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Supreme Court of India has rejected the plea for same sex marriages in the country. Although it hasn’t criminalised co-habituation among individual belonging to the LGBTQ community. Some key points that are too be understood in order to analyse the verdict is essential. A petitioner appealed for modifying the SPECIAL MARRIAGE ACT and include same sex marriages in it.

Need for same sex marriage

To ensure the benefits that a heterosexual couple retains such as:

  • Adoption
  • Succession
  • Pension benefits
  • Insurance
  • Rental accommodation
  • Buying property
  • Ensuring Constitutional right of equality (Article 14), dignity (Article 15), (Article 16), life (Article 21) and promoting  fraternity.

Demerits of same sex marriage

  • Meaning of Marriage: Marriages in India hold immense importance in religious and societal terms. Bringing any change in its definition or concept might deform the religious beliefs of the country and hence will challenge our secularity as well.
  • Gender Ambiguity: In a same sex marriage, it is difficult to realise ‘who is who’ i.e. who is the husband or wife. such confusion create problem while deciding responsibilities between the two.
  • Cause of Divorce: Gender confusion creates problems while deciding who wants to divorce whom. if the responsibilities aren’t defined, they who is going to blamed for not fulfilling the same?
  • Too much Confusion for the Upcoming youth: Same sex marriage is a very hot and controversial topic. Such topics always entice the youth and they sometimes want to fit in these trends without realising their actual identity or psychology. So, our upcoming generation might suffer from identity crisis.
  • Incest Legality: Legalising same sex marriage will motivate those who advocate for incest (within  family) marriages. Such partnerships lead to many genetic disorders which in turn will deteriorate the health of the society. 
  • Child care and development:  Coming to development, a proper growth requires both the parents i.e. a mother and a father. and these senses of duties evolve with physiology (being biologically male or female). But with same sex marriages the child will be confused with how to address whom. 

Who opposes the petition

  • Central government,
  • National child rights body NCPCR (National Commission for Protection of Child Rights),
  • Jamiat-Ulama-i-Hind, an Indian body of Islamic scholars.

What is Special Marriage Act ?

The Special Marriage Act provides a secular and non-discriminatory legal framework for marriage, and allows individuals to marry without being subject to the traditional customs and rituals associated with their respective religions. In the definition itself, there is no mention of male and female. The petitioner pointed this out at appealed to include same sex marriage in SMA. Also it was pointed out that if union doesn’t see religion, caste, borders then why gender is an exception.

SC’s response:

  1. SMA cant be stroked down.
  2. SMA is secular legislature
  3. CARA (Central Adoption Recourse Authority) discriminate against atypical parents.
  4. Next decision needs to be taken by the parliament
  5. Many Acts in India:
  • Special Marriage Act
  • Foreign Marriage Act
  • Hindu Marriage Act
  • Transgender Person Protection Rights Act, Would have to be revised

SC’s provision for the queer community

  1. Recognized civil union
  2. Transgender persons in heterosexual relationships have the right to marry
  3. No harassment of queers by summoning them to the police station to enquire about their sexual identity
  4. No person shall be forced to undergo any hormonal therapy
  5. Ensure there is no discrimination in access to goods and services.
  6. Sensitize the public about queer rights.
  7. Create a hotline for the queer community.
  8. Create safe houses or Garima grih for queer couples.
  9. Ensure inter-sex children are not forced to undergo operations.

GLOBAL STATUS for the LGBTQIA+++ community

  • Currently, 32 countries have legalized same sex marriage
  • Taiwan is the 1st Asian country to legalize the same

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