Same Sex Marriage

Recently, the Center government, against the petition recognizing Same sex marriage, said that the idea of Same-sex marriages is not in favor of the ethos and culture of Indians.

It may be noted that in the year 2020, petitions were filed under the Hindu Marriage Act, 1955 and, the Special Marriage Act, 1954, for recognizing same-sex marriage.

Demands in the petition:

The petition said that, under the Special Marriage Act (SMA), marriage between any of two persons should be declared and, while extending fundamental rights, same-sex marriages should also be brought under the purview of fundamental rights.

Government’s Stand:

  • The Central Government opposed same-sex marriage in Delhi High Court stating that a marriage in India can be recognized only if it is between a “biological man” and a “biological woman” capable of producing children.
  • The Central Government stated that, the law only recognizes marriage between man and woman.
  • Central government says that 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.
  • The government stated that, despite the removal of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right to Same-sex marriage.
  • Central Government made it clear that, Same-sex marriage does not come under the category of fundamental rights in any case of Article-21.


  • After analyzing the provision of Section 377 of the Indian Penal Code, The Supreme Court ordered the exclusion of only particular human behavior from the category of crime.
  • This order was neither given for the purpose of Same-sex marriage nor to legalize this conduct.

“Legitimate State Interest”

The Center trough an affidavit informed the court that only the persons of the opposite sex have a “Legitimate Sate Interest” in recognizing marriage and, it is the job of Legislature to consider the validity of such marriages keeping “social morality” in mind.

Article 21

  • Fundamental rights are subject to the procedure established by law under Article 21 and, it cannot be extended to make Same-sex marriage a fundamental right.
  • Article 21 of the constitution guarantees the right to life. This rights which is largely fair, just and rational, cannot be taken away through a law.

Sanctity of marriage:

  • The affidavit filed by the Center states that in India, marriage is linked to Sanctity as an institution. It is considered a ritual in major parts of the country.
  • The concept of Indian family is based on a husband, a wife and a child, which cannot be compared with a Same-sex family.

Source – The Hindu

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