Why is it in the news?
A supreme court bench led by chief justice DY Chandrachud issued notices to the centre and the attorney general of India seeking their response to two petition filed to allow solemnization of same sex marriage under the special marriage act,1954
One of the petitions argued that recognition of same sex marriage was only a sequel of Navtej Singh Johar judgement of 2018 decriminalising homosexuality and the Puttuswami judgement 2017 affirming the right to privacy as fundamental rights
The petition also argued that SMA was ultrawires to the constitution because it discriminate between same sex marriage and opposite sex marriage
The petition states that the act denies same sex couples both legal rights and social recognition because only after the marriage becomes legal, couples can be guaranteed right of wages, gratuity, adoption, surrogacy, succession, inheritance and taxation.
The petitioners emphasised that SMA ought to apply to a marriage between any two persons regardless of their gender identity and their sexual orientation. So, the petitioners wanted to make 1954 SMA act gender neutral
So, SC transferred the various pending cases from various HCs to itself.
What is the government stand
However, solicitor general Tushar Mehta said that as per the law marriage was permissible between a biological man and a biological woman
The acceptance of the institution of the marriage between two individual of the same gender is neither recognised nor accepted in any uncodified personal law or any codified statutory laws
What is the status of same sex marriages in other countries
A total of 32 countries around the world have legalised same sex marriages.
In US, the SC pronounced same sex marriage legal in 2015. Now, senate has also sanctioned same sex marriage legal
In 34 countries, definition of marriage has been fixed in their constitution that prevent marriage between couples of the same sex
Public opinion in India
According to a 2015 poll, 29% of Indian supported same sex marriages
According to 2019 poll by Mood of the Nation, 24% of Indian agrees with the same sex marriages while 62% disagrees
Marriage is the bedrock of family in India
In India, Hindu marriage is a matter of religious duties. It is a sacrament.
Marriage is not a social contract
Marriage leads to a good conjugal life with the purpose to procreate children and a duty towards the society
Among Hindus marriage is a union of two persons of different sexes to reciprocate their passion for sexual urge and aims at biological, emotional, social and spritual fulfilment
The marriage in Hindu must satisfy two conditions - gotra exogamy and sapinda exogamy even Hindu marriage act of 1955 bars marriages within 5 generation on the paternal side and three generation on the mother side but it permits marriage of cross cousin which is customary particularly in South India
The aim of Hindu marriage is to procreate children, to fulfil religious duties and enjoyment of sex
Among Muslims, marriage is a contract and its object is to promote normal family life
Islam discourages celibacy
Among Muslims marriage can be solemnised only after the proposal (Iajab) forwarded by bridegroom to bride and acceptance of the proposal (Qubul) by bride
Muslim marriage is based upon the doctrine of equality
Preference is given to parallel cousins and cross cousins
Conclusion
Although there are several countries which have legalised same sex marriage yet in our country where institution of marriage is rooted in our cultural ethos, any legalisation of same sex marriage would jeopardise the institution of marriage
Same sex marriage may lead to disease particularly HIV
India is still a developing country. It must not emulate advanced countries of the world. It must evolve in its own way.
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