Same Sex Marriages in India

Abstract

Marriages in India have always been linked with culture, society and religion, it is a legally recognized union between a male and a female, who are called husband and wife respectively. But in recent times there has been many instances of homosexual marriages, often known as same sex marriages. The LGBTQ community has taken one more step to achieve their target of getting equal recognition as others. However, a quite strong opposition is received by them in respect to their demands, a lot of people seem to be against this modernized concept of marriage, but there are a lot of proponents for the same. The objective of the study is to give a brief and generalized overview on same sex marriages in India. The research paper also discusses the judicial aspect, with the acceptance and opposition by the general public. The research paper also explores on homosexuality, which was also a debated topic back some time. The paper ends with some suggestions and recommendation on homosexual marriages and its genuine impact on Indian society.

Keywords

Homosexuality, Marriages, Rights, LGBTQs, Couples, Human Rights

Introduction

Homosexuality was decriminalized by the Supreme Court in 2018 after a very long deliberation, giving the LGBT community freedom to safely express their sexual orientation. On 6 September 2018, consensual gay sex was legalized by India’s Supreme Court.[i]

Section 377 of the Indian Penal Code (IPC), dating back to 1861, makes sexual activities “against the order of nature” punishable by law and carries a life sentence[ii].

India has traditionally considered same sex unions as an alien culture specific syndrome, according to which the ones, who identified themselves as homosexuals, had a psychiatric diseases which separates them from the ones who are normal. This led to a lot of discrimination towards the homosexuals and same sex couples.

Religious leaders of different religions also, opposed same sex marriages, citing it being unnatural and anti-religious.[iii] Still there are both conservative and liberal views on homosexuality and same sex marriages in different religions. A liberal view is presented by Mathematician Shakuntala Devi, in her 1977 book, The World of Homosexuals, in which she interviewed Srinivasa Raghavachariar, head priest of the Srirangam temple. According to him, same-sex lovers must have been cross-sex lovers in a former life. The sex may change but the soul retains its attachments, hence the love impels these souls towards one another.[iv]

The opposition on the other hand is quite dominant, as there are petitions and open letters being sent to the higher authorities, a news article reads the same, “Today other religious leaders released separate open letters sent to the Chief Justice of India, Dhananjaya Y Chandrachud, and to the President of India Droupadi Murmu. In it they state that any attempt to give legal recognition to same-sex marriage would wreak havoc in the legal system and social structure”[v].

But in recent times LGBTQ community have been welcomed in the major domain after their unabating hustle, for their recognition. They are a following a step by step approach to gain their right in the society. This started with, the landmark ruling, decriminalizing homosexuality in 2018,[vi] in Navtej Singh Johar vs. Union of India (2018), after which homosexuality at some extent became indulgent in the contemporary India, now they are focused on the right to equality for LGBTQ, pertaining the Right to marry.

Research Methodology

The research is being conducted by secondary sources. Websites, journals and news articles have been used for the deep analysis of same sex couples and their marriages. The paper has been written in descriptive form.

Research Objective

• To enunciate the ongoing status on the same sex marriages.
• To determine the impact of the legality of homosexual marriages.
• To assess both sides of the debate.

Hypothesis

Considering the fact that, if homosexuality is legalized in India, there would be more acceptance from the future generation and this would slowly make a progress in changing the age old rigid belief that homosexual marriages would disturb the societal values and morals. It has been a proven fact that after the decriminalization of homosexuality, there was acceptance of LGBTQ people by the others, especially the youths. Even though slowly, but steadily, this striking down of Section 377 proved beneficial in protecting this section of society.

Review of Literature

The LGBTQ community has a long recorded history in Ancient India due to the prevalence of the accepting Hindu spiritual traditions[vii] and cultures across the subcontinent, with a turbulent period following Islamic and European colonialism that introduced homophobic and transphobic laws, thus criminalizing homosexuality and transsexuality. Following which homosexuals and LGBT people were looked down and discriminated incessantly. Being homosexual was not at all acceptable and it was considered as a sin. But slowly and steadily this concept was also  modernized and people became permissive to them and henceforth LGBT community got some share of their rights. Let us review some major heads of this concept.

Homosexuality

Homosexuality traces its identity back in Ancient India vindicating the presence of varied sexual orientations and the identity of transgender persons. Going by the religious texts and history, pre-colonial India seemed much more tolerant towards owning sexuality, texts, inscription, painting on the temple wall all gave some tit-bits of presence of transgender in India during that time. Purushayita in the Kama Sutra, a 2nd century ancient Indian Hindu text, mentions that lesbians were called “swarinis”. These women often married other women and raised children together. The book further made mention of gay men or “klibas”, which though could refer to impotent men, represented mostly men who were impotent with women due to their “homosexual tendencies”.[viii] Also there has been some religious leaders and beliefs that homosexuals were punished and forbidden to become a part of the society after britishers began their rule in India. However, currently India is in catch 22 situation with granting LGBT community their right to marry to the same sex. Citizens have been divided in two sides, with the majority opposing same sex marriages, whereas, others are of the view that, same sex marriages should be welcomed.

Viewpoints against Homosexual Marriages

Opponents of gay marriages held the view that, these marriages would shake the overall structure of society, where a legitimate marriage is considered to be the one where a male and a female ties the knot, and then produce offspring who will keep their family alive by doing the same. The union government has filed a counter affidavit in Supreme Court in response to a whole lot of petitions demanding legalisation of same sex marriages, the government says that” the notion of marriage presupposes the union of two persons of opposite gender”. The decriminalisation of Section 377 of IPC does not include the approval of same sex marriages, and hence it does not comes under the Indian concept of marriage. “Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender. Living together as partners and having sexual relationship by same sex individuals [which is decriminalised now] is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man husband’.: biological woman as a ‘wife’ and the children born out of the union between the two who are reared by the biological man as father and the biological woman as mother,” the petition reads.[ix] The dissenting views also asserts that, the procreation of children which is the basis of running the human species, would be failed if same sex marriages are allowed, they also opine that the children if adopted and raised by same sex couples would also become a homosexual. The Shri Sanatam Dharm Pratinidhi Sabha opined that the concept of same-sex marriages is “catastrophic” and that it would have a “pernicious effect” on Indian culture and society. The Hindu body quotes the Vedas, saying “those who have wives truly have a family life; those who have wives can be happy; those who have wives can have a full life”. It refers to stanzas from the Manusmriti that state “to be mothers were women created, and to be fathers, men”.[x]

Viewpoints for Homosexual Marriages

Proponents of same sex marriage argue that, Right to equality, which is a fundamental right is been snatched from the LGBTQs by denying same sex marriages. “Love is love” has been the notion of the homosexual couples in their fight. Winning the battle four years ago after decades of stigma and isolation, they are now optimistic to win this battle too. Many colleges have held talks on gender identity, queer literature festivals have been organized and many young people in gay relationships are open about their sexual leanings. “The LGBTQ should have a right to a life of dignity and to the institution of marriage and family which is available to others.” Senior advocate Menaka Guruswamy stated that marriage is “not only a question of dignity but a bouquet of rights that LGBTQ people are being denied post-Johar (Navtej Johar vs Union of India), like life insurance or medical insurance.”[xi] Also, the children raised by the LGBTQs have been performing well in academics as compared to the ones raised by the hetrosexuals, a study in US stated the same. The youth comprises the majority of the people who are welcoming same sex marriages, this shows that there is no harm in legalizing these marriages, as the main contention is that the coming generation would be affected, if these marriages would be legalized.

Judicial Viewpoint

The Supreme Court of India has not yet come to a conclusion on the ongoing case, the judges are hearing and contemplating, while India is waiting for the final verdict. The most important judicial aspects is, the marriage laws in India, as where the homosexual marriages would be fit in, if legalized. Many demand that these type of marriages can come under Special Marriage Act 1954, while there are different marriage laws in India.

• The Hindu Marriage Act 1955
• The Indian Christian Marriage Act, 1872
• Muslim Personal Law (Shariat) Application Act, 1937
• Parsi Marriage and Divorce Act, 1936
• Special Marriage Act,1954

Suggestion

Since homosexuality is a debated topic and been in discussion from a long time, it would require a lot of contemplation to give genuine recommendation. Since homosexuals have been bullied, isolated and made fun of, from decades, their rights should be upheld and they should be viewed as a normal human being, not only by educated or modern youths, but also by people who are not that much aware of them. This could be slowly made possible by upholding their right to marry in the same sex. However, it is also a great concern that the ones who are of dissenting view, should be heard, as people have never seen these types of marriages and they cannot be compelled to welcome such marriages quickly, because any kind of compulsion would only lead to hatred and anger.

Judiciary should welcome the views from different section of societies too, however baseless assertions like homosexuality being a psychotic disorder shouldn’t be entertained as there has been no scientific proof on the same. When Taiwan became the first place in Asia to legalise same sex union, many homosexual couple got a satisfaction and it also motivated them to come out and not live under a mask of being hetrosexual, because of the fear of bullies. Likewise, even India gay couples could come out and not end up doing something unreasonable. Youth can play a very vital role in changing and educating their surrounding ones on the same, which could prove beneficial to end this ongoing issue on a good note.

Conclusion

Same sex marriages is a critical issue right now for the Indian Judiciary to take an action on, even after 4 years of Supreme court judgment on decriminalization of homosexuality, there are people who believe that homosexuality is a disorder and they bully the innocent ones who then suffer from mental agony and suffering, due to which they end their life, this needs to be stopped. The same sex marriages can be legalized in India, but this will lead in a drastic change in marriage laws, therefore a more careful approach is indeed required. While talking about moral and ethical views, there is no substantiation as to why a consensual same sex marriage would nullify any morals or ethics of Indian Society, even in ancient text there is presence of transgender, only the mindset of others and genuine problems, which are otherwise stated in the research, are the ones to be pondered upon rather anybody coming and criticizing a certain section of society, only because of their sexual preferences. In Delhi HC solicitor-general Tushar Mehta said that same-sex marriages are against “our law, legal system, society, and values”. Democratic institution should take an acceptable amount of time to give their judgment, unlike the one which took 24 years just to allow people to openly love someone despite their gender similarity. Keeping aside the political belief the judiciary could allow the LGBTQ community to get their marriage registered under the Special Marriage Act, 1954, this could be valid and could settle accounts with the religious disagreement.

The point here is not to disagree with the opponents of same sex marriages, but to realize that, it is high time that a person should be granted the right to choose their partner without thinking about his/her sex, India has developed itself with the time, whether it is a historic tax reform (introduction of GST), or technology readiness, or fighting a major outbreak like COVID-19 with whole country being locked down. So why not now? When the 14th Amendment’s Equal Protection Clause, which says states must guarantee equal protection under all laws to all groups of people. This means states can’t exclude gay and lesbian couples from their marriage laws.[xii] Nevertheless, it needs to be seen how effective and practical our judiciary could be. There is, moreover, a growing perception that the current stance of not promoting marriage between homosexuals does not support homosexuals or protect society as a whole. Therefore, in order to progress towards human rights we need to legalize same-sex marriages.

Author:

Aniruddh Raghuvanshi

Government New Law College, Devi Ahilya Vishwavidyalaya, Indore

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[i]   Rajagopal, Krishnadas (6 September 2018). “SC decriminalises homosexuality, says history owes LGBTQ community an apology”. The Hindu.

[ii] Harris, Gardiner (11 December 2013). “India’s Supreme Court Restores an 1861 Law Banning Gay Sex”. The New York Times. Retrieved 4 April 2014.

[iii]  https://www.ucanews.com/news/indian-religious-leaders-oppose-same-sex-marriages/100870

[iv] Arvind Narrain; Gautam Bhan, eds. (2005). “Because I Have a Voice: Queer Politics in India”. Yoda Press. p. 155. It started in 1977 with the publication of a book by a woman who is better known as a mathematician. Shakuntala Devi’s The World of Homosexuals can be said to have inaugurated social-reformist homophilic Indian writing in English. She concluded her book by calling for not only the decriminalisation of homosexuality in India, but also its ‘full and complete acceptance’ by the heterosexual population so that the Indian homosexual may lead a dignified and secure life.

[v] https://www.asianews.it/news-en/Indian-religious-leaders-tell-the-Supreme-Court-to-say-no-to-same-sex-marriages-58082.html .

[vi] https://time.com/5388231/india-decriminalizes-homosexuality-section-377/

[vii]  Vātsyāyana (1929). KāmaSutrā. Benaras: Jai Krishna-das-Haridas Gupta. p. Verse 2.9.36. ISBN 0192802704.

[viii] https://track2training.com/2020/07/23/homosexuality-in-ancient-india/

[ix] https://thewire.in/law/union-government-opposes-same-sex-marriages-in-supreme-court

[x] https://www.thehindu.com/news/national/the-various-petitions-around-same-sex-marriage/article66748868.ece

[xi] https://www.shethepeople.tv/home-top-video/menaka-guruswamy-on-same-sex-marriage-supreme-court/

[xii] https://www.vox.com/2015/6/26/17937562/same-sex-gay-marriage-argument-lgbtq-rights