ABSTRACT
Through the institution of marriage, people are allowed to have families. It is a stable relationship that allows people to cohabit in society without experiencing any negative social effects. Not just the married couple, but the entire society as well as future generations, are impacted by marriage. Same-sex unions are a relatively new phenomenon in society. It wasn’t until the twenty-first century that same-sex marriages were conferred legal-recognition in modern culture and society in an increasing number of countries. Even though only a limited number of countries have made same-sex unions legal, their ramifications and repercussions are felt well beyond the borders of those countries and regions. In the coming years, same-sex marriages are expected to continue to be a divisive and important topic in local, national, and worldwide legal, political, and cultural contexts. Numerous states have adhered to the constitutional restrictions against gay marriages in the face of numerous protests from individuals and groups that insist that same-sex unions must be recognized as legal. Additionally, several nations, including India, do not have laws recognizing same-sex relationships. Consequently, irrespective of the span of their relationship, homosexual couples are exempted from many of the regulatory and monetary benefits that come along with being legally recognized as a married pair. These include career chances, the capacity to file combined returns for taxation, medical insurance, and posthumous rights, such as those deriving from an overseas inheritance, following the death of a spouse. They might also be particularly pertinent in light of the AIDS epidemic. Patriarchal de facto marriages are backed by all of these benefits in general culture, but LGBTQ+ people cannot take advantage of them. When we look at marriage and family structures from a global perspective, we observe a range of options for governmental recognition of different family structures. This research paper examines the common defenses of same-sex marriages and criticisms of them, as well as possible revisions to laws and policies in countries where it has become a serious political and legal issue whilst make the case that making marriage equality a reality may open up new socio-political and socio-legal avenues.
KEYWORDS
Marriage, LGBTQ+, Laws, Homosexual, Lavender marriages, Constitution
INTRODUCTION
Same-sex marriages is considered to be the practice of marriage between two people of the same sex, the union of either two women or two men, that develops into a long-lasting, stable, and in some jurisdictions as legally-recognized relationships. ‘Same-sex’ is an informal phrase that refers to any sexual interaction between a female with a female or a guy and a guy. According to the prior explanations, when we use the buzzword “same-sex,” we mean beings who have the same biological constitution, which is essentially connected with their sexual characteristics and physiological science[1]. Religions and civilizations both have the belief that same-sex partnerships are unnatural because they defy laws of the nature. Going even further back in time, the Greeks thought homosexuality to be an abnormal behavior. Some of these experts’ observations while attempting to define the natural laws of the cosmos regarding animals served as the foundation for this idea. Greek authors frequently held the view that childbearing remains the only purpose of sexual behavior. In 34 nations as of 2023, with a combined population of close to 1.35 billion people, or 17% of the human population, same-sex marriage is expected to be lawful and acknowledged, with the most recent example being Andorra[2]. The vast majority of heterosexual marriages in India have not been recorded with authorities, and marriage by common law based on customary standards maintains to be the most popular type of marriage. India is unwilling to acknowledge marriages between people of the same sex as a marriage under civil law[3]. The legalization with regards to the same-sex marriages has drawn fierce resistance from the Indian government, which has referred to it as an ‘urban elitist concept’ that undercuts social and religious norms. The social status conferred by marriage is just as important for same-sex couples as it is for heterosexual ones, anything otherwise shall be considered discriminatory against the homosexuals on the basis of their sexual orientation. According to a 2021 Ipsos survey, more than half of Indians agree LGBT couples should be granted an amount of judicial acknowledgment, and 66% agree couples should be entitled to foster offspring. In accordance to a subsequent Pew survey conducted in 2020, 37% of respondents—up from 15% in 2014—thought that same-sex unions ought to be permitted in the nation. Immediately following Taiwan’s parliament approval of a similar bill in 2019, India would eventually become the 35th country in around the globe and its second nation in Asia to allow marital equality if the case is successful. Nearly five years have passed since the Supreme Court reversed a 2013 decision that had sustained a 157-year-old legislation that dated back to the British colonial era and declared it unconstitutional. Even so, the LGBTQ+ community continues to lack equal rights in areas including adoption, divorce, inheritance, and property ownership. Simple things—like opening a joint bank account, purchasing health insurance, or purchasing a home—cannot be done by same-sex partners because Indian law does not recognize their partnership. For instance, in Indian law, only one member of a same-sex marriage is recognized as a parent, regardless of whether they were the one who gave birth to the child or adopted them as a single parent. Children of LGBTQIA+ couples are denied legal status for both parents since Indian law only recognizes heterosexual marriages.
According to the ruling in the 2018 case Shafin Jahan v. Asokan K.M. and others, depriving individuals an opportunity to get married according to their sexual preference is a breach of their basic liberties and rights, and that everyone, regardless of sexual orientation, should have the right to choose who they marry and enjoy the same legal benefit and protections as heterosexual couples. Legalizing same-sex marriages would have a significant impact on other Indian legislation. Being homosexual is not an evil; it’s merely an avenue to discover affection, pursue physiological gratification, or amuse oneself. Non-recognition of same-sex marriage amounted to discrimination that strikes at the root of ‘dignity and self-fulfillment’ of LGBTQIA+ couples[4]. A marriage may be declared voidable under Section 12 of the Hindu Marriage Act (1955) if one party’s impotence prevented the other from consummating the union. But same-sex relationships can also lead to marriage. Consummation can take place in a variety of ways, including anal and oral sex for gay couples and oral sex, fingering, and the use of sex toys for lesbian couples. It is empirically inaccurate to assume that consummation solely refers to penile-vaginal sex. Furthermore, it is a racist and out-of-date idea to need reproduction before marriage. This rule is not often followed in weddings. Furthermore, because to developments in medicine and science, same-sex couples may now conceive and raise children via procedures like surrogacy and IVF. Therefore, it is unjustified to deny same-sex couples the opportunity to wed on the grounds that they would be unable to successfully complete their union or have children.
RESEARCH METHODOLOGY
The paper is descriptive in nature and the research is based upon thorough study of case laws, recent developments and the relevant provisions of the Constitution of India. The primary sources used in the research are case laws which helped in the development of rights pertaining to the LGBT community as well as journals and articles.
REVIEW OF LITERATURE
The researcher has made thorough analysis of various provisions of the Constitution of India, such as fundamental rights and powers of Judiciary and Legislature. Apart from that various newspaper articles and editorials has been referred to which has contributed immensely to lay the foundation of the premises and conclusion of the arguments presented. In addition to the above-mentioned references, surveys and fieldworks has also been cited to reflect the view of the public, in general.
DECRIMINALISATION OF SECTION 377 OF THE INDIAN PENAL CODE, 1860
According to Section 377, which deals with ‘unnatural offences’, anyone who engages in voluntary carnal intercourse with a man, woman, or animal in violation of nature’s order shall be punished with either life imprisonment or imprisonment of either description for a term that may last up to 10 years, as well as being required to pay a fine[5]. The 5-judge Constitutional Bench, which comprised eminent luminaries like Chief Justice Dipak Mishra and Dr. D.Y. Chandrachud, pronounced Section 377 of the Indian Penal Code against the law to the extent as it made unlawful intercourse involving voluntary individuals of the identical sexes. Due to the Sepoy Mutiny of 1857, Section 377, a legislation was swiftly passed in 1860 to punish people who defy the ‘order of nature’. The Indian Penal Code was created by the British Imperial Authorities in the nineteenth century. The British legislation in effect at the time weighed heavily on the entire law, which was also filled with cumbersome clauses like section 377. The Buggery Act, a piece of legislation from the sixteenth century, surrounded Section 377 Indian Penal Code. The Delhi-based NGO Naaz Foundation and Bhedbhav Virodh Andolan brought up section 377 issue for the first time in court in the year 2001, but their petitions were denied. Since the Delhi High Court ruled that the penal provision was constitutional and dismissed the petition, sex between consenting parties of the same gender has been made a crime for eight years. The High Court’s 2009 decision which decriminalized gay sex was overturned by the Supreme Court in its 2013 ruling, which also rejected a review request. When the supreme court ordered the government to recognize transgender people as a third gender and included them in the OBC quota, the eligible community gained some optimism in 2014. The supreme court upheld the right to privacy as an essential right guaranteed by the Constitution on August 24, 2017. Additionally, the court urged equality and condemned discrimination, emphasising that the protection of sexual orientation is at the core of fundamental rights and arguing that the privileges of those who identify as LGBTQ are valid and based on democratic accepted standards. A petition submitted by five people requesting that the Supreme Court reconsider its ruling on Suresh Kumar Koushal v. Naz Foundation was considered in January 2018 by a three-judge Supreme Court bench. A bigger bench was consulted in this matter, and assistance from the center was also sought. Gender equality advocates and activists have claimed that Section 377 allegedly infringes on several Indian Constitutional provisions, including the rights conferred by the State to not deny to any person within the territory of India the equality before the law or the equal protection of the laws, according to Articles 14 of the Constitution of India.[6]. Article 15 prohibits unfair treatment of inhabitants on the grounds of their religion, race, caste, sex, place of birth, or any combination of these[7]. Additionally, Article 21 guarantees that no one may be dispossessed of their life or personal liberty until doing so in accordance with an administrative procedure[8]. Finally, by its ruling in the case of Navtej Singh Johar & Others v. Union of India dated the third quarter of 2018[9], the Supreme Court overturned the provisions made under Indian Union proposed Act Section 377 which made it illegal for same-sex couples to engage in consensual sexual activity. The choice to secede safeguards those who identify as LGBTQ from the limitations of gender injustice, but it additionally affords them the freedom to be themselves, the right to privacy, life and liberty, the ability to make independent choices, and the freedom to communicate themselves in whatever way they choose. The judgement ought to be looked upon as an iconic instance of the manner in which the Indian Judiciary repeatedly steps up to address the injustice experienced by the strata of society that are subject to discrimination. Above any other attribute, judgement determines individuality. Using an analogy, the Court concluded that voluntary sexual conduct involving homosexual partners should not be classified as an unnatural criminal under Section 377 IPC if it does not constitute rape. There is no definition of the phrase “against the rhythm of nature.” It irritates not solely the basic entitlements to confidentiality and preference, nonetheless the dignity of individuals. Every individual’s entitlement to privacy includes their freedom to disclose their sexual preference, including people from the LGBT community. Articles 14, 19, and 21’s tripartite test reveals that the section malfunctions. Independence to make decisions cannot be curtailed or hampered under the potential risk of felony prosecution or rendered handicapped based on the erratic impressions of the majority. The community deserves the same rights and respect as every individual, and discrimination based on a person’s sexual orientation gravely breaches that person’s human dignity and sense of self-worth, according to the Supreme Court, which deemed this clause to be unconstitutional. Giving the community a new setback while making a decision about consent sex.
LEGISLATURE V. JUDICIARY
India is one of the nations with a mosaic of socio-religious views and practices in the world. Therefore, every issue that could significantly alter our society’s basic structure or have an impact on our socio-cultural or socio-religious values must go through the legislative process. The laws passed by the legislature are unquestionably democratic in nature because they are the result of extensive consultation with stakeholders and represent the views of all facets of society. The public holds the legislature liable. Given the sensitivity of the same-sex marriage issue and the wide range of stakeholders from various socio-religious backgrounds, it is advised that the competent legislature deal with this after an extensive consultation process involving relevant social and religious organizations instead of the judiciary, which is hearing the petitions under Article 142 of the constitution.
The legislative branch is the sole entity that can decide whether to legalise marriage and how it will be regulated because it represents the collective intellect and the conscience of the nation and takes into account values of culture, norms of society, along with other aspects that characterise appropriate behaviour among humans when legislating regarding enforcing enabling, or preventing relationships between individuals. The choice in question ought to be made after an effective congressional process involving input from all pertinent parties. The issue requires further analysis and cannot be resolved by interpretation by the courts. This issue should be brought up in Parliament for further consideration. The question necessitated prolonged discussion, which was not possible within the constrained courtroom adjudicatory confines. Consequently, it is not advisable for the court to get involved in this case[10]. Reminiscence of public reactions in rulings of the Supreme Court as was in Jallikattu and Sabrimala verdict, among others which were considered to be in stark contrast to the public opinion should must not be forgotten.
SPECIAL MARRIAGE ACT, 1954
The Special Marriage Act of 1954 affords an official form of matrimony for couples deemed unqualified to be married within their own personal laws. It is intended that everyone would be treated equally as citizens and have the same privileges. A declaration of marriage in a vacuum- must be formalized into practical impact of any two people’s lives. To execute that greater constitutional power, it is being argued to make the provisions of Special Marriage Act to be gender-neutral. Marriages between people of the same gender should be safeguarded through the Act to the same extent as interfaith and inter-religious partnerships are. Alternatively, considering that it does not allow for the solemnization of wedding involving couples of identical sex, the Act should be regarded as violating the basic entitlements to equality and a life of dignity.
Since the Special Marriage Act differentiates against heterosexual and homosexual couples, it has been submitted that it is Ultra-vires, or outside the scope of the constitution. In accordance with the Act, same-sex couples are not only deprived of legal protections but also the social endorsement and prestige that go along with their union. It was previously asserted that the roughly 15 statutes that defended LGBTQ+ people’s entitlement to benefits like pay, remuneration adoption, and surrogacy did not apply to them. The 1954 Act’s gender neutralisation was the only objective. It was asserted that the use of gendered terminology, such as ‘male’ and ‘female’, ‘husband’ and ‘wife’, and ‘bride’ and ‘bridegroom’, hampers availability and should therefore be eradicated.
LEGAL ACCEPTANCE V. SOCIAL ACCEPTANCE
Couples and their families gain social and financial benefits from marriage. By fostering security and stability, allowing same-sex marriage improves families and communities. The notion that marriage should only be between men and women is shared by numerous religious and cultural organizations. They contend that altering the conventional definition of marriage would be contrary to the core values and beliefs they hold dear. Some people contend that procreation is the main goal of marriage and therefore same-sex couples are not allowed to have biological children. Since same-sex marriage violates the natural order of things, they contend that it should not be permitted. The legal ramifications of same-sex marriage, including issues with inheritance, taxes, and property rights, are a concern. Some claim that changing all the laws and rules to allow same-sex marriage would be too complex. The findings of CSDS-Lokniti & Azim Premji University’s 2018–19 study of in excess of 24,000 interviewees spanning 12 Indian states, 19% of the Indians are supportive of relationships of the same sex[11]. India is a culturally diverse nation with a range of societal and religious norms. The cultural sensitivities of various communities must be taken into account in any legislative or judicial judgement regarding same-sex marriage, while also ensuring that people’s fundamental rights are safeguarded. In terms of social acceptance of the LGBTQ+ community, India still has a long way to go. Before considering same-sex marriages, education and awareness initiatives should be created to encourage acceptance and understanding of heterosexuality.
SUGGESTIONS AND CONCLUSION
The community of LGBT individuals seeks a legislation against discrimination that enables them the opportunity to build harmonious partnerships and fulfilling lives irrespective of their sexual orientation or gender identity and sets the responsibility for transformation on the government and society at large instead of the subject. While making any legislation concerning same-sex marriages, followings must be considered indispensable:
- Legislators and other decision-makers should oppose class-based relationship-recognition exclusionary laws that are connected to procreative and child welfare concerns;
- Family policies based on ‘the facts of nature’ should not be adopted by legislators or other officials;
- There are no easy solutions for encouraging responsible reproduction;
- An emphasis on disparities is insufficient to enhance child wellbeing; and
- Gender should matter less in parenting, not more.
certainly not much debate that in the event that members of the LGBTQ community are afforded access to the entire range of constitutional rights, same-sex couples wishing to get wedded ought to be guaranteed the basic liberty to marry the person of their choice. In total, over a dozen countries are recognising relationships among individuals of the same gender. Not enough progress has been accomplished by simply decriminalising homosexuality; LGBTQ+ persons require equality in all spheres of life, such as the workplace, the home, and public places. As a result, it is yet unresolved how same-sex weddings will develop in India.
Researcher: Sakshi Kumari
Chanakya National Law University, Patna.
[1] Team EduBirdie, An overview of same sex marriage, EduBirdie, https://edubirdie.com/examples/an-overview-of-same-sex-marriage/
[2] Team The Encyclopedia of World Problems and Human Potential, Homosexual marriage, The Encyclopedia of World Problems and Human Potential, http://encyclopedia.uia.org/en/problem/homosexual-marriage
[3] Team Wikipedia, Recognition of same-sex unions in India, Wikipedia, https://en.wikipedia.org/wiki/Recognition_of_same-sex_unions_in_India
[4] Sudipta Dutta, Explained | What is India’s stand on same-sex marriage?, The Hindu, https://www.thehindu.com/news/national/explained-what-is-indias-stand-on-same-sex-marriage/article66636166.ece (March 19, 2023 04:12 AM)
[5]Indian Penal Code, 1860, Section 377.
[6] Constitution of India, 1949, Article 14.
[7] Constitution of India, 1949, Article 15.
[8] Constitution of India, 1949, Article 21.
[9] Shruti Verma, Case Summary: Navtej Singh Johar v. Union of India, Legal Service India, https://www.legalserviceindia.com/legal/article-6402-case-summary-navtej-singh-johar-v-s-union-of-india.html
[10] PTI, SC must let legislature decide on same sex marriage, says lawyers’ body, Times of India, https://timesofindia.indiatimes.com/india/sc-must-let-legislature-decide-on-same-sex-marriage-says-lawyers-body/articleshow/99735621.cms (April 24, 2023, 06:32 PM)
[11] Nikhil Rampal, Neither ‘urban’ nor ‘elitist’ — what data shows about Indians’ views on same-sex relationships, The Print, https://theprint.in/india/neither-urban-nor-elitist-what-data-shows-about-indians-views-on-same-sex-relationships/1529820/ (April 20, 2023, 06:53 PM)
Informative
Indeed, a good read!