Opinion BJP’s Sushil Modi writes: Question of same-sex marriage needs to be addressed head-on and urgently, not by judiciary but by legislature

First things first, the state has a legitimate interest in maintaining a societal equilibrium and in ensuring that new practices do not lead to the breakdown of our cultural ethos and societal values. The judiciary, or more precisely two judges, however, learned and respected, cannot usurp this role. Any policy intervention that impacts the direction of our social institutions needs a thorough debate in Parliament and the society at large. Marriages are, after all, the most personal public institution and clearly straddle the divide between the individual and the state.

Citing the fundamental rights enshrined under Article 21 of our Constitution to allow same-sex marriage is a deeply-flawed argument because marital relations are more than personal: Humans are social beings whose humanity is expressed through their relationships with others. Entering into a marriage, therefore, is to enter into a relationship that has public significance as well.

To attempt to infer that a marriage between “two persons” in the Special Marriages Act, includes couples of the same sex is fallacious because the same Act states that males should have attained the age of 21 years and females 18 years for marriage. As per the Hindu Marriage Act, 1955, and various family laws and penal statutes, marriage is clearly defined as the union of a “man” and a “woman”. These laws without ambiguity refer to opposite sexes as “husband” and “wife” — a biological man marrying a biological woman. Muslim Personal Law also clearly defines mahr or other properties of a Muslim “woman” to be given to her at the time of divorce.

The legislative intent and purpose of family laws and penal statutes that are enacted clearly indicate one as “husband” and the other as “wife” and this is not possible or feasible in a same-sex marriage.

Many statutory enactments will become unworkable and legislative intention will be defeated if we were to ignore this fundamental fact. Sections of the Indian Penal Code provide special rights to women who are part of the legally-recognised relationship of marriage. The Dowry Prohibition Act refers to dowry as being for the benefit of the “wife” while the Indian Evidence Act concerns itself with the abetment of suicide by a married “woman”. The Code of Criminal Procedure talks about the maintenance of “wives”, and the Domestic Violence Act defines the aggrieved person as any “woman”. There are numerous other issues related to the institution of marriage such as those for adoption, divorce, succession, the wife’s right to stay in a marital home, etc., that will go awry if the definition of husband and wife is anything other than a biological man and a biological woman.

Even in the oft-cited judgment of Navtej Singh Johar v. Union of India (2018), which led to the decriminalisation of Section 377 of the Indian Penal Code, the Supreme Court has clarified that an individual also has a right to a union under Article 21 of the Constitution. It has also been clarified that the reference to “union” does not mean the union of marriage. Therefore, while there exists no statutory bar to the cohabitation of same-sex couples, there cannot exist any fundamental right to claim a statutory recognition of relationships such as same-sex marriage under Indian laws.

Marriage is a sacred institution in our country and revolves around three primary objectives — dharma or duty, procreation and kama or pleasure and these can be achieved only by a union of a biological man and biological woman.

Marriage and family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children and their mental and psychological upbringing. The well-being of a child in a same-sex family will be severely impacted since he/she will cohabit in an environment that is legalised but is neither natural nor regular.

Therefore, permitting and recognising same-sex marriage will strike at the core of our culture, societal values, ethos, and traditions, leading to chaos and upheaval in our society.

There are only 33 countries that recognise marriage between two individuals of the same sex. Even in the US, the recent approval of the same-sex marriage law did not happen without considerable opposition.

While the West may have accepted and legalised same-sex marriage, India must find its unique solution to protect and preserve this sacred institution.

The writer is MP (Rajya Sabha) and former Deputy Chief Minister of Bihar