ABSTRACT
Marriage is an union between two individuals established through religious ceremonies, or legal contract which is recognised socially or ritually.
In this modern era the definition of marriage has gone through various changes, historically the primary purpose behind performance of marriage was to procreation, transfer of property , and Maintenance of social order etc over the period of time the above mentioned purposes has evolved with love ,companionship and mutual support which has become more dominant in modern times. As far as cultural, social and legal aspects are concerned, there are various types of marriages such as monogamy , polygamy and same sex marriage which is a contentious issue and not accepted in many societies. On the one hand where same-sex marriages are getting recognition in many countries globally , on the other hand some countries are opposing the same owing to its negative consequences and challenges associated with it stating the reason that same sex marriage do not fulfil the very purpose of marriages i,e procreation, In this paper we will be discussing about various aspects of same sex marriage and challenges associated therein.
Key words: effects of same-sex marriage, constitutional rights, marriage act in India, section-377 of Indian Penal code, LGBTQ community rights and challenges.
INTRODUCTION
“The ability to choose one’s life partner goes to the root of the right to life and liberty” well said by our honourable chief justice D.Y chandrachud. The right to enter into a union called marriage includes the right to select one’s partner irrespective of caste , religion, and gender which is more relevant these days as instances of same-sex marriages are increasing globally. Failure on the part of society and also by law to recognise such unions is considered discriminatory and also violative of article 21 of our constitution which gives us a right of personal liberty at the same time there is need to aware people and the society also efforts from the government’s side is the need of the hour as there are various issues associated with it which will be discussed in this paper in the coming heads. [1]
RESEARCH METHODOLOGY
This paper has been written after taking into account various sources of information with respect to legal issues and solutions therein associated with same-sex marriages . Sources such as magazine, news articles, editorials, books, journals and websites etc has been used for the research purpose of this paper.
SAME-SEX MARRIAGE AND INDIA
As far as Indian constitution is concerned, neither it is expressly mentioned that right to marry comes within the ambit of article 21( which talks about right to life and personal liberty) nor under any other article, it is merely a statutory right. However, honourable Supreme Court of India through its various judgments threw light on the right to marry as a fundamental right thus it is to be recognised as a fundamental right under article 21 of Indian constitution , hence violation of this right becomes enforceable in the court of law.
HISTORICAL BACKGROUND
Today, same-sex marriage is being criticised By saying it an unnatural offence, the answer of the same can be given by a text in Rigveda, an ancient text which says, “ Vikriti Evam Prakriti” means what seems unnatural is also natural. Moreover, as per another ancient text named Kama Sutra instances of two men marrying each other have also been seen. For more examples there are epics like Ramayana, Mahabharata and sculptures of khajuraho temple as well as indus valley civilization, witnesses the practice of homosexuality in ancient era as well. [2]
Indian law
It was in 1987 when the struggle for LGBTQ+ rights gained momentum in India, wherein two policewoman married each other in Madhya Pradesh
It was during the British era When section 377 of Indian Penal Code, 1860 came into picture which deals with the criminalization of homosexualityAnd was used as a weapon to prosecute LGBTQ community .with the passage of time when people became aware, an organisation was founded in 1990s in order to raise voice against the discrimination being faced by such community.
It was in 2001 ,when section- 377 of IPC was challenged on the ground of violation of constitutional law under article 21
Which was considered to be a good step taken by our judiciary to promote equality among its citizens when it comes to same-sex couples as like other couples. But it broke the hearts of several queer couples when supreme court of India gave a decision not to legalise same-sex marriages and now it is upto the discretion of Parliament whether to legalise it or not.
Some judgements of Supreme court on same- sex marriages:
- Shafin Johan V. Ashokan K.M and others 2018
Honourable supreme court in this case held that women are free to choose their life partner and also have a right to live life in their own way while dismissing the ealier orders which were against the freedom of choice and religion guaranteed by our constitution.[3]
- Navtej singh Johar and others V. Union of India 2018
Supreme court gave a milestone decision in this case which held section -377 of Indian penal code, 1860 against the provision of constitution and decriminalized homosexual relationships. But consent of couples should be voluntary and free from any influence and coercion. Further it was also acknowledged by the apex court that a relationship between same sex couples , should be considered as their personal choice and liberty, which is protected under part-3 of our constitution and no one can take this right away from them. [4]
Same -sex marriage and negative externalities:
- Against the religious belief – As per many religious and cultural belief marriage is considered an union between a man and a women only, therefore marriage between the same genders is somewhere outside the scope of definition of marriage and thus becomes difficult for the society to accept and they argue that it would go against the fundamental principles of their belief and values.
- Issues with adoption of children – When such couples go ahead with the adoption of a child it leads to societal pressures, discrimination And in a country like India where society still not ready to accept homosexual relationships it becomes a challenge for adopted children to face the criticism of the society to which they are unknown and affects their mental well being in various ways which ultimately impact the future of such children.
- Gender division- In normal cases like marriage between a man and a woman it is easier to say the former is a husband of the latter or vice versa but in cases of same sex marriage who is going to be a husband , wife or mother and father this would be an issue in such marriages.
- Procreation- As the primary purpose of marriage is procreation and the couples of same sex can not have biological children, therefore same sex marriage goes against the natural order of things , against the rules , values of society and also wash out their expectations from a marriage.
- Legal issues- As far as same sex marriage is concerned it will create some legal problems like there are some laws such as inheritance, property tax and rights in which there are certain rights of husband and wife, mother, father, it would be quite challenging for legislators to make changes in the provisions as per the need to give protection to queer couples through legislation just like other couples.
Arguments in favour of same sex marriage:
- Impact on health –There is a positive relationship between the health and legal recognition of homosexual marriage. As per a study conducted to assess the impact of legal recognition of same sex marriage on the health, witnessed a positive impact on the mental and physical health of such couples, according to this study stress level found to be reduced during such period as compared to the couple living in the states where there is no access to legal marriage between homosexual couples.
- Equal Rights and protection under the law- Every individual irrespective of gender, caste, religion have the right to marry of his /her choice and form a family non recognition of same sex marriage amounts to discrimination and harm the dignity of such couples.
- Global acceptance –As of Now there are 32 countries around the world in which same -sex marriage is legal, therefore denying this right to individual of same sex in a democratic society like India would go against the global principles.[5]
- Biological gender- Supreme court of India in one of its judgement denied the concept of a man and a woman , states that changes can be made according to the changing needs of the society.
- Alternate methods- Same–sex marriage is opposed by saying that it can never fullfill the basic purpose of marriage, despite the fact that there is no mandatory condition to have children as per law, in cases where heterosexual couples due to infertility opt for alternatives like surrogacy and adoption then why it becomes debatable when it comes to homosexual couples? Hence Adoption and surrogacy are some options for queer couples who want to have children just like heterosexual couples.
Suggestions
Given below are some suggestions in this regard-
- Special marriage act 1954, which gives a liberal definition of marriage without any discrimination on the basis of religion, race , caste etc. Should also be extended to cover and protect the rights of homosexual couples just like it does with respect to heterosexual couples.
- The LGBTQ community should be given certain legal benefits like, inheritance, adoption, medical rights and tax benefits etc.
- There is also need for a new law as almost all the laws pertaining to marriages contain provisions with respect to husband and wife , be it conjugal rights, divorce related and domestic violence act 2005, all are concerned with the rights of husband and wife, thus such laws should be amended without upending existing laws to add more provisions related to same sex couples. [5]
Conclusion
After taking into account both the positive as well as negative aspects of same sex marriage , it can be concluded that homosexuality is not a new concept , it has a vast history which can be traced back to Indus valley civilisation and today it has become a contentious issue which can be resolved only with the collective efforts of each and every person be it a common man on the one hand while judiciary and government on the other. Only then we will be able to create a society where every individual will enjoy the right to freedom of choice and expression, widening the scope of article-21 of our constitution by recognising the right to marry as a fundamental right irrespective of genders.
Citations
[2] https://www.bbc.com/news/world-asia-india-67131106
[3] https://www.legalserviceindia.com/legal/article-9558-shafin-jahan-v-ashokan-k-m.html
[4]https://privacylibrary.ccgnlud.org/case/navtej-singh-johar-and-ors-vs-union-of-india-uoi-and-ors
[5]Baraily, Nivedita, The Need for Legalising Same-Sex Marriage in India: A Future Possibility or a Possible Apprehension? (July 15, 2022). Indian Journal of Law and Legal Research 2022, Available at SSRN: https://ssrn.com/abstract=3953994
Km Prachi,
Law Centre -1, Faculty of Law, Delhi University