By – Satya Muley
The Supreme Court recently opined that gender is not a concept that is determined solely by an individual’s genitals and that it is far more complex, further stating that there is no absolute notion of a man or a woman. This opinion has created a furore in the public sphere, leading to concerns in a section of Indian society about the social and cultural fabric of the country.
In culturally rich India, where social norms and obligations wield significant influence, the acceptance of same-sex relationships still poses a challenge, even after legal recognition. In 2018, India took a progressive leap by decriminalising Section 377 of the Indian Penal Code (carnal intercourse against the order of nature), a move that one could argue opened Pandora’s Box. With the legalisation of same-sex relationships came concerns surrounding the individual rights of the LGBTQ+ community and the recognition of same-sex marriage.
Same-sex companionship and societal stigma
In Navtej Singh Johar vs. Union of India, the Supreme Court granted same-sex couples the freedom to lead a dignified private life. However, it only allows these couples the “basic right to companionship, so long as such companionship is consensual, free from the vice of deceit, force, coercion, and does not result in the violation of fundamental rights of others.”
The issue of same-sex marriage can be considered highly sensitive, and Indian society is not yet ready to accept it fully. When sections of society refrain from accepting interreligious or even inter-caste marriages, same-sex marriages can be regarded as an even more distasteful concept. Therefore, it becomes an issue of social importance that should be left to the legislature to decide upon.
The question of fundamental rights
Many people believe that the right to marry should be extended to all individuals, regardless of their sexual orientation. Denying same-sex couples the right to marry is seen as a violation of their fundamental rights. The Chief Justice’s remarks regarding this issue have given hope to those who support same-sex marriage.
The cascading effect of adoption includes the societal stigma that same-sex couples may face from their families and communities. In turn, the adopted child could be subjected to discrimination by others, affecting their emotional and psychological well-being. Since Indian society has not entirely accepted the LGBTQ+ community, the adopted child could face several repercussions.
The current legal framework may create some confusion when it comes to natural guardianship of the adopted child and spouse support. The question of who should maintain who is often a source of confusion. However, this question has been addressed and established by various precedents, stating that not only is a man liable to maintain his wife, but that any spouse who can maintain their partner is liable to pay maintenance. The same can apply to same-sex relationships.
Regarding the maintenance of an adopted child by same-sex parents, if a same-sex couple adopts a child, the non-biological parent may have a legal obligation to support the child, even if they separate or divorce. Some argue that it goes against the traditional values and beliefs of the Indian society. However, it is important to note that the recognition of same-sex marriage does not detract from the sanctity of heterosexual marriage but rather adds to the diversity of relationships that exist in society.
The Bar Council of India has resolved to request the Supreme Court of India to leave the issue of same-sex marriage for legislative consideration. While a few people have taken to social media to express their disbelief about the Supreme Court’s opinions on the matter, others are worried about its social repercussions on younger generations.
Treading with caution
The issue of same-sex marriage in India requires extreme caution, high-level scientific expertise, and contemporary public sentiments. Therefore, it is best left to the legislature to invoke collective wisdom and deal with it based on the social scenario in India. While acknowledging fundamental rights, potential cascading effects, and societal stigmas, India needs to tread carefully and draw insights from the experience of other countries.
Not everything that has been decided by the judiciary or enacted by the legislature in other parts of the world is necessary for India. All such controversial subjects require significant time testing. At least a couple of decades should pass before such concepts/experiments are deemed successful in other countries. Furthermore, the social scenario in each country is different.
(The author is an Advocate, Bombay High Court and Supreme Court, and founder of law firm Satya Muley & Co.)
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