Same Sex Marriage: the issues involved therein.

Homosexuality,though not ever unexisting, is looked down upon in our society. It was decriminalized only a few years ago. Those who support this practice have proved in the court that being homosexual is an urge just in the same way the urge is that of being hetero sexual. So by no means it is a queer behavior on part of one who practices homosexuality to satisfy one's sexual & emotional needs. The consistent persistence with organized movement of LGBT community bore fruits in the way that homosexuality is no more a criminal offense. That is, it stands decriminalized now.

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The story doesn't end here. Their demand now extends to allowing same sex people to marry one another. How far this demand despite being justifiable is justiciable is under probe by the constitutional bench of the apex court. 

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In so far decriminalization is concerned one thing must be kept in mind. That is to decriminalize an act is one thing and to legalize the act and further to create rights on the basis of such legalization is another.

 Should decriminalization necessarily lead to legalization? It's matter to be settled after keeping all aspects in view.

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The supporters demand judicial intervention of such a type that warrants 'innovation' by the judiciary in the institution of marriage by way of devising legal fittings.

It may also arguably be held that same sex marriage can help mitigate the problem of orphans who are thought to be more likely to be adopted by such same marriage couple. 

Moreover optimists may see in it the prospects of containing our population.Today India tops the list of most populous countries in the world.

But it is often forgotten that a judicial Institution can't create a social or religious one that marriage as an institution happens to be. 

It needs to be kept in mind that in the past distant to the extent of millennia we find no example of same sex marriage. 

Even those who scoff at our scriptures to name it at best a myth will be hard pressed to come out with any mythological characters going for same sex marriage.

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Even if the judiciary dares create this "innovative" type of marriage there is no guarantee that society will tend to accept it.

The Supreme Court may be the guardian of the constitution but definitely not society's.  

          Society conducts or regulates its personal business in its own way. Its means-in-chief in respect of social transactions even in the 21 st century still happens to be the custom,tradition,social-and religious practices.

      Of course the judiciary or legislature does have the right to interfere with such business of the society. But the raison d'etre of such judicial or legislative interventions must be born out of not only rational application of mind that advocates 2+2=4 in all the situations. We are aware that sometimes 2+2 is not equal to 4. It may be less than or greater than 4 also. The court must consider whether it is in the greater interest of the society or not. If it finds so,so good. 

We will have to see which is heavier in the eye of the judiciary- that is Right to equality of a particular community or age old warp and weft of the mat that society? It is this mat over which all the modern institutions including judiciary are standing.

Judicial verdicts on matters of inter-faith or inter caste marriage or that with respect to triple talaq etc. need to be seen in this perspective. And by that logic the judiciary is well competent to do as it pleases towards the correction of inequality discussed above in matters of LGBT community.

But acceptance of any law, regulations or legislation matters materially when it seeks to address core social or religious issues embedded in the custom or tradition of society. 

We are aware that even inter caste marriage or inter faith marriage, though not objected to by law, is still frowned upon in the society. 

   

    But the question is that is society ready to digest this manipulation in marriage as a social institution?

 

We have many regulations or legislation in view that have fallen short of its impact sans societal support.

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Constitutionally speaking, the same sex marriage rights emanate from the right to equality and right to equal protection against discrimination on grounds of only of sex etc. inter alia.

 While dealing with such rights the judiciary must take into account the other core issues that are liable to complicate the matter to a bewildering proportion.  

It will create a paradigm shift in all the statutes-civil as well as criminal.

 How will and well the right to divorce be regulated? 

All rights ranging from property rights to succession rights to the right to adopt a child etc.etc. will have to be revisited to accommodate the issues consequential to legalization of same sex marriage. 

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There's an angle other than legal also. 

The children of the same sex marriage may not have their emotional needs fulfilled by parents of the same sex. 

Whom will they call father or mother?

 How well will they be treated by their friends and families other than their own artificial one? 

Will the mind of children of the same sex marriage family develop in a natural and wholesome way in an artificial and unnatural marriage set up standing as an oddity in the vicinity? 

Will there not be a need to study the impact of such same sex marriage upon children in terms of their mental health? 

Will parenting by the same sex couple be qualitative and fulfilling? 

Can two males tied nuptially rear a baby with same competence and ease as in case of a couple composed of male and female? 

Will such rearing have an adverse effect upon child psychology? What type of citizens will such a child become in future?

These are some questions that must remain in queue to be solved by the court prior to its judgment on the issue. 

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Centre's approach in the matter is a balanced one. Is it incorrect when it holds that the issue be left to the legislature? 

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Be that as it may, but the least we expect is that the issue should not be dealt with in such a way that its resolution may cause hallucinations in the society.

Let in the course of balancing acts some bigger imbalances not ensue in the distant future. 

The question here is not to choose between 'right' and 'wrong'. Rather it is all about balancing between 'right' and 'right' in the interest of both the LGBT community and the society at large.

 The Indian judiciary which is trained in western model of jurisprudence is also expected to give heed to the social and religious forces that still have held Indian society intact despite western onslaughts on it in various ways and by various means. 

We are aware of rampant consumerism, unrestrained liberalism, licentious behaviorism like live-in relationship etc. that now have a field day in the name of being progressive and rational. 

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My considered view on the matter is that the judiciary should order the government to constitute a commission composed of representatives of all the stakeholders that will consider all consequential and incidental aspects in sufficient detail before any judgment is given out on the matter.

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    R.R.Prabhakar.

     05.05.2023.