Civil Union and Marriage

• 20 Apr 2023

For Prelims: Right to privacy, right to marriage, Sec 377 IPC, Special Marriage Act.

For Mains: Legalization of same sex marriages in India and the challenges.

Why in News?

The Centre has contested the hearing of petitions seeking legal recognition of same sex marriage by the Supreme Court on the grounds of judiciary’s right to confer legal recognition on the “socio-legal institution” of marriage.

• In his response to the Centre’s objections, the CJI clarified that the hearing’s scope would be limited to developing a notion of a “civil union” that finds legal recognition under the Special Marriage Act, 1954.

What is a Civil Union?

• About:
  • A "civil union" is a legal status that grants same-sex couples certain rights and responsibilities that are normally given to married couples.
  • Although a civil union resembles a marriage and brings with it employment, inheritance, property, and parental rights, there are some differences between the two.
• Civil Union vs Marriage:
  • Civil Union is a marriage like legal sanction provided to two individuals generally of same sex.
  • Marriage is a religious institution recognized by law that allows two individuals (a man and woman) to marry.
  • Since same sex marriage is outside the scope of religion-based definition of marriage, Civil Union is a tool devised to grant similar legal protection to the couples who opt for the same sex marriage.
• Other Countries that Allow Civil Unions:
  • USA: In the year 2015, the Supreme Court of the United States (SCOTUS) legalised same-sex marriages across the nation with its landmark ruling in “Obergefell v. Hodges”.
    • Prior to 2015, a majority of states in US had Civil Union laws that allowed same sex couples to marry.
  • Sweden: Before 2009, LGBTQ couples could apply for civil unions and enjoy benefits such as the right to adopt. Sweden legalised same sex marriages in 2009.
  • Similarly, countries like Brazil, Uruguay, and Chile had also recognised the right of same sex couples to enter into civil unions, even before they formally recognised their legal right to marriage.

What is the Status of Same Sex Marriages in India?

• Although, the Supreme Court in Navtej Singh Johar vs Union of India (2018) case decriminalised homosexuality under Sec 377 of IPC, but same sex marriages are yet to get legal status in India.
• Since then, several petitions have been filed before the SC and the judiciary has started hearing of such petitions and looking up for the scope of Civil Unions under the Special Marriage Act, 1954.
  • A marriage under the Special Marriage Act, 1954 allows people from two different religious backgrounds to come together in the bond of marriage which is not allowed under personal/religious laws.
• Important SC Judgements on LGBTQ Rights:
  • KS Puttaswamy v Union of India, 2017: In this judgement on Right to privacy, the Supreme Court held that Sexual Orientation of any individual comes under his/her Right to Privacy.
    • This Landmark judgement became the basis of declaring Sec 377 of IPC – under which Homosexuality was a crime – unconstitutional.
  • Navtej Singh Johar vs Union of India, 2018: The Supreme Court struck down the Sec 377 of IPC to the extent it criminalized homosexuality.
    • It was also opined that there cannot be discrimination in law based on sexual orientation and gender.
  • Deepika Singh vs Central Administrative Services, 2022: In this case, the SC expanded the definition of a family and observed that familial relationships may also include unmarried partnerships or queer relationships and these atypical families should enjoy equal protection and benefits under the law.
  • Moreover, the Supreme Court in various judgements such as Lata Singh vs State of UP (2006), Safin Jahan vs Ashokan (2018), Shakti Vahini vs Union of India (2018) and Laxmibai Chandarangi vs State of Karnataka (2021) has held that choosing a life partner is a Fundamental Right under Article 21.

What are the Arguments Regarding Legalising Same sex marriage?

• Arguments in Favour:
  • ‘Gender’ has a Wider Definition: The SC has said that here is no absolute concept of a man or a woman. It is far more complex than just their physical anatomy.
  • Change is Fundamental Law: Society keeps on evolving with time and laws should also evolve with the change in society.
  • Lesser Legal Complicacies: The personal laws need not be amended, just a wider interpretation of Special Marriage Act, 1954 would be enough to legalize same sex marriage.
  • Upholding Equality: Homosexual couples must also be given privacy and freedom and they must enjoy the same rights available to heterosexual couples.
    • Also, they should not be treated as lesser mortals and asked to remain content just because homosexuality has been decriminalised.
• Arguments Against:
  • Societal Acceptance: It is argued that society may not accept that same-sex marriages ought to be on par with heterosexual marriages.
    • Acceptance of any relationship by society is never dependent on legislations or judgments.
  • Issues with Widening the Scope: Conferring wider definition to the term ‘Gender could be problematic; if a man having a biological attribute of a man starts recognizing himself as a woman, it will be problem for the authorities whether to treat him as a man or woman under the law.
  • Legal Complications: Legalizing same sex marriage could lead to several legal hurdles. Like the National Commission for the Protection of Child Rights (NCPCR) has argued that granting legal status would go against Juvenile Justice Act, 2015.
    • For example, Sec 5(2)A of the act prohibits a single male to adopt a girl child. This could also be problematic for a gay couple to adopt a child.
    • Moreover, marriage is under the concurrent list, legalisation would require lots of laws to be amended.

UPSC Civil Services Examination, Previous Year Questions (PYQs)

Q. Which Article of the Constitution of India safeguards one’s right to marry the person of one’s choice? (2019)

(a) Article 19
(b) Article 21
(c) Article 25
(d) Article 29

Ans: (b)

Source: IE