"Marriage Of Opposite Sexes Central To Indian Legal Regime": Jamiat Ulama-i-Hind Opposes Pleas In SC Seeking Recognition For Same-Sex Marriages

Jamiat Ulama-i-Hind, acting through Maulana Mahmood Madani, who has served as a Member of Parliament, has sought intervention in the matter pertaining to the legal recognition for same-sex marriage in India. While opposing the petitions seeking to fit in same sex marriage in the prevailing legal regime of India, Jamiat Ulama-i-Hind has argued that as a legal institution, marriage between the opposite sexes has been central to the legal regime of India.

The intervention application filed by the organisation argues that the concept of marriage is more than just the socio-legal recognition of a union of “any two persons” and that its recognition is on the basis of established societal norms which cannot keep changing on the basis of variable notions based upon newly developed value system emerging from a different worldview. It states–

"It is submitted that as a legal institution, marriage between the opposite sexes has been central to the legal regime of a country like ours. We have numerous statutory provisions ensuring marriages between opposite sexes with related consequential legal provisions with various rights related to inheritance, succession, and, tax liabilities stemming from marriage. Hence, the concept of marriage between two opposite sexes is like "basic feature‟ of the concept of marriage itself which leads to the creation of a bundle of rights."

The application submits that the petitions seeking recognition of same-sex marriages are diluting the concept of marriage, which is "a stable institution", by introducing a "free-floating system", which is same-sex marriage.

Stating that the countries which have legalised same-sex marriages have reached a certain threshold of social order in terms of education/literacy and societal acceptance, the application argues that the concept of same-sex marriage cannot be introduced in India. It states–

"It is also pertinent to mention that most Eastern countries do not recognize "same-sex marriages‟."

The application also relies on various religions to state that same-sex marriage cannot be permitted. It submits–

"Among Hindus, marriage is defined as a religious sacrament in which a man and a woman are bound in a permanent relationship for physical, social, and spiritual purposes of dharma, procreation, and sexual pleasure. The aim of marriage among Hindus is not merely physical pleasure or procreation but spiritual advancement. It is one of the sixteen sanskars."

Similarly, it contends that Christianity and Islam's prohibition of homosexuality has been categorical from the beginning of these religions itself. It adds–

"A study of the Islamic paradigm qua gender and sexuality in Islamic law and theology reflects a clear and fixed principle of only two genders (biological). If we trace the epistemology of the Western sexual liberation movements, the defining figures are nearly all staunch atheists. Since the atheistic worldview had a decisive influence qua the present alterations in the ideas of sexual morality, it must not be allowed to create any space within the religiously governed personal laws of communities."

The petitions concerning the legality of same-sex marriages are listed for final disposal and hearing before a Constitution Bench on 18 April 2023.