Same Sex Marriage

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Same Sex Marriage

Same Sex Marriage

  • Recently, the Center government, against the petition recognizing Same-sex marriages, 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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