Warts & all, marriage as choice for all

Five years after decriminalising homosexuality and affirming the constitutional rights of the LGBTQ+ community, the Supreme Court on Tuesday passed the buck of providing legal sanctity to marriage between same-sex couples. The five-judge bench stated that it's not for the judiciary to make a law that expands the definition of marriage, but seemingly only to say it's the right thing to do.

Instead, it's for Parliament to change the Special Marriage Act (SMA) 1954. It observed there was 'no unqualified right' to marriage, and same-sex couples can't claim it as a fundamental right. The petitioners had argued that replacing 'man' and 'woman' with 'spouse' in SMA could give them 'marriage equality'.

GoI, instead, argued that abrupt changes may trigger social instability, and that only Parliament has the right to decide on the issue. Thus, the missing of an opportunity to showcase 'conservative progressiveness' - what expanding membership of marriage to those serious about the age-long institution amounts to - in circa 2023 India.


It's important to home in on one basic question: why is marriage, despite its declining clout and value in the relationship, if not the marital alliance market, sought as a legal option by all segments of society, non-heteronormative members included?

This is because rights, social sanction and status still flow from the legal stamp of marriage. So, it must be provided as a choice in the menu for everyone, irrespective of their sexual orientation. The same holds true for divorce. As the court rightly observed, marriage is not a static institution. If child marriage was once a norm and legal, and inter-faith marriage was once neither, the club rules of marriage have to change with time.

The court has asked GoI to set up a panel to address the raft of concerns of same-sex couples like obtaining ration cards, pension, gratuity, as well as succession and property rights. These are valuable directives legislators must not sidestep. After all, the marital institution has an awaiting, much-needed votary.