Marriage is a socially approved and legally sanctioned union, usually between a man and a woman, that is regulated by laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners and accords status to their offspring (if any).
Structural and Functional Changes in the marriage system
The marriage system had undergone radical changes, especially after independence. even though the basic religious beliefs associated with marriage have not crumbled down, many of the practices, customs, and forms have changed. the recent changes in the marriage system are as follows:
- Changes in the aim and purpose of marriage: in traditional societies the primary objective of marriage is ‘dharma’ or duty; especially among Hindus. but today the modern objective of marriage is more related to ‘life-long companionship’ between husband and wife.
- Changes in the form of marriage: traditional forms of marriage like polygamy, and polygyny are legally prohibited in India. nowadays, mostly monogamous marriages are practised
- Change in the age of marriage:
The Prohibition of Child Marriage (Amendment) Bill, 2021
- The Bill amends the Prohibition of Child Marriage Act, of 2006 to increase the minimum age of marriage of females to 21 years. Further, the Bill will override any other law, custom, or practice.
- Under the 2006 Act, a person married below the minimum age may apply for annulment within two years of attaining majority (i.e., before 20 years of age). The Bill increases this to five years (i.e., 23 years of age).
Increase in divorce and desertion rates:
- Relaxed legislative provisions for divorce have virtually affected the stability of the marriage, particularly in urban areas.
- It is mainly due to economic prosperity and internet connectivity.
- The Internet has exposed people to different social trends worldwide, revolutionising the institution in an otherwise conservative Indian society.
Live-in relationships:
- They are on a steady growth rate in India especially among the youth in metropolitan cities.
- The institution also has legal recognition as a three-judge bench of SC in 2010 observed that a man and a woman living together without marriage could not be construed as an offence and held that living together is a right to life and liberty (article 21).
- SC has also acknowledged that children born out of such relations are legitimate and have property rights of their parents under section 16 of the Hindu marriage act, 1955.
Same-sex marriage:
These days Supreme Court of India is hearing the petition seeking for legalisation of same-sex marriage.
Arguments in favour of same-sex marriage
No clear-cut definition of marriage
At the heart of the petition by the LGBTQIA community seeking marriage rights lies the question- what is marriage? This is a question that needs to be addressed just by the LGBTQIA community. it may seem strange that the law defines how to enter a marriage, and how to exit a marriage, but does not define what is marriage. In such a situation we are left to define the concept of marriage ourselves, or rather, to live by it.
Marriage is a voluntary union of equals where neither loses their autonomy to the other nor their personality. The parties to the marriage, regardless of their sexuality or gender, agree to a mutual bond to provide emotional, financial and sexual support to each other.
The state has no legitimate interests
There is a mutuality to the relationship of affection and desire which could lead individuals into a marriage neither affection nor desire can be mandated by the law and hence neither choice of partner nor the gender of partner nor the relationship between the two can be mandated by the law. The law cannot mandate why you marry, when you marry, or whom you marry.
The state can have no legitimate interest in this decision-making since this is the most intimate decision that a person can take.
Duty of state to protect same-sex couples
The state is duty-bound to respect, protect and fulfil the rights of couples entering into marriage irrespective of their genders.
What the petition for same-sex marriage is demanding is not the right to marry- since they have the freedom already- but the legal recognition by the law of the decision they have taken, to the same extent that a heterosexual couple gets the recognition. Recognition then becomes an act of the state. Can the state withhold this recognition even when no legitimate state interest is shown to exist?
Essential for equality:
Legalizing same-sex marriages is crucial in promoting equality and non-discrimination. All individuals, regardless of their sexual orientation or gender identity, should have the right to marry and have their relationships recognized under the law.
Ensuring the rights of the LGBTQIA community:
Legalizing same-sex marriage can provide benefits for LGBTQIA members and society as a whole. It can help to reduce discrimination and promote social acceptance of LGBT individuals.
Promotion of the principle of secularism:
Sanctity means “the state or quality of being holy, sacred, or saintly,” meaning that the word sanctity in itself refers to religion but in a secular society religion can’t dictate the private life of individuals. So yes, same-sex marriage may ruin the religious standard of marriage. However, the fact of the matter is that homosexuals want marriage in the purely legal form and religions do not have to approve of this. Reasons are
Firstly, if marriage is a concept created by God why are non-religious people allowed to marry?
Secondly, we are told that marriage is an ancient institution, locked in stone. Does the husband still own the wife? And why do we allow divorce?
Marriage is a legal act. Marriage is a religious act. The two are not the same. Religions should be free to define and sanction marriage as they deem proper for their practitioners. But, marrying legally doesn’t require a religious marriage. And in a nation built on the principles of equal rights, it only makes sense that the legal right to marry be available to all citizens.
Hence, legalizing same-sex marriage demonstrates freedom from religious influence and thereby, the promotion of and adherence to secularism.
No impact on others:
Legalizing same-sex marriage has no impact on others and does not harm the institution of marriage or society as a whole.
Discrimination frays the human spirit:
Making committed human connections is good for the human spirit. Discrimination against same-sex couples can cause harm to their mental health and well-being.
Marriage is not a tool for procreation:
Linking marriage with procreation means women who are over childbearing age or infertile or elderly people should not be allowed to marry. The utilitarian approach is based on the pleasure-pain principle. And state and society should refrain from intervening in the pleasure of individuals if it is not harming others.
If the primary reason for marriage is to provide a safe and stable structure for the raising of children, Why are people who are unable to reproduce allowed to marry?
Why aren’t marriages that fail to generate offspring cancelled after a set time?
The court can also lead social change:
Courts and legislatures have to work together. Same-sex couples deserve a full range of marriage options. The court must define the liberty of all, not mandate [its] own moral code. The Supreme Court of India has been defined as a guarantor of the fundamental rights of all citizens. And the right to marriage is a Fundamental right under Article 21 of the Indian constitution. Hence, if the government fails or opposes this right then it is the first and foremost duty of the courts to protect and promote fundamental rights. Under social contract, theory state is morally and legally obliged to protect and promote the basic rights of subjects.
There is no direct link between heterosexual marriages and stability:
In the US divorce rate is creeping near 50 per cent among heterosexual couples. Hence, the strength of a marriage is what it is, not who is in it.
Arguments against the same-sex marriage
Same-sex marriage is not in conformity with societal morality and Indian ethos:
It stressed that same-sex marriage is not in conformity with societal morality and Indian ethos. In an affidavit, the central government said the notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex. This definition is socially, culturally, and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation, it added.
Children hunger for their biological parents:
The affidavit said the institution of marriage and the family are important social institutions in India that provide for the security, support and companionship of the members of our society and bear an important role in the rearing of children and their mental and psychological upbringing also. While this opportunity will not be available to the adopted children of homosexual couples.
Same-sex marriage is against societal morality:
The affidavit said that considerations of societal morality are relevant in considering the validity of the legislature and further, that it is for the legislature to judge and enforce such societal morality and public acceptance based upon Indian ethos.
Marriage in India is possible between a biological man and a woman only:
The Centre said that marriage between a biological man and a biological woman takes place either under personal laws or codified laws namely, the Hindu Marriage Act, of 1955, the Christian Marriage Act, of 1872, the Parsi Marriage and Divorce Act, of 1936 or the Special Marriage Act, 1954 or the Foreign Marriage Act, 1969.
“It is submitted that the legislative understanding of marriage in the Indian statutory and personal law regime is very specific viz. marriage between a biological man and a biological woman only,” it said.
Marriage in India is a social institution rather than a union of two individuals:
The parties entering into marriage creates an institution having its public significance as it is a social institution from which several rights and liabilities flow, it added.
Same-sex marriage is against the religious sentiments of the country:
The Centre said amongst Hindus, it is a sacrament, a holy union for the performance of reciprocal duties between a man and a woman and in Muslims, it is a contract but again is envisaged only between a biological man and a biological woman. It will, therefore, not be permissible to pray for a writ of the apex court to change the entire legislative policy of the country deeply embedded in religious and societal norms, it added.
The Centre emphasized that in any society, the conduct of the parties and their inter-relationship is always governed and circumscribed by personal laws, codified laws or in some cases even customary laws/religious laws. The jurisprudence of any nation, be it by way of codified law or otherwise, evolves based upon societal values, beliefs, cultural history and other factors and in case of issues concerning personal relationships like marriage, divorce, adoption, maintenance, etc., either the codified law or the personal law occupies the field, it added.
Same-sex marriage is against the personal laws:
“It is submitted that registration of marriage of same-sex persons also results in violation of existing personal as well as codified law provisions — such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under personal laws governing the individuals,” it said.
The affidavit said that any recognition over and above the conventional relationship of marriage between a man and woman would cause irreconcilable violence to the language of the statute.
Defies the purpose of procreation:
Some people argue that same-sex marriage should not be legalized because it defies the purpose of procreation.
The legislature, not the courts should decide how to make profound social changes
It is argued that the legislature is the only proper place to sort out people’s civil rights and the morality of society because it represents the people’s will.
Same-sex marriage will disrupt the stability of society:
Marriage is to encourage stable relationships because people in them are more likely to contribute to a stable society.
