THE CONFLICT BETWEEN SAME-SEX MARRIAGES & INDIAN VALUES

 

Just over the two years, when the Supreme Court partially decriminalized Section 377 of the Indian Penal Code, 1860, and decriminalized the consensual homosexual relations, the Central Government recently opposed a petition before the High Court of Delhi. The petition which has been opposed seeks the registration of the marriage between the same sexes and was filed by Abhijit Iyer Mitra who is a member of the LGBTQ Community. The petition seeks to recognize same-sex marriage in the light of Section 5 of the Hindu Marriage Act on the ground that it does not differentiate or distinguish between heterosexual and homosexual couples.

The Solicitor General namely, Tushar Mehta who is representing the Centre stated that the judgment of 2018 which decriminalized consensual homosexual relations is merely a decision, nothing less and nothing more of it.

When a constitutional bench of five judges led by then CJI Dipak Mishra held that criminalizing the sexual relations between adults of the same gender is not justified and is unconstitutional, then why this opposition has been made? Isn't contrary to the statutory provisions?

The petitioners questioned the court that if there is no statutory bar to the registration of gay marriage under the Hindu Marriage Act and Special Marriage Act then why these marriages are not being registered across the country? Doesn't it amount to discrimination against the community of LGBTQ? Doesn't it deprive them of equality which is their fundamental right?

However, Tushar Mehta argued that registration of gay marriages is not permissible due to the following two reasons-

·       The petition is asking to legislate which is not the role of the court

·       If any relief is granted in this context, it would be violative and contradictory of various statutory provisions

It was further stated by the Solicitor General Tushar Mehta that the registration of gay marriages cannot be done unless the court decides to do violence to several laws.

But whether love has any gender? Whether a character has any race? Whether compassion for each other has any religion? Whether gay marriages are a threat to the institution of marriage? Whether the orientation of sexuality is in any manner relevant to the unification of two souls?

Tushar Mehta stated that our Indian values and Indian society do not recognize these marriages which are sacrosanct between same-sex couples. Moreover, the legal provisions under the Hindu Marriage Act are regulating the marriages and prohibited relationships involving both husband and wife. But in the case of gay marriages who is a wife?

Mehta argued that the “culture of any country is codified in a statutory law like degrees of prohibited relationship, special or additional rights to ‘wife’, different age limits for ‘husband’ and ‘wife’, use of the terms ‘husband’ and ‘wife’ — which cannot be determined in same-sex marriage”. He further stated that these kind of marriages are not in conformity with the constitutional values.

The petition stated that the changes and amendments in the laws concerning marriage should be broad and secular

AUTHOR’S PERSONAL OPINION-

I would not say that I'm against same-sex marriage as everyone is entitled to equality and freedom. I believe that everyone is the creation of God and are thus equal. But our country takes a long time to acknowledge things. For instance, people took so much time to acknowledge equality for women, then acknowledging the fact that discrimination based on race, color, caste, sex, or national origin is not justified. Despite so many judicial precedents, amendments, legislation, and discussions, not everything taking place in the society conform with the constitutional values.

With the changing times, the values and laws also change. If it is deemed to be good for society then the justice system could abolish the death penalty also and could permit same-sex marriages.

I would like to raise some relevant questions in this context that needs to be pondered upon as to why the people from LGBTQ Community are not able to speak up for themselves and why this PIL was filed for addressing this concern? Do they fear reprisals and counterattacks? Whether religious institutions have created problems for these people or vice-versa? Why homosexuals are denied equality when they are born like us and not created by humans? Does same-sex marriage have anything to do with the integrity of the nation? Whether the marriage is between a spouse and spouse or gender and gender?

Well, the power of love is that it sees all the people and is not influenced by gender or religion. It should be noted that same-sex marriages have not created problems for religious institutions. The religious institution is the barrier to the marriage of same-sex couples.

However, in the eyes of some people, it may be a human wrong that results in loss of control over the integrity of the nation. It may be wrong for them that takes away the integrity of the citizen’s rights.

I understand that love should never mean having to live in fear or terror. Gay people marrying each other are not a threat to the marriage institution but rather the unforgiveness, hate, infidelity, and cold-heartedness is.

Gurneet Kaur

BBA LLB (H)

ICFAI UNIVERSITY, DEHRADUN

Disclaimer: This article is the personal opinion of the author. The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of any Indian Government or any other Government of the world. This article is only opinion and does not render ant personal or professional advice.