30 May 2023  |   05:55am IST

Same sex marriage: The law and confusion

Marian Pinheiro

For most of the common people and for centuries together, marriage was always a relationship between two consenting individuals of two different sexes.

A contract which gives both of them legal permission to copulate and produce children. Thus, create and nourish a family, which will consist of usually the male partner called the father and the female partner called the mother and the children born to them, male and females, whose interrelationship is that of brother and sister.  This basic unit may have other additions like grandparents, grandchildren, uncles and aunties and so on. All these begin with the basic relationship of the two of opposite sex.

All the laws of marriage and succession, property rights, are all built around this basic unit of society, the family. Then there arose religions, which built its dictates around these basic human relationship unit.

To reinforce the importance of this basic unit, religious texts have been built around this very same basic unit. In order to sustain the society, the civil society also built laws and regulations and rules of conduct around this basic unit of human relationship in so many ways. The human society has been functioning within these religious, social and state laws for centuries together.

In 1989, Denmark became the first country to legally recognize a relationship for same-sex couples, establishing registered partnerships, which gave those in same-sex relationships “most rights of married heterosexuals, but not the right to adopt or obtain joint custody of a child”

A growing number of governments around the world are considering whether to grant legal recognition to same-sex marriages. So far, 30 countries and territories have enacted national laws allowing gays and lesbians to marry, mostly in Europe and the Americas. In Mexico, some jurisdictions allow same-sex couples to wed, while others do not.

Well, law has to be dynamic, and change is not just the necessary quality of human beings but of laws as well. Many things which were considered illegal and forbidden have become legitimate and lawful and vice versa, as well, it, nothing new about it, in a human society.

After all, human beings have evolved from other animals, where marriage or monogamy was never an accepted concept, all these are of course transitory in nature.

Those who have this kind of different sexual orientation claim that, their instinct or feelings are natural to them. Of course, society needs to respect every individual’s, feelings, instincts and aspirations, equally with due regard.

At the same time, one needs to look at these issues as objectively as humanly possible.

Marriage as a relationship was created for a distinct purpose of procreation and continuation of human race, now a relationship which does not naturally result in procreation and continuation of human race is clamouring for an equal status and consideration by Society.

There seems to be something amiss, in this kind of claimed categorisation. True, some people may feel attracted to others of same sex, sexually, it may be a natural instinct as well, but shouldn’t the law makers and the judiciary thing creatively and pragmatically giving such person equal consideration, and equal respect. 

We have in the Contract law, a brilliant devise where some situations that do not fulfil the essentials of a contract, are given due protection. It is called quasi contracts or contract like relationship, which is in fact a creation of judicial pronouncements of ancient times with so many legal maxims justifying such inclusions.

A same sex relationship also requires a new term and a new concept to honour, respect and protect the feelings and interest of such persons.

A term which include the idea of marriage, association and partnership between two individuals of same sex, who feel sexually attracted to each other and decides to live to gather, may be life long, may be for a long time or may be for some time.

Indian judiciary as well as the government should be open to new ways of thinking and creative, rather than trying to fit into an existing concept that which would not fit or merely aping the western nations, who have proved themselves incapable of creative and innovative thinking.

India should in fact create a new system of law and jurisprudence to encompass this new kind of human relationships. Please don’t tinker with the existing institution of marriage, it will be like putting new wine into old wine skins, the wine skins will burst and wine will spill. Also, please don’t bring in religion into this, that will only be a mess, let religions decide independently, whether they want to recognise or solemnise, or sanctify such relationship. It is entirely a different ball game. 

If certain religions condemn or derecognise such relationships, persons will be free to move out of such religions and join some other religion. After all freedom of choice of religion is one of the hall marks of Indian Constitution. 

Look at how law has solved partnership and limited liability issues, now we can have limited liability partnership. (LLPs) so there are various ways in which this issue could be sorted out with respect, to everyone involved, provided, there are no fundamentalist and rigid reasoning.

Let’s remember in a dynamic society, there is nothing permanent, everything is in a fluid state, and the viscosity, would depend upon the need for permanency. Even in Natural world, Eg., scientifically glass is a super cooled liquid and not solid but it does the work of solid.

Let, the judiciary and government think creatively, inclusively with due concern and respect for all kinds of human persons, the solution will just prop up.

Viva Human kind, Viva India. 

(The writer is a Professor of Law an Education Consultant)


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