SAME SEX MARRIAGE / MARRIAGE EQUALITY

SAME SEX MARRIAGE / MARRIAGE EQUALITY                                                                                                          

                                               

Author : Aarti Rai, a student of Asian law college of ccs university.

               When, we talk about same sex marriage, it clearly says, the right to marriage for queer family or community in India . This topic mainly arisen or highlighted on 13th march 2023, a 5-judges of  constitution bench hearing. Marriage is an important element in the society in the perspective of politico-legal and socio-economic. It is legally codified under various personal laws. so, it is a controversial same as sensitive topic as well. We all aware third genders have been suffering from various discrimination. They have continuously fought for legal recognition of their rights.   

         NOW, 18 couples have petitioned the supreme court to legalize the same sex marriage. India could be a second nation to legalise same sex marriage. The first country was USA to legalise the same sex marriage, in Obergefell v. hodges case. The historic case decision by supreme court , which changed the lives of million of people.                       

INTRODUCTION                                                                                                 Same- sex marriage refers to marriages between two individuals of the same gender. This is an important rights  of LGBTQ+ individuals and the recognition and protection of their relationship.                                                          The Indian legal system does not recognize the same sex marriages. It claiming that same sex marriage “went against the religious values”.  There were major victory for LGBTQ+  rights in our country. The one of them, section 377 of the Indian penal code , which criminalized homosexuality , was struck down by the supreme court of india in 2018. However, decriminalizing of homosexuality did not means that it gave the right to marriage to the same sex community. Several cases have been filed to legalize same sex marriage. With hope, like section  377 of ipc is decriminalize , the court will overview and took right decision and the interpretation of law.  

Plea for marriage equality:

On November 14th 2022 , two same sex couple filed writ petitions in the supreme court seeking legal recognition of same sex marriages in india.
Case name : ( Supriyo a.k.a Supriya Chakraborty & Abhay dang v. uoi)
The first, petition was filed by Supriyo Chakraborty and Abhay dang. The second petition was by parth phiroze merhotra and uday raj anand.
In the case the petitioner argue that the section 4 (c) of the marriage act allow only a man and a woman to recognition as a married and this is discriminating the same sex couples by denying them matrimonial benefits like adoption , surrogacy, retirement etc.
The non- recognition of same sex marriage is violates the right to equality, freedom of expression, and dignity.
On march 13th, 2023 , CJI D.Y. Chandrachud referred the case to a 5-judge constitution bench. 

GOVERNMENT ON SAME SEX MARRIAGE:

Govt. stated that same sex marriage seeking recognition of relationship is not a fundamental right. 

•  In religious the marriage have always been done only between a man and a woman.

• “ The right to marry is not absolute and always subject to the statutory regime provided by the competent legislature.

• Right to privacy as a fundamental right , and demands protection of the identity of every individual without discrimination But, it cannot be extended to marriage.

• The consenting sex between two adult comes under the sphere of privacy, like that recognizing the relationship between the same two individuals as marriage comes into the public zone, and has a necessary public element. 

• The state said that the decision on same sex marriage can only be made in parliament because a democratic right of people to regulate by parliament not mandate by a court.

• If same sex marriage will be legalise then , it could raise several consequences in law, because there are total 72 categories of gender which fallen into the LGBTQ+ community.

• The government told on the statement of court 

• that “same sex will be cover under the special marriage act” that it is not possible for the court to interpret the special marriage act in isolation without touching personal laws.

Government is not into the favour of same sex marriage and their had several reasons and which is relevant.

Conclusion
The legalize of same sex marriage is still a struggling in court. Where several countries are legalise the same sex marriage, In india it is still called as unholy and unnatural.
According, to multinational survey conducted in 2023 by the pew research centre , 53 % of Indians expressed their support with 28 % of strong favour. Still 47% people against this. It is indeed to difficult task to amend personal laws to recognize the legality of same sex marriage. The court decision is still TBA.

REFERENCES
. Books : bare act ( the hindu marriage act)
                      constitution book
Cases: National legal service authority v. UOI 2014
                Navtej singh johar v. union of india 2018

             Naz foundation v. Govt. of delhi 2009
Online sources : you tube , google, Wikipedia.