Some of the burning issues created in India’s Special Marriage Act 1954 and the Hindu Marriage Act 1955 are missing in the ongoing public debate about same-sex marriages and Supreme Court proceedings. And there are many pre-conditions for the rite of marriage but chief among them is the ability to beget children.
The ability to produce children is very important in the matter of marriage as ‘impotent’ is a ground for divorce. The same condition is in the original draft of Hindu Code Bill First Law Minister Dr. B.R. Written by Ambedkar. For civil marriage also they envisaged the concept of “bride” and “bride” as the draft clearly mentions a pre-condition for marriage that – At the time of marriage, the bridegroom must have completed eighteen years of age and the bride must have completed fourteen years of age. This implies that Dr. Ambedkar, the founder of marriage laws in India, never contemplated same-sex marriage.
The Special Marriage Act 1954 and the Hindu Marriage Act 1955 govern the marriage system in India. Parliament enacted these laws by exercising powers under Articles 25, 246 and the Seventh Schedule. There are also religion specific laws to regulate marriages in India.
The Supreme Court is holding a variety of hearings petition To declare that the Special Marriage Act, 1954 should apply to marriage between any two persons regardless of their gender identity or sexual orientation or to declare the Special Marriage Act, 1954 as unconstitutional. We are of the opinion that the matter should not go to court for two reasons; Firstly, because the conditions imposed by Parliament by enacting the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 are enacted by Parliament in exercise of a legitimate source of power conferred by the Constitution and this exercise is not in violation of the fundamental rights of the Constitution. Part 3 and the second reason why the petitioners are appealing to the Supreme Court as their first relief as claimed in their lead petition, Supriyo v. UOI, is to recognize a new category of marriage which will eliminate one. Gender difference as specified by section 4(c) of the Special Marriage Act, 1955.
The powers of Parliament with respect to marriage and population are provided by the Constitution under the Concurrent List of the Seventh Schedule and therefore Parliament is competent to make laws relating to marriage and population. By recognizing same-sex marriage, the Supreme Court will not be interpreting the marriage law, but it would be tantamount to rewriting the laws as same-sex marriage is not specifically or recognized by the Hindu Marriage Act. Two, discrimination based on sex for marriage is not a violation of non-discrimination on the basis of sex under Article 15 of the Constitution and also it does not violate privacy or sexual orientation. The act implicitly seeks the purpose of continuing the human race through marriage and the procreation of children. Also, any change in the marriage law or the status of marriage will have a wider impact on the society as marriage is a fundamental institution of the society and therefore comes under the exclusive jurisdiction of the Parliament and not the Court.
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Does it come under the purview of the court?
Article 21 states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” It has been widely interpreted by courts to include various rights relating to personal life and human dignity, including the right to privacy, right to health and right to livelihood. The right to marry is generally considered a civil right. Civil rights and fundamental human rights are two different rights. Is same sex marriage an inherent and inalienable right? Is it a natural right? and in our opinion, they are neither inherent or inalienable nor natural rights. Therefore, the right to live together and the sexual orientation of choice towards the same sex or the right to marry a partner of one’s choice can be denied or regulated. Even for heterosexual marriages, we have restricted the degree of kinship and marriages between those kinships may or may not be recognized.
While fundamental rights are inherent and inalienable, civil rights are not. Rights of individuals governed by the constitution and status (and to be free from discrimination) in many settings, including education, employment, housing. Marriage is one of these settings.
In Shafin Jahan v. Ashokan KM and others (2018), the Supreme Court held the right to marry the person of one’s choice as an integral part of Article 21 of the Constitution. However, it is worth noting that this case involved an interfaith heterosexual marriage. When it comes to same-sex marriage, the same interpretation of Article 21 will not be permitted as the law does not recognize same-sex marriage and same-sex persons do not have the right to marry first and hence, they Will not have the right to marry a person of their choice within the same gender.
One of the conditions of the rite of marriage is that neither party should be incapable of having children. The above condition is found equally in both the Special Marriage Act and the Hindu Marriage Act. Therefore, the above situation has nothing to do with religion.
Section 4(b) The Special Marriage Act stipulates that: neither party is- (i) incapable of giving valid consent to the marriage (marriage) in consequence of illness; or (ii) though capable of giving a valid consent, is suffering from mental disorder of such or such an extent as to be unfit to “marry and beget children”. (emphasis added) The same conditions exist in Section 5(b) of the Hindu Marriage Act.
It may be argued that the Special Marriage Act does not explicitly require biological capacity to produce children for marriage and that the condition of the phrase “and beget children” is linked to the requirement of a sound mind. But this would be a misinterpretation of the law as a mental health condition does not bar a person from biologically being able to have children. Mental health and physical health, including reproductive health, are separate. There must be a purpose for having the condition of “procreation” as a condition of marriage.
Since marriage is linked to procreation for the continuation of the human race, it is neither a religious nor a legal requirement. It is a matter of civilization. Civilization cannot survive unless people procreate and therefore this condition can be reasonably imposed by the Parliament to recognize the marriage. It does not discriminate against people on the basis of their sexual orientation but on the basis of their fertility. Since same-sex couples cannot produce children, they cannot be married under the current system.
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Is there a violation of the right to privacy?
Is procreation a condition for marriage a violation of the right to privacy? No. It’s not like that. This is because the state is not interfering in the private affairs of the citizens; These are the social matters of the citizens which are still being debated. The procreation of children is a social norm for the continuity of civilization, and is therefore a social matter. Furthermore, the state cannot be expected to destroy its civilization. While marriage is a civil right and sexual orientation can be said to be a private right, the procreation of children is a social and civilizational obligation. And there is a legitimate expectation of the state to ensure that society continues. In fact, people are quite concerned about the decline in birth rates in some countries.
Since offenses related to sexual activity between same-sex people have been outlawed, same-sex couples cannot ask for their union to be recognized as a marriage without meeting valid conditions enacted by Parliament Are.
Therefore, non-recognition of same-sex marriage does not violate the rights of LGBTQ persons. Sexual orientation and marriage are two separate rights. The first is a private right protected by the 14th Amendment in the United States, as held by the 2003 US Supreme Court decision in Lawrence v. Texas and Puttaswamy (2017) and the Supreme Court of India in Navtej Singh Johar (2018) Was and the other one is civil rights. Power which Parliament has the power to regulate.
Unlike the United States, our constitution does not guarantee absolute freedom to citizens, allowing the state to regulate certain freedoms. India is not a country of unrestricted freedom, which means that private sexual activity between consenting adults may be subject to regulation in the interest of public health, decency or morality. Consequently, the recognition of same-sex marriage is a matter that falls within the jurisdiction of Parliament as it would require a relaxation of an existing but valid condition or a new condition for the recognition of marriage, and is subject to consideration by the Supreme Court. Despite the exclusion of sodomy from the category of crime, it is a personal right.
In addition, India is a country of protective discrimination. Recognizing same-sex marriage would end the legal differences between men and women, which are necessary to maintain protective discrimination on the basis of gender, as women have always been recognized as a weaker section in India. This concept is clearly described in Article 15 of the Constitution – (3) Nothing in this Article (15) shall prevent the State from making any special provision for women and children.
All these important aspects need to be discussed by Parliament in order to determine the feasibility and assess the impact of recognizing same-sex marriages.
(Edited by Prashant)