions seeking legal recognition of same sex marriage even as a host of statutory organisations, religious bodies and NGOs have rushed to court seeking an opportunity to be heard. Their submissions touch upon various issues from the definition of “marriage” to the “psychological impact” growing up with two men or two women as parents would have on children. While some have cautioned judges that Indian society is not ready to accept same sex marriage others have linked it to sexual liberation movements in western countries.
Here is a sample of the arguments made so far through petitions, affidavits and applications:-
Main petitionersSupriyo and Abhay Dang, represented by senior advocate Menaka Guruswamy, advocate Arundhati Katju and Govind Manoharan, argue that the non-recognition of same sex marriage amounted to discrimination that struck at the root of dignity and self-fulfillment of LGBTQIA+ couples. They reminded the court that LGBTQ+ citizens form 7 to 8% of the population of the country. The petitioners point out that the legal protection available in about 15 legislations guaranteeing the right of wages, gratuity, adoption, surrogacy, etc, were not available to LGBTQIA+ citizens.
In a related vein, theDelhi Commission for Protection of Child Rights (DCPCR) said that same sex couples would make equally good parents as heterosexual parents. By depriving legal status to homosexual marriages, the state is denying the legal security of dual parenthood and guardianship to the child. Since the Netherlands’ legalisation of same-sex marriages in 2000, over 34 countries have legalised same-sex marriages either through legislation or through court decisions. At present more than 50 countries allow same-sex couples to legally adopt children. A 2020 study by the American Sociological Review show that academic results of children raised by same-sex parents from birth outperformed children with heterosexual parents.
The stand of the government
TheUnion government has said that the idea of same sex marriage is merely an “urban elitist view”. The judicial creation of a “new social institution” like same sex marriage cannot be claimed as a matter of right. It is the Parliament and not the courts that have to decide on same sex marriages, which is a threat to the “holy union” of marriage between a biological man and woman in India.
The State of Madhya Pradesh has also sought to intervene in the case, saying it was a “necessary stakeholder”. It said the legal recognition of same sex marriage would “seriously affect” the interests of the residents of Madhya Pradesh.
Additionally, the National Commission for Protection of Child Rights (NCPCR), unlike its Delhi counterpart, argued that same sex marriage would violate the provisions of the Juvenile Justice Act. The Juvenile Justice Act of 2015 prohibits a single man, let alone two men, from adopting a girl child. The NCPCR highlighted a study by the Catholic University of America which said that the emotional problems suffered by children of same sex couples were twice more than of children living with heterogenous parents. It said a “proper legislative system needs to be adopted regarding same sex couples”.
Religious bodies and NGOs
The Shri Sanatam Dharm Pratinidhi Sabha opined that the concept of same-sex marriages is “catastrophic” and that it would have a “pernicious effect” on Indian culture and society. The Hindu body quotes the Vedas, saying “those who have wives truly have a family life; those who have wives can be happy; those who have wives can have a full life”. It refers to stanzas from the Manusmriti that state “to be mothers were women created, and to be fathers, men”.
The Jamiat-Ulama-i-Hind also opposed same-sex marriage by stating that marriage between opposite sexes is like the ‘basic feature’ of marriage. “Islam’s prohibition of homosexuality has been categorical from the dawn of the religion of Islam itself. LGBTQIA+ movement dates back to the western sexual liberation movement,” the Jamiat said.
Similarly the Telangana Markazi Shia Ulema Council also claimed that persons raised by same-sex couples were “much more likely” to suffer from depression, low academic achievement, unemployment and are more likely to smoke marijuana etc. It said that in the “West/Global North”, religion has largely ceased to be a source of law and plays very little role in public life. On the other hand, religion plays an instrumental role in shaping personal law, along with social norms and family ties in India.
Additionally, the Akhil Bhartiya Sant Samiti said to “keep husband and wife together is the law of nature. ‘Kanyadan’ and ‘Saptapadi’ have basic importance in Hindu marriages.” The reiterated that same sex marriage is “totally unnatural”.
Bringing in a different angle, the Kanchan Foundation has submitted that deep-seated stereotypes and mental barriers that have been constructed over centuries cannot be dismantled by a mere judicial ruling. It says that Indian society requires more time to be sensitised in order to accept same sex unions and understand their impact on society.
The Call for Justice NGO argues that “marriage flows from natural law” and the “millennia-old institution” of marriage between a man and a woman is recognised across the world. Any amendments in the institution of marriage “must flow from popular will as expressed through the legislature”.
Som Thomas, who introduced himself as a retired cis-gender male engineer, said laws regarding marriage must not be changed to accommodate the “insubstantial concept” of same-gender or gender-neutral ‘spouses’, since marriage is substantively male-female sexual intercourse of a singular kind. He said that a man-woman sexual intercourse was in a “category of its own”. “The necessary condition for marriage is one-man-one-woman sexual intercourse with the possibility of simultaneous climax through stimulation of and by the sexual organs alone, and no other limbs or artifices. No other sexual intercourse bears resemblance either to the physical act or to its most significant possible consequence, namely conception,” Mr. Thomas argued.