Explainer: Marriage or love or having a relationship is a person’s own choice, there cannot be any coercion on this. Gay marriage has legal status in many countries of the world, but in India this type of relationship has not yet got legal status. The petitions related to this are being heard in the Supreme Court and the Central Government is opposing it. On Monday, the Supreme Court of India decided to refer the issue of legalizing same-sex marriage to a five-judge bench, which will begin hearing the case on April 18, following objections from the central government. A day earlier, the Center had filed a detailed affidavit on same-sex marriage, in which it was strongly opposed by the government.
The Indian government may have objected to legalizing same-sex marriage, but same-sex marriage is legal in the US, Canada, UK, Australia, Brazil, Cuba, Argentina, Denmark, Finland, France, Germany, Malta, New Zealand, South Africa and Sweden. has legal status.
Why is the central government opposing
A day after the Center opposed the Supreme Court legalizing same-sex marriage, India’s Law and Justice Minister Kiren Rijiju said the government does not “interfere” with the personal liberty and activities of people but with the institution of marriage. The matter concerned is a matter of policy. Rijiju said, ‘The government is not interfering in the personal life and activities of any person, so no one should have any illusion about it. When it comes to any issue related to the institution of marriage, it is a matter of policy.
Regarding the petition filed by the Central Government in the Supreme Court, it said that this would affect the balance of personal laws and acceptable social values. Despite being legalized through Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right to same-sex marriage under the laws of the country. The hearing on this matter will start from April 18 and the great thing is that there will be live streaming of this matter as well.
Solicitor General Tushar Mehta, appearing for the Central Government, said that when two homosexuals get married, they will adopt children and the question of adopting a child will arise. To this, CJI Chandrachud said, ‘It is not necessary that the adopted child of a same-sex couple should also be same-sex.’
– The Central Government strongly protested in the Supreme Court regarding the demand for recognition of same-sex marriage and has sought to dismiss the petitions related to it. The Center has submitted a 56-page affidavit for this.
Center said, even though the Supreme Court has decriminalized Section 377 of the IPC, it does not mean that the petitioner will claim a fundamental right to same-sex marriage.
The Center has termed same-sex marriage against the concept of Indian family and said that same-sex marriage cannot be compared with the concept of children born to husband and wife of an Indian family.
– The central government says that the law of the country also says that same-sex marriage cannot be recognized. Because the definition of husband and wife is biologically given in it and according to that both have legal rights as well. How can husband and wife be considered separately in case of dispute in same-sex marriage?
In the court, the Center said, after giving legal recognition to same-sex marriages, a lot of complications related to child adoption, divorce, maintenance, inheritance etc. will arise. The legal provisions in the country are based on marriage between a man and a woman.
On 6 September 2018, the Supreme Court said that homosexuality is not a crime and homosexuals have the same basic rights as any normal citizen. The court had said that everyone has the right to live with dignity.
– In 2018, the Supreme Court had repealed Section 377 of the IPC, after which it was said that the relationship between two homosexuals with mutual consent would not be considered a crime.
Then Chief Justice Deepak Mishra had said that whatever it is, it should be accepted in the same form. Homosexuality is not a crime and people should change their thinking about it.
The Central Government has presented its arguments in broad terms as to why it is better to leave the matter to the Parliament to deliberate and decide.
The Central Government says that there can be no fundamental right to recognize any particular form of social relations. The country has legal recognition of marriage as a union between a “man” and a “woman” based on marriage between opposite sexes.
Intrinsically linked to the acceptance of Indian society on the basis of its cultural and social values, which are recognized by it.
The Center says that considerations of social morality are relevant in considering the validity of the legislature.
Considering its social value, the State has a strong interest in recognizing heterosexual marriage to the exclusion of other forms of marriage/unions.
Legal recognition of marriage limited to heterosexual marriage has been the norm throughout history and is fundamental to both the existence and continuity of the state.
– Does not recognize these other types of marriages or unions or individual understanding of relationships between individuals in society, but these are not illegal.
Not giving legal recognition to same-sex marriage – In terms of Article 14, same-sex relationships and heterosexual relationships are clearly distinct categories, which cannot be treated as equal.
The SC judgment decriminalizing same-sex relationships cannot be construed as conferring a fundamental right to be recognized in marriage under Indian personal laws, whether codified or otherwise.
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