General Studies Paper 1General Studies Paper 2 (Social Issues) (Social Justice)
Question:- 79. Even after decriminalising Section 377 of the Constitution, marriage of a same sex couple is not possible. Why is there opposition to these marriages? Also highlight how Supreme court in its judgements has upheld individual autonomy in marriage. (10 marks)
Sep 30, 2022
Answer:-

 

INTRODUCTION

The Section 377 of the Indian Penal Code makes sex or marriage with persons of the same gender illegal. The Supreme Court in Navtej Johar case decriminalised Section 377 making gay sex legal.

However, despite landmark judgement same sex marriages are not possible. It is not recognised under Hindu marriage Act or Special Marriage Act.

 

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The opposition to same sex marriage arises due to following reasons.:

1. Religious texts and sentimental values: Marriages in societies like Hindu are very much part of their religion and derived and associated with their divine entities as well as religious texts and thereby hold  significant sentimental values.

2. Indian conception of family- Living together as partners and having sexual relationship by same-sex individuals is not comparable with the Indian family unit concept of a husband, a wife and children.

3. Stereotypes- Stereotypes attached by society to same sex marriage considering it as unnatural or against the laws of the nature.

4. Impact on laws; This change will impact other aspects like inheritance, adoptance and religious ecosystem of the Hindu society that are critically hinged on the religious sanskar of vivah,

 

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Supreme Court through its judgements has individual autonomy in following ways-

1. Constitution Bench judgment – declared the right to privacy as a fundamental right protected under the Indian Constitution.

2. Navtej Johar judgement: family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. The privacy of the individual recognises an inviolable right to determine how freedom shall be exercised.

3. Hadia Judgement – Intimacies of marriage lie within a core zone of privacy.

The choice of a partner whether within or outside marriage ties within the exclusive domain of each individual.

4. Recent Judgement on inter-caste and inter-faith marriage: Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. Society has no role to play in determining our choice of partners.

5. Sabrimala judgement: Individual freedom prevails over purported group rights.

 

CONCLUSION

Same sex marriage should be recognised to uphold Article 14 of the Constitution so that every citizen can enjoy freedom and equality.