Concept of same-sex marriage attacks family system rather than supporting it

2 April, 2023 | Pragati Singh

Supreme Court National

Marriage is a holy contract between a biological man and a biological woman under Islam.

The Jamiat Ulama-I-Hind has filed an intervening motion at the Supreme Court in the case of legal recognition of same-sex marriage, claiming that marriage is only permitted between a biological man and a biological woman under the country’s legal system.

“This concept of same-sex marriage goes to attack the family system rather than making a family through this process,” the application filed by Jamiat Ulama-I-Hind stated. 

It has been argued that invoking the idea of constitutional morality to legitimise same-sex marriage because it is legal in some parts of the world might be very destructive to the social order of the other portion. According to Jamiat Ulama-I-Hind, the scope of constitutional morality cannot and should not be expanded to the extent required to legitimise the petition.

It further informed the Supreme Court that marriage is a holy contract between a biological man and a biological woman under Islam. A marriage proposal by a biological male and its acceptance by a biological woman (or vice versa) are required in Muslim society for a lawful (Sahih) marriage.

The Jamiat Ulama-I-Hind has asked the Supreme Court to allow it to intervene in the petition concerning legal recognition of same-sex marriage, arguing that the legislative policy of a “marriage” in the Indian legal system, whether penal, constitutional, or personal, has always been between a biological man and a biological woman.

The religious body claimed that terminology like “spouse,” “wife,” “mother,” and “father” create categorical and definitive binaries. Any departure or watering down of such definitions is a matter of legislative policy based on societal reality, acceptance, and significant socio-legal study.

Without prejudice to the submissions made in the current petition and without justifying the concept of same-sex marriage in the other cited countries, Jamiat Ulama-I-Hind wishes to highlight that those countries have reached a certain level of social order in terms of education/literacy and societal acceptance.

It went on to say that the rationale used in other countries to allow the inclusion of same-sex partnerships in the idea of marriage cannot be applied in India.

It is also worth noting that most Eastern countries do not accept same-sex weddings, according to the organisation. In its application, Jamiat Ulama-I-Hind stated that any established religion is obligated to have certain principles connected.

“When a person enters into a religion or declares herself to be a follower of a religion, that person is expected to have a belief in the foundational norms of such a religion. A person who fails to follow such norms is considered a sinner in the religious paradigm. Any person who questions the well-established norms of religion or demands the creation of a non-existing space within the religious norms and its teachings is in fact seeking to amend the religious norms. There cannot be an imposition of a radical non-religious worldview in established, inseparable and core principles of religions,” Jamiat Ulama-I-Hind said.

The centre had previously filed an affidavit opposing the petition for legal recognition of same-sex marriage, claiming that living together as partners by same-sex individuals, which is now decriminalised, is not comparable with the Indian family unit and that they are clearly distinct classes that cannot be treated equally.

As part of its opposition to the petition seeking legal recognition of LGBTQ marriage, the government stated that same-sex relationships and heterosexual relationships are obviously distinct groupings and cannot be treated similarly.

The centre stated in its affidavit that it is for the legislature to determine and enforce such societal morality and public acceptance based on Indian ethos, and that western rulings without any basis in Indian constitutional law jurisprudence cannot be imported in this context.

The centre stated in the affidavit that living together as partners by same-sex individuals, which is currently legal, is not equivalent to the Indian family unit notion of a husband, a wife, and children.

On March 13, the Supreme Court sent the issue of same-sex marriage legal recognition to a five-judge Constitutional Bench.

The Supreme Court is hearing several petitions seeking legal recognition of same-sex marriage under the Foreign Marriage Act, Special Marriage Act, and other legislation. One of the previous petitions mentioned the lack of a legal framework that permitted members of the LGBTQ+ community to marry whoever they wanted.

According to the earlier petition, the couple sought to enforce the fundamental rights of LGBTQ+ individuals to marry any person of their choice and said that “the exercise of which ought to be insulated from the disdain of legislative and popular majorities.”

The petitioners further asserted their fundamental right to marry each other and requested that this Court issue appropriate directives allowing and enabling them to do so.