This is a big blow to those demanding legal recognition of same sex marriage. On Thursday, January 9, the Supreme Court refused to reconsider its old decision. The bench of 5 judges said that they have not accepted the old decision of not recognizing same sex marriage.
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After the recent decision of the Supreme Court, are all avenues of same sex marriage closed in India, why does Modi government not want gay marriage; Will know in today’s explainer…
Same sex couple Saugata Basu and Mayank Kalra at their home in Bengaluru. The picture is of 11 February 2023. (Photo: AFP)
Question-1: What decision did the Supreme Court give on same sex marriage in 2023? answer: On October 17, 2023, the Supreme Court refused to give legal recognition to same sex marriage. During this time, the bench of Chief Justice DY Chandrachud, Justice Hima Kohli, Justice Sanjay Kishan Kaul, Justice Ravindra Bhatt and Justice PS Narasimha heard the case.
According to Supreme Court Senior Advocate Virag Gupta, 4 important things came to light in this decision…
1. Change in law necessary for the right to marry: All the judges had given transgenders the right to marry. Homosexuals were also given freedom to have their own partners. But the court said that to implement these rights the law will have to be changed.
2. Difference of opinion among judges on child adoption: There was a difference of opinion among the 5 judges of the Constitution Bench regarding giving civil rights to same-sex couples. Two judges ruled in favor of same-sex couples living together and adopting children. Whereas in the decision of three judges given by majority, homosexual couples cannot get such rights without law.
3. Government has the right to amend the law: A special marriage act has been made for marriage in the country. Under this, people of two different religions can get their marriage registered. In this, only a man and a woman can marry each other. There is no provision for marriage between man-man and woman-woman. Parliament has the right to amend this law.
4. Preliminary investigation before filing FIR: According to Articles 14, 19 and 21 of the Constitution, people have the right to life and equality and there cannot be any discrimination against them. For this, the Supreme Court said that there cannot be any kind of coercion against gay couples. It is necessary to conduct a preliminary investigation before filing an FIR against them.
Same sex couple Abhay Dang and Supriyo Chakraborty. He is one of the many petitioners in the Supreme Court demanding recognition of gay marriage.
Question-2: What were the arguments of those demanding reconsideration of this decision? answer: US-based lawyer Udit Sood was one of the 52 petitioners demanding legal status for same-sex marriage. He had filed the first review petition against the Supreme Court’s decision on 2 November 2023. This petition was regarding the decision of the Supreme Court on 17 October 2023, in which same sex marriage was refused legal recognition. 4 main arguments were given in the review petition….
- Due to non-recognition of gay marriage, full benefits of basic rights like gratuity, adoption, surrogacy are not being provided.
- Gay couples are facing practical difficulties in opening a joint account and buying a house in the society.
- Section 4 of the Special Marriage Act allows any two citizens to marry, but sub-section (c) allows marriage only between men and women. This is against equality.
- The law should be made gender neutral by recognizing gay marriage.
Due to these arguments, a bench of 5 judges in the Supreme Court agreed to hear the review petition.
Question-3: What happened in the Supreme Court on Thursday during the hearing on reconsideration and what will happen next? answer: On January 9, a five-judge bench of the Supreme Court refused to give legal recognition to same-sex marriage. This petition was heard by the bench of Justice BR Gavai, Justice Surya Kant, Justice BV Nagarathna, Justice PS Narasimha and Justice Dipankar Dutta in its chamber. The bench believes that the old decisions were in accordance with the law.
On January 9, the Supreme Court issued an official notification and refused to hear the review petition.
However, in some rare cases, petitioners have the option to file a curative petition after the review petition is rejected. This petition can be filed in the Supreme Court after the review petition is rejected. It comes under Article 137 of the Indian Constitution and is filed only in rare circumstances. There are 3 conditions for this…
- There may have been negligence on the part of the court in giving its verdict.
- The judges of the court may have given biased verdicts.
- The Supreme Court may have suggested a curative petition to change its own decision.
Senior Supreme Court Advocate Virag Gupta said,
There was no negligence on the part of the Supreme Court in the review petition of same sex marriage. Therefore, there is no chance of success in the petitioner’s curative petition.
Question-4: Same sex relationship has become legal, then why are homosexuals adamant for the right to marry? answer: In India, under Section 377 of the IPC, before 2018, same sex relationship i.e. physical relationship between a boy and a boy and a girl and a girl was a legal crime. But in September 2018, a bench of five judges of the Supreme Court abolished this legal provision.
After this, same sex relationships got legal recognition in India. This means that now boy-boy and girl-girl can legally have physical relations with each other, but still they cannot legally marry. Due to this, they are forced to remain hidden and live a dishonest life. That is why such couples want the right to marry.
Question-5: Why does Modi government not want same sex marriage to happen, what are its arguments? answer: In October 2023, the Central Government had given 2 main arguments against same sex marriage in the affidavit…
- The traditional concept of marriage consists of biological man, woman and child. This cannot be tampered with. The way gay couples live as partners and have sex cannot be compared to the Indian family unit. In India, there is a matter of a man being the husband, a woman being the wife and the physical union of both of them giving birth to a child.
- Recognizing same sex marriage will cause a complete upheaval in the system of personal law.
On December 14, 2024, Union Transport Minister Nitin Gadkari said in a YouTube podcast, ‘Same sex marriage will destroy the social structure.’
Political expert Rashid Kidwai says that Modi government does Hindutva politics in the country. Same sex marriage is considered wrong in Hindu society and Indian culture. Therefore, Modi government does not want to take any decision which will affect its Hindu vote bank.
Rashid Kidwai said,
BJP has always opposed western civilization. Same sex marriage is also a gift of western civilization. This could put Indian culture in danger, which is why BJP hesitates to support homosexuality.
Question-6: What is written in Indian culture and scriptures on same sex marriage? Answer: Same sex marriage and relationship have been mentioned at many places in Indian culture…
- There is a provision of different punishment for same sex relationship or marriage in verses number 367 to 372 of the 8th chapter of Manusmriti. Like- ‘If a girl has sex with another girl, she will be fined 2 coins and given 10 lashes. If an elder woman does this to a girl, her head will be shaved and she will be made to sit on a donkey and be taken around the village.
- Oral sex and same sex relationships are mentioned in the 9th chapter of Part-2 of Kama Sutra. However, this book does not support same sex relationships.
- There are many such artefacts in Khajuraho temple, where women are seen in groups or having sex with men. Some scholars believe that same sex relationships were legal in India at that time.
United Hindu Front workers protesting against same sex marriage. He says, ‘A sacred institution like marriage will not be allowed to be destroyed.’ (Photo: AFP)
Same sex marriage and relationship have also been mentioned in Muslim religion. According to the Quran, ‘Same sex marriage and relationship are prohibited.’ Islamic scholars say that this is against Islam.
At the same time, according to the Roman Catholic Church of Christianity, ‘Same sex marriage and relationship is a free thought.’ Along with this, it has also been described as a sin. The city of Sodom is mentioned in the Bible. According to which, ‘The men here wanted to rape even the angels. After which God himself destroyed this city.
Apart from this, there is no mention of same sex marriage or relationship in Sikhism.
Question-7: What is the legal status of gay marriage around the world? answer: Talking about the legal status of gay marriage, there are many countries around the world, where it has different laws and beliefs…
- First: The country which has allowed gay marriage.
- Second: Countries where gay relationships are allowed but gay marriage is not allowed.
- third: Countries where both homosexual relations and homosexual marriage are banned.
According to The Guardian report, homosexuality is not considered a crime in 120 countries of the world, but same-sex marriage is allowed in only 36 countries. This means that gay relationships are allowed in 84 countries of the world but gay marriage is not allowed. India is also one such country.
In 2001, the Netherlands was the first country in the world to allow gay marriage. Apart from this, there are 13 countries in the world including Yemen and Iran, where death penalty is given for same-sex relations, leave alone marriage.
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Research cooperation- Ayush Aggarwal
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Read other news related to same sex marriage
Gadkari said – If women increase, men will have to keep 2 wives: Live in relationship is wrong, gay marriage will also destroy the social structure.
Union Transport Minister Nitin Gadkari said in a YouTube podcast that balance of sex ratio is necessary in the society. If there are 1500 women for every 1000 men, then men may have to be allowed to have two wives. Read the full news…