‘Same-Sex Marriage Against Indian Concept Of Marriage’: Akhil Bharatiya Sant Samiti Opposes Marriage Equality Pleas In Supreme Court

“Same-sex marriage is totally unnatural and disastrous to the society. Hindu marriage is a sacramental relationship between a biological man and a biological woman, unlike under Muslim law, where marriage is a contract. As a legal institution as well, marriage between opposite sexes has been central to the legal regime of our country. The writ petitioners are trying to destroy the very Indian concept of marriage by promoting same-sex marriage, which is going to attack the whole family system in India.”

The organisation has highlighted that marriage in Hinduism is one of the sixteen samskaras (sacraments), and as such, a biological man and a biological woman are bound by a union of marriage not only for physical and social purposes but also for spiritual advancement. “The aim of marriage among Hindus is not merely physical pleasure or procreation, but spiritual advancement.” In particular, it has been stressed that the rituals of kanyadaan (ceremonial giving away of daughter in marriage to the groom by the father of the bride) and saptapadi (circumambulation of holy fire by the bride and groom) have ‘basic’ importance in a Hindu marriage.

Besides this, in support of its plea against the legal recognition of same-sex marriage, the organisation has argued that marriage between opposite sexes has been central to the Indian legal apparatus. The application states, “India has numerous statutory provisions ensuring marriages between opposite sexes with related legal provisions with various rights to inheritance. Hence, the concept of marriage between two opposite sexes is like a basic feature of the concept of marriage itself which leads to the creation of a bundle of rights.” Different personal laws applicable to different communities in India are also protected under the Constitution, the organisation has said, challenging the petitions on the ground that the prayers are in ‘complete contravention’ to the concept of marriage in all laws in India. In this connection, the applicant has also emphasised the existence of categorical and definitive gender binaries in the legal regime, which recognises terms like husband, wife, mother, father, brother, and sister. “Any deviation or dilution of such definitions is a matter of legislative policy based on social and cultural realities and on extensive socio-legal research.”

Finally, the Akhil Bharatiya Sant Samiti has accused the petitioners in the pleas for recognition of same-sex marriage of “trying to destroy the very Indian concept of marriage, which is an institution in itself”. The organisation has hypothesised that the concept of same-sex marriage if it were to receive such legal sanction, would attack the whole family system in India. Among other things, the samiti has assailed the petitions on the ground that same-sex marriage is an import of the west. It has cautioned that same-sex relationships, which have received acceptance in Western countries, cannot be allowed in Indian society. The application has added, “The concept of same-sex marriage is alien to our society and it is liable to be rejected in toto.”

This is not the first time that a religious organisation has opposed the petitions seeking legal recognition of same-sex marriage. Earlier this month, a body of Islamic scholars, Jamiat Ulama-i-Hind had also filed an intervention application in which they have raised similar points. Apart from the central government, which has categorically laid out its reasons for opposing the pleas in two affidavits, organisations like the National Commission for Protection of Child Rights and the Delhi Commission for Protection of Child Rights have also filed intervention applications in the marriage equality petitions. Interestingly, while the national child protection body has raised concerns about the adoption of children by same-sex couples, the Delhi state commission has taken a progressive stance regarding marriage between the same sex.

Notably, the Indian Psychiatric Society has issued a statement saying that members of the LGBTQIA+ community should be treated like any other citizen of the country and should be allowed to enjoy all civil rights such as marriage, adoption, education, and employment. On the basis of scientific data gathered from countries where same-sex marriage and adoption by same-sex couples have been legalised, the professional association of psychiatrists disputed the contention that such individuals were not fit to be parents or partake in social institutions such as marriage. Any discrimination against people on the LGBTQIA+ spectrum in their enjoyment of these civil rights would in fact lead to severe mental health issues, the organisation said.

A Constitution Bench headed by Chief Justice DY Chandrachud, and comprising Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha will start hearing the petitions from tomorrow, April 18.

Case Title

Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022