LGBT Rights – Transgender Bill, Sec. 377, etc.

Same-sex marriages cannot be recognized: Centre


From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : LGBTQ Rights

The Centre has opposed any changes to the existing laws on marriage to recognise same-sex marriages, saying such interference would cause “complete havoc with the delicate balance of personal laws in the country”.

What is the case?

  • A petition had sought to recognize same-sex marriage.
  • Despite the decriminalization of Section 377 of the Indian Penal Code (IPC), the petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country”.

What did the Centre say?

  • Living together as partners and having a sexual relationship with same-sex individuals is not comparable with the Indian family unit concept.
  • The Indian concept of family constitutes a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out.
  • It said the 2018 landmark judgment of the Supreme Court decriminalizing consensual homosexual sex in India was “neither intended to nor did it in fact, legitimize the human conduct in question”.

Why such a move by the Centre?

  • The registration of marriage of same-sex persons also results in a violation of existing personal as well as codified law provisions — such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under the personal laws governing the individuals”.
  • Any other interpretation except treating ‘husband’ as a biological man and ‘wife’ as a biological woman will make all statutory provisions unworkable, the government cautioned.
  • In a same-sex marriage, it is neither possible nor feasible to term one as ‘husband’ and the other as ‘wife’ in the context of the legislative scheme of various personal laws.

Back2Basics: Article 377 of IPC

  • Section 377 of the Indian Penal Code (IPC) is an act that criminalizes homosexuality and was introduced in the ear 1861 during the British rule of India.
  • Referred to ‘unnatural offences’ and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life.
  • However, in a historic verdict, the Supreme Court of India on September 6, 2018, decriminalized Section 377 of the IPC and allowed gay sex among consenting adults in private.
  • The SC ruled that consensual adult sex is not a crime saying sexual orientation is natural and people have no control over it.
  • It also said that Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality.
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