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India’s top court refuses to legalize same sex marriages

Catholic Church leaders have welcomed the verdict by a Supreme Court bench, calling it ‘most appropriate’
An Indian same-sex couple walks outside their home with their adopted children in Bengaluru on Feb. 11. The Supreme Court on Oct. 17 declined to grant legal recognition to same-sex marriages, leaving it to the parliament and state legislatures to create such institutions and grant them legal validation

An Indian same-sex couple walks outside their home with their adopted children in Bengaluru on Feb. 11. The Supreme Court on Oct. 17 declined to grant legal recognition to same-sex marriages, leaving it to the parliament and state legislatures to create such institutions and grant them legal validation. (Photo: AFP)

Published: October 17, 2023 11:56 AM GMT

Catholic Church leaders have welcomed a verdict by India’s top court declining to grant legal recognition to same-sex marriages, saying the “Church too does not recognize such unions.”

The Supreme Court on Oct. 17 refused to legalize same-sex marriages but said the country had a duty to acknowledge LGBTQ (lesbian, gay, bisexual, transgender, queer) relationships and to protect them from discrimination.

Prime Minister Narendra Modi's government opposed the bunch of petitions seeking to legally codify same-sex partnerships in the five years since the Supreme Court struck down colonial-era laws banning gay sex.

“The court order is most appropriate,” said Father Jacob G. Palakkappilly, spokesperson of the Kerala Catholic Bishops’ Council (KCBC).

The Catholic priest told UCA News after the Supreme Court pronounced its verdict that some Western countries may have enacted laws to permit same-sex marriages, but that does not mean India should ape them.

“The union of marriage, according to the teachings of the Catholic Church, is between a man and a woman for the purpose of procreation and that is not the case with same-sex marriage,” he said.

The Supreme Court, according to Palakkappilly, has “upheld the law of the land that recognized a marriage between a man and a woman of marriageable age.”

Lawyers for several same-sex couples urged the court earlier this year to grant their relationships full legal recognition, but the five-member bench ruled that extending marriage equality was a parliamentary decision.

Parliament, legislatures to determine law on marriages

"It lies within the domain of parliament and state legislatures to determine the law on marriage," Supreme Court Chief Justice D.Y. Chandrachud said during his verdict.

The court's ruling held that the fundamental right to marriage for same-sex couples was not guaranteed by India's constitution under existing law.

It did grant marriage rights to couples where one or both members were transgender, provided one participant in the union identified as a man and the other as a woman.

The top court judges were divided in their opinions with two, including the chief justice, favoring same-sex marriages and three opposing it.

Chandrachud added that India still had a duty to acknowledge same-sex relationships and protect those in them from discrimination.

"Our ability to feel love and affection for one another makes us feel human," he said from the bench.

"This court has recognized that equality demands that queer unions and queer persons are not discriminated against."

The majority verdict has disappointed members of the LGBTQ community in India as they hoped to have the right to a legal union of marriage

The top court maintained that “civil unions between same-sex couples are not recognized under law and they cannot claim right to adopt children either”.

The majority verdict said, “entitlement to civil unions can be only through enacted laws and courts cannot enjoin such creation of a regulatory framework’.

“Queer persons are not prohibited in celebrating their love for each other, but have no right to claim legal recognition of such union,” the order categorically stated.

Queer persons have the right to choose their own partner and they must be protected to enjoy such rights.

The court directed the federal government to set up a high-powered committee to undertake a study of all relevant factors associated with same-sex marriage.

The minority opinion by the judges differing on the issue said, “Same-sex couples are entitled to recognize their relationships as civil union and can claim consequential benefits.”

They also held that “such couples have the right to adopt children” and struck down adoption regulations that prevented them from adopting children.

 “A same-sex marriage is totally against our tradition and culture”, says Daniel John, a Catholic leader based in Bhopal, the capital city of the central Indian state of Madhya Pradesh.

“As Indian Christians, we cannot subscribe to ideas such as same-sex marriages and the top court has done the right thing dismissing the demand for legal status to it,” he told UCA News.

However, John said that same-sex couples should not be harassed and allowed to lead a peaceful life even without legal status to their union, as “they are also children of God.”

The verdict was greeted with sadness and disappointment by a crowd gathered outside the court. They had hoped to celebrate India becoming the second Asian jurisdiction after Taiwan to legalize same-sex marriages.

"We are not satisfied with whatever the court has said," Siddhant Kumar, 27, told AFP.

"This has been going on for years, we have been struggling for legal recognition," he added. "We have to remain strong and continue our fight."

The petitioners had said validating same-sex marriage would help them access some of the legal benefits of matrimony, including adoption, insurance and inheritance.

'Complete havoc'

Modi's Hindu nationalist government staunchly opposed same-sex marriage and insisted that any change was up to parliament and not the courts.

"Any interference... would cause complete havoc with the delicate balance of personal laws in the country and in accepted societal values", the government said in its submission.

"Living together as partners and having sexual relationship by same-sex individuals... is not comparable with the Indian family unit concept of a husband, a wife and children", it added.

Siddhant Rai, 20, who was among the crowd outside the court, said he did not expect any official endorsement of same-sex marriage under the ruling Bharatiya Janata Party (BJP).

"I am disheartened by today's ruling," he told AFP. "As long as the BJP is there in power I don't see a judgment coming in our favor in the near future."

Marriages are governed by family laws for specific religions, such as the Muslim Marriage Act and the Hindu Marriage Act.

A landmark ruling in 2018 struck down the British colonial-era law criminalizing gay sex, and last year the court ruled that unmarried partners or same-sex couples were entitled to welfare benefits.

Acceptance of gay couples grew in the wake of the 2018 ruling. A Pew survey in June suggested 53 percent of Indian adults favored same-sex marriage while 43 percent opposed it.

But leaders from all of India's main religions – Hindu, Muslim, Jain, Sikh and Christian – also oppose same-sex union, with several of them insisting that marriage "is for procreation, not recreation."

More than 30 countries allow same-sex marriage while others recognize same-sex civil unions.

While much of Asia is tolerant of homosexuality, Taiwan became the first in the region to allow gay marriage after a landmark ruling by its Constitutional Court in 2017.

Vietnam, Thailand and Nepal have also taken steps towards the recognition of same-sex partnerships.

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2 Comments on this Story
ISAAC GOMES
It's a good decision by the Supreme Court. India is beset with a plethora of pressing problems (education, health, housing and employment generation) and certainly official stamp on unnatural unions, including the right to adopt children, would have dealt a big blow to the sacred institution of marriage in India. The Bible clearly says that marriage is a union of a male and a female. The first mention of marriage, Genesis 2:24, describes it as a man leaving his parents and being united to his wife. In passages that contain instructions regarding marriage, such as 1 Corinthians 7:2–16 and Ephesians 5:23–33, the Bible clearly identifies marriage as being between a man and a woman, primarily for the purpose of building a family and providing a stable environment for that family. India cannot be dictated by Western ideology of same-sex marriage which is encouraged primarily to push the agenda of multi-national pharmaceutical companies.
BRIAN REGAN
Thank God who created nature and its ways that the social/civil recognition of marriage has been confirmed by India’s supreme court as proper only for those unions which can produce children.
Asian Bishops
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