Abstract:
Same-sex marriage means the union of two individuals of the same sex who choose to have their relationship legally and socially recognized as marriage. Recently this has gained remarkable attention across India. Even after the “Johar judgment” of 2018, which partially repealed Section 377 of the Indian Penal Code, decriminalizing consensual homosexual acts between adults and upholding the rights to equality under Article 14, right to life and personal liberty under Article 2, right to non-discrimination under Article 15 and right to privacy. Even after this, the topic of gay marriage is still full of controversies.
I am writing this paper to explore the legal, social, and cultural dimensions of same-sex marriage in India.
Through the help of a literature review, case studies, and legal analysis, this research highlights changing views on LGBTQ+ rights in India, and the implications for future reforms. The study further examines the interrelationship between social norms, constitutional rights, and the emerging role of the judiciary in shaping India’s approach to same-sex marriage.
Keywords:
Same-Sex Marriage, LGBTQ+ Rights, India, Johar Judgement, Section 377, Social Norms.
Introduction:
Marriage is a legally recognized contract between two individuals that has significant political, legal, social, and economic aspects. It also involves various rights and responsibilities, including property and inheritance rights.
In India, marriage has diverse religious laws that are governed by different religions such as the Hindu Marriage Act and the Special Marriage Act that allows for interfaith marriages. However, same-sex marriage remains illegal in the country even after all the ongoing efforts to decriminalize same-sex marriage to get it legal recognition.
The issue of same-sex marriage has gained attention because in India marriage is defined as a union between a man and a woman. In the year 2018 when Section 377 of the Indian Penal Code was decriminalized. The judgment declared consensual same-sex relations shouldn’t be criminalized in the country. This was a huge victory for the LGBTQ+ Rights in India. But still same-sex couples face many legal challenges like lack of acceptance and recognition of their relationship status, which impacts their rights to inheritance, healthcare, and more.
Recently the Supreme Court’s ruling in Supriyo Chakraborty v. Union of India reaffirmed that the right to marriage is not a fundamental right and dismissed the plea for same-sex marriage by calling on Parliament to frame appropriate laws for same-sex marriage. The highlights of this ruling were the challenges faced by the LGBTQ+ Community like societal & legal challenges in India. It was particularly a clash between the perspectives of traditional cultural beliefs and evolving legal perspectives on equality.
The legalization of same-sex marriage is critical to LGBTQ+ individuals for them to be provided with the same rights and benefits as heterosexual couples in the country. This will help the LGBTQ+ community get social acceptance and cut off discrimination from society. As society will start the adoption of inclusive laws that recognize the right to marry.
Review of Literature:
Same-sex marriage remains a significant point of debate in India to be legally recognized. Even after homosexuality was partially decriminalized after the Navtej Johar v. Union of India (2018) judgment. Some scholars focused on the constitutional aspects of LGBTQ+ rights, some of the scholars are Amitava Chowdhury (2020) and Subhadra Chatterjee (2019), analyzing the impact of the judgment on fundamental rights like privacy, equality, and non-discrimination under Articles 14, 15, and 21 of the Indian Constitution. They highlight the gap that remains regarding same-sex marriage, even after homosexuality was decriminalized and seen as a victory yet full legal recognition of same-sex unions has to be achieved.
Ashok Kumar (2018) and Madhavi Menon (2017) examined the societal attitudes on the cultural side towards homosexuality, they revealed that the cultural obstruction remains a significant barrier to the acceptance of same-sex marriage in Indian society. Despite all the legal progress, public opinion is still shaped by conservative religious beliefs and traditional norms, especially in rural areas. A survey was conducted by Kumar & Singh in the year 2019 showing that urban and younger populations are more supportive of same-sex marriage but older and rural areas of the society still oppose it.
International Comparative Study by Martha Nussbaum and Gayatri Patel (2021) showed how countries like America and Canada have successfully legalized same-sex marriage, changing public opinion, and advocacy efforts.
This shows how international experiences could provide valuable lessons to India as its unique challenges towards same-sex marriage and upgrade the rights in the country
Overall, the literature states that even after the legal landscape has evolved still social acceptance and cultural norms remain a major barrier for the legal recognition of same-sex marriage in India.
Research Methodology:
This research adopts a multidimensional, qualitative approach to explore the complicated issue of gay marriage in the Indian context. It aims to analyze the subject through a combination of legal analysis, socio-cultural understanding, historical perspective, and comparative the insights globally. The methodology is made to explore the legal, cultural, and social dimensions of same-sex marriage, providing a historical view of how India can look on the issue of LGBTQ+ rights and marriage equality.
Legal Analysis: A significant part of this study relies on theoretical legal research to examine the legal framework affecting same-sex marriage in Indian society. According to this, studying the
Constitution of India and going to its depth, mainly focusing on its fundamental rights provisions, such as Article 14, Article 15 , and Article 21. These articles are important for understanding the basis on which same-sex marriage can be legalized in India, and how Indian laws supports LGBTQ+ rights.
The paper will also analyze important Supreme Court judgments such as Navtej Johar vs Union of India, 2018, where decriminalizing homosexuality was a landmark moment for
LGBTQ+ rights.
While the ruling has removed the legal stigma attached to homosexual relationships, same-sex marriage could be legalized remains open. Also, the research will look deep into the Indian Penal Code (IPC) and its evolution, particularly given under section 377, according to which homosexual acts has criminalized historically. By putting light how these laws have been shaped over time, this paper will assess whether legalizing same-sex marriage in India is possible or is still a far -fetched challenge.
Doctrinal Legal Research: The main focus is on the legal analysis of the constitutional and judicial framework surrounding same-sex marriage. This includes examining landmark judgments such as Navtej Johar vs Union of India (2018), which decriminalized homosexual relationships, and Suresh Kumar Kaushal vs Union of India (2013), this study explored how
Constitutional rights under Articles 14, 15, and 21 affect same-sex marriage and evaluates recent judgments like the Supriyo Chakravarti vs Union of India, which gave suggestion that Parliament should legislate on same-sex marriage.
Cultural and Historical Analysis: This research examines India’s historical and cultural relationship with homosexual relationships by reviewing ancient texts such as the which reference gender and sexual diversity.
It also looks on the impact of colonial laws such as section 377 of the Indian Penal Code, which criminalized and challenged the notion that homosexual relations are important.
Empirical Social Research: This focuses on understanding the public opinion and
cultural attitudes towards same-sex marriage through surveys, interviews, and case studies.
This research analyzes the divide between urban and rural attitudes. A special focus is given to the experiences of the LGBTQ+ community and the impact of Section 377.
The study also puts light on the insights from legal professionals, activists, and policymakers to understand the socio-political boundaries to legal recognition. Comparative Global Analysis: The study takes a comparative approach and looks at countries such as the United States, Canada, and more which have already legalized same-sex marriages. By analyzing their legal reforms, changes in public opinion, and advocacy strategies, the research identifies lessons and paths that India can consider to advance marriage equality.
Policy Analysis and Recommendations: Finally, the research examines the legal and social implications of recognizing same-sex marriage, including effects on property rights, inheritance, adoption, and access to healthcare. The study proposes possible reforms, such as amendments to the Special Marriage Act, and also makes recommendations for overcoming cultural resistance through public education and inclusive legislation.
Suggestions:
As marriage holds a profound role in Indian society in every religion and culture. When it comes to same-sex marriage the Indians have their perspectives and opinions for it in terms of their religious and cultural beliefs. This complicates the recognition of same-sex marriage in the society. To let this be addressed with a good potential then it has to involve the introduction of civil unions either by revising the Special Marriage Act of 1954 to grant legal recognition and rights for same-sex couples to bypass the religious norms. This can help to provide solutions for the discrimination and the other things faced by LGBTQ+ couples in a legal framework like the countries that allow same-sex marriage like THE US, Canada, and New Zealand by providing all the rights to same-sex couples that heterosexual couples have while minimizing opposition from religious groups.
Even after Bhartiya Nyaya Sanhitha has made progress in achieving gender neutrality even though currently it lacks explicit provisions for LGBTQ+ rights for tailored legislation to protect the queer community. Although the year 2018 decriminalization of homosexuality was a significant victory still the full legalization of same-sex marriage depends on Judicial support, progressive legislative reforms, and changing public attitudes toward same-sex couples and marriage. This all together can help the LGBTQ+ Community get equality and safeguard in India.
Conclusion:
The conclusion of the Supreme Court’s decision on Same-sex marriage in India for get them legal recognition of the LGBTQ+ Community by protecting their rights. As the Indian government opposes it raising concerns about the preservation of the traditional family structures, the acceptance of same-sex marriage by the Global trends signals a shift in societal values. Many countries like the U.S., and Canada including 40 more countries have legalized same-sex unions, this is a clear signal to ensure the equality of everyone in society including the LGBTQ+ Community. If the country denies same-sex couples the right to marriage and does not let them have legal acceptance will show discrimination and inequality. The Laws should be set not only for the marriage of same-sex couples but also for their legal acceptance & adoption, inheritance, and other rights. Public awareness is much needed to break this barrier and overcome the inequality and discrimination towards the LGBTQ+ Community.
– Reshmi Khan
Heritage Law College, Kolkata