Courts can’t take call on same-sex marriage, says BJP MP Sushil Modi
Legal sanction should not be provided to same-sex marriages, as doing so “would cause complete havoc with the delicate balance of personal laws in the country”, said Sushil Modi
New Delhi: Legal sanction should not be provided to same-sex marriages, as doing so “would cause complete havoc with the delicate balance of personal laws in the country”, Bharatiya Janata Party (BJP) lawmaker Sushil Kumar Modi said on Monday.
Speaking during Zero Hour in the Rajya Sabha, Modi also said that “two judges of the Supreme Court” could not decide on the matter and sought a debate in Parliament.
“Within India, same sex marriage is neither recognised nor accepted by any uncodified personal laws and codified statutes governing the institution of marriage in the country. It would, hence, cause complete havoc with the delicate balance of personal laws in the country,” he told the House.
The Rajya Sabha MP from Bihar argued that laws related to adoption, domestic violence, divorce and the right to stay in marital homes are associated with the “institution of marriage between men and women”.
The Supreme Court in 2018 decriminalised homosexuality between consenting adults and affirmed sexual autonomy as a basic right of individuals. It, however, did not get into civil rights issues.
As a consequence, same-sex relationships are legal but civil rights such as marriage, inheritance or adoption are not guaranteed to the lesbian, gay, bisexual, transgender, queer, intersex and asexual (LGBTQIA+) communities.
Earlier this month, two public interest litigations were filed by same-sex couples in the Supreme Court, arguing that the State’s refusal to recognise them as married violated their constitutional rights. The petitions were heard by a top court bench headed by Chief Justice of India Dhananjaya Y Chandrachud and justice PS Narasimha, who asked the Centre for a response.
With the petitions expected to come up for hearing again next month, the BJP lawmaker said the issue could not be decided in court. “Moreover, marriage is an institution wherein both men and women live together and carry forward the human chain by producing children,” Modi said.
Blaming the “left liberals” for pushing for legalising same sex marriages, he said: “Two judges of the Supreme Court cannot decide this... this needs a debatein Parliament.”
Given that same-sex marriage is a societal issue, the judiciary shouldn’t decide over its legality, he said. “The issue must be deliberated over in Parliament and in society instead,” he added.
In its affidavit filed before the Delhi high court in 2021 in a similar case, the Union government had strongly opposed the validation of same-sex marital unions, underlining that a marriage in India can be recognised only if it is between a “biological man” and a “biological woman” capable of producing children.
The government had said any interference by a court in the marital statute based on personal laws will create “havoc” in society and will run afoul of the intent of Parliament in framing the laws. It said a fundamental right cannot be an “untrammeled right” and cannot override other constitutional principles.
According to global think tank Council of Foreign Relations, same-sex marriages are legal in at least 30 countries, including the United States, Australia, Canada and France.