Issues in same-sex marriage

These laws do not recognise the rights of same-sex married couples (right to adopt/have children by surrogacy, rights to inheritance, pension etc) even though the SC held that all adults have the right to marry a person of their choice.

They will not be able to avail of legally accrued benefits of laws. For example,

The Transplantation of Human Organs Act only allows near relatives to object to the use of a deceased’s body for organ donation.

Section 80 of the IT Act 1961 provides for the deduction of certain sums for computing the total income of an assessee when such sums are paid on behalf of a spouse.

Equality must extend to all spheres of life – home, workplace, and public places.

Non-recognition of same-sex marriage violates rights under –

Articles 14 (right to equality before the law),

15 (right against discrimination on grounds of religion, race, caste, sex, place of birth),

19 (freedom of speech and expression), and

21 (protection of life and personal liberty) of the Constitution.

Therefore, structural changes along with attitudinal changes are the need of the hour.

For this to happen, benefits of legislation such as the Special Marriage Act 1954 (which provides for the solemnization of special marriages between any two persons), should be provided to same-sex couples.

If the court allows same-sex marriage, it would amount to the “judicial creation of a social institution called ‘marriage’ of a different kind than contemplated in the existing law”.

Only the legislature (repository of democratic representation and reflects the will of the people) has the right to make such changes in the law.

Marriage is not confined to the private sphere – The regulation of marriage is very much an issue of acceptance by society – This rationale is the very basis for state recognition of marriage.

KS Puttaswamy vs Union of India (2017): The rights of LGBTQ are inherent in the right to life, privacy and dignity. They constitute the essence of liberty and freedom.

Navtej Singh Johar vs UOI (2018): The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation.