1.ABSTRACT
The rights of individuals within the LGBTQ+ community have long been a subject of debate, persisting even after the decriminalization of Section 377 of the Indian Penal Code in 1860. Stereotyping, gender oppression, and discrimination persist in our society. This research aims to examine the contemporary perceptions towards the LGBTQ+ community, particularly regarding their ability to form families through marriage, adoption, or parenting. The study intends to address the challenges faced by LGBTQ+ individuals in adoption and parenting. Researchers will investigate societal attitudes towards adoption or parenting by homosexuals and analyze relevant provisions in Indian laws. A key focus of the research is to analyze landmark cases spanning the past decade, including judgments delivered in 2009, 2016, and 2018. The findings of this research aim to empower the LGBTQ+ community by raising awareness of their rights and shedding light on societal attitudes towards them.By employing the doctrinal research method, the study adopts a systematic approach to understand the issue at hand. This method enables the researcher to comprehensively examine legal provisions and precedents, providing valuable insights that may contribute to reducing gender discrimination and oppression while promoting societal awareness of LGBTQ+ rights.
2.KEYWORDS
Same-sex marriage, LGBTQ+, Rights, Recognizing, Legalizing, Community
3.INTRODUCTION
Marriage, both in modern times and throughout history, has been regarded as a fundamental institution that every individual is expected to aspire to join. However, despite its pervasive presence in society, marriage has historically been exclusionary towards certain communities. The inclusion or exclusion of groups from marriage has been a subject of contention, involving public policy, religious beliefs, and societal norms. Presently, one of the most polarizing issues is that of same-sex marriage. This paper seeks to delve into the social, political, and legal dimensions of same-sex marriage in India, examining its roots and the reasons behind hesitancy towards embracing a more inclusive definition of marriage.Throughout this exploration, both the simple and intricate definitions of marriage are scrutinized. The arguments put forth by opponents of same-sex marriage are carefully analyzed, including the assertion that altering the components of marriage would fundamentally change its structure and purpose. Following this social analysis, the paper delves into an examination of the legal status of same-sex marriages in various countries, comparing it with family law in India and assessing its legality under relevant statutes. Additionally, alternative institutions such as civil unions are subjected to analysis, providing a comprehensive understanding of the broader landscape surrounding same-sex marriage.
4.RESEARCH METHODOLOGY
This study adopts a descriptive approach, focusing on the examination of the rights of homosexual couples to solemnize their marriages in accordance with Indian laws and secure their fundamental rights as guaranteed by the Indian Constitution. The research relies on secondary sources for deep analysis, including newspapers, journals, and websites. These sources provide valuable insights into the legal, social, and constitutional aspects surrounding the issue of same-sex marriage in India. Through the analysis of secondary data, this study aims to contribute to a comprehensive understanding of the challenges and opportunities faced by homosexual couples in exercising their right to marriage within the Indian legal framework.
5.REVIEW OF LITERATURE
5.1HISTORY OF LGBTQ+ RIGHTS IN INDIA
The term “LGBTQ+” often conjures images of modernity or urban elitism, but Indian history and mythology tell a different tale altogether. In the epic Mahabharata, attributed to Ved Vyas, there’s mention of a significant figure who defied conventional gender norms – Shikhandi, described as “neither a man nor a woman.” Shikhandi, raised as a son by King Dhrupad despite being born with female genitalia, was renowned for prowess in both warfare and statecraft.
While the Dharmashastras upheld heterosexual marriage and procreation, they reluctantly acknowledged the existence of non-vaginal sexual practices, including heterosexual and homosexual acts, albeit with attempts to regulate them through fines and compensation, rather than outright condemnation in religious or moral terms.
The Kamasutra acknowledges the presence of lesbians referred to as “Swarinis,” who entered into marriages and raised children together. It also alludes to the concept of trittiya prakriti, individuals who transcend conventional gender binaries. Pali literature, such as the Vinaya Pitaka, mentions ‘pandakas,’ individuals not fitting into traditional male or female categories within Buddhist viharas.
The influence of LGBTQ+ identities wasn’t confined to textual references but also found expression in temple art. In sites like the Khajuraho temples, depictions of women embracing each other intimately and men engaging in suggestive acts suggest a recognition of homosexual behavior. Scholars interpret these representations as affirmations of homosexual practices in ancient India.1
5.2RELIGIOUS PERSPECTIVE ON MARRIAGE
In mainstream religions, the prescription of rituals and codes of conduct for marriage is a common feature. Hinduism, Islam, and Christianity, the three major religions in India, each provide their own definitions and guidelines for marriage, none of which explicitly acknowledge or provide for same-sex marriage.
In Hinduism, marriage is defined as the union of two individuals for life, allowing them to pursue Dharma, Artha, Kama, and Moksha together. While Hindu marriages are legally recognized and typically involve members of the opposite sex, there have been instances of same-sex marriages, although these unions lack official legitimacy. Despite some dharmic texts containing prohibitions of homosexuality, certain mythological stories depict homosexual experiences as natural and joyful. However, there is no explicit mention of same-sex marriage in Hindu mythology. While some priests have performed same-sex marriages, they remain controversial within modern Hindu societies.
From an Islamic perspective, marriage is viewed as a legal contract between two consenting individuals, with the bride’s consent being essential. However, Islam does not recognize or accept same-sex relationships, with teachings indicating severe penalties for homosexual activities. The theological rationale behind this stance is that such acts disrupt the harmony of God’s creation.
1 Ishika Goel, Legislation of Same-Sex Marriage in India
In Christianity, while there is no explicit definition of marriage, several biblical passages suggest that marriage is between a man and a woman. Consequently, most traditional Christian societies and churches do not recognize same-sex unions, advocating for “traditional” marriage. Some extremist groups even interpret certain passages in the Old Testament as warranting the death penalty for homosexuals.
Overall, while religious perspectives vary, same-sex marriage remains a contentious issue within the contexts of Hinduism, Islam, and Christianity, with each tradition grappling with its own interpretations and beliefs.2
5.3INDIAN PERSPECTIVE ON HOMOSEXUALITY
Despite the Union government’s rationale for legalizing same-sex marriages being attributed to “urban elitist views,” recent statistics challenge this assumption by revealing a nuanced picture. Data from a 2019 poll conducted by CSDS-Lokniti & Azim Premji University indicates that urban dwellers were not significantly more tolerant of same-sex relationships than their rural counterparts. Only 19% of respondents expressed acceptance of same-sex relationships, while 55% disagreed. Notably, approximately 25% of participants did not offer any opinion on the matter. Interestingly, while 53% of rural Indians were opposed to accepting same-sex couples, 59% of urban Indians held a similar stance.
Additionally, there was a noticeable 6% increase in opposition to societal acceptance of same-sex couples, rising from 47% among the economically disadvantaged to 53% among the affluent. Many religious communities also expressed reservations about same-sex marriage. In a survey assessing attitudes toward same-sex couples, over 70% of Christians and 50% of Muslims conveyed disapproval. Hindus and Sikhs, constituting approximately 40% of the population, displayed varying levels of acceptance, with Hindus demonstrating the highest rate at 22%.3
2 Rohit Beerapalli, Same-Sex Marriage in India: A socio-legal analysis
3 Subhashree Nayak, Determinants affecting Social and Legal Status: A study on Same-Sex Marriage in Indian context
5.4JUDICIAL REVIEW ON LGBTQ RIGHTS IN INDIA
A comprehensive analysis of LGBTQ rights in India’s judiciary reveals a stark disparity between the proactive stance of the courts and the lack of action from the legislature. Over the past decade, the Supreme Court has spearheaded several groundbreaking decisions, affirming the fundamental rights of this historically marginalized community. This judicial activism has been imperative to counterbalance the conservative inertia prevalent in Parliament, evident from its failure to address these issues. Among the most notable Supreme Court rulings are:
Naz Foundation v Government of NCT Delhi: In this landmark case, the Delhi High Court declared Section 377 of the Indian Penal Code unconstitutional. The decision stemmed from a Public Interest Litigation filed by the NGO, prompting a critical review of colonial-era laws. The Supreme Court concurred that Section 377 violated three articles of the Indian Constitution pertaining to equality: Article 14, Article 15, and Article 16.4
Nalsa v. Union of India:5 This case emerged in response to the backlash against the Supreme Court’s decision in Suresh Kumar Koushal v. Union of India6, which reinstated Section 377 following its decriminalization in Naz Foundation. The National Legal Services Authority led the charge in advocating for transgender rights, resulting in the official recognition of transgender individuals as a distinct gender. The ruling set forth guidelines to safeguard the liberties and rights of transgender people, marking a significant step towards inclusivity and equality.
A dedicated legislative effort resulted in the enactment of a specific statute outlining the rights of transgender individuals. The Transgender Persons (Protection of Rights) Act of 2019 represents the culmination of extensive discussions and proposed legislation. While the law contains some positive provisions and is deemed essential, a significant issue arises from its requirement for administrative involvement. Specifically, the law mandates that individuals obtain recognition as “transgender” through the issuance of an identification certificate by a district magistrate, posing a challenge due to the sensitive nature of the subject matter.
4 Naz Foundation v. Government of NCT Delhi (2009) 111 DRJ 1
5 National Legal Services Authority V. Union of India (2014) 5 SCC 438
6 Suresh Kumar Koushal V. Naz Foundation and Others (2014) 1 SCC 1
Justice (Retd.) K. S. Puttaswamy v. Union of India7 set a significant precedent by affirming the right to privacy as an inherent aspect of the right to life and liberty under Article 21 of the Constitution. This landmark ruling recognized privacy as a fundamental facet of human existence, applicable to all individuals irrespective of gender or sexual orientation. Justice Chandrachud emphasized the LGBTQ community’s entitlement to privacy, including autonomy and freedom from state interference. Furthermore, the court underscored the nexus between the fundamental rights enshrined in Articles 14 (right to equality), 15 (prohibition of discrimination on grounds of sex), and 21 (right to life and personal liberty) of the Constitution, and the protection of sexual orientation, thereby laying the groundwork for future cases, notably the Navtej Johar case.
Navtej Singh Johar v. Union of India8 marked a watershed moment by striking down the notorious Section 377, effectively decriminalizing homosexuality in India. The ruling found Section 377 in violation of multiple constitutional provisions, including Articles 14, 15, 16, and 19(1)(a), as it criminalized consensual intercourse between consenting adults. Drawing inspiration from the Puttaswami ruling, the court acknowledged the rights to dignified existence, autonomy, and personal choice as integral to the LGBTQ community’s constitutional entitlements.
5.5LACK OF AWARENESS AND UNDERSTANDING
The limited visibility and understanding of LGBTQ+ issues in India are exacerbated by several factors, including the scant representation of LGBTQ+ individuals in mainstream media and the absence of comprehensive sex education in schools. The lack of diverse sexual orientations and gender identities in media perpetuates stereotypes and fosters an environment of ignorance. Furthermore, the exclusion of LGBTQ+-inclusive content from educational curricula inhibits the cultivation of an empathetic and well-informed perspective among students. In the absence of adequate sex education covering a spectrum of identities and relationships, societal misconceptions persist, further marginalizing the LGBTQ+ community. It is imperative to undertake efforts to enhance visibility through media representation and integrate LGBTQ+-inclusive education to promote awareness, understanding, and acceptance within the broader public sphere.
7 Justice KS Puttaswami (Retd.) and Others V. Union of India and Others (2017) 10 SCC 1
8 Navtej Singh Johar V. Union of India (2018) 10 SCC 1
5.6LEGAL STATUS OF SAME SEX MARRIAGES IN INDIA
The issue of same-sex marriage remains unresolved in India, despite the decriminalization of same-sex relationships. While same-sex relationships are no longer illegal, the legal recognition of same-sex marriages is still absent, particularly concerning rights traditionally associated with marriage, such as child custody, divorce, and official recognition.
In April 2023, the highest court in India heard arguments in the Supriyo v. Union of India case, which involved numerous petitioners and respondents. This landmark case is poised to determine whether same-sex couples should have the right to marry and form families. Notably, two same-sex couples, Supriya Chakraborty and Abhay Dang, and Parth Phiroze Merhotra and Uday Raj Anand, initiated the case on November 14, 2022. The petitioners argue that Section 4(c) of the Special Marriage Act, 1954, which restricts marriage to a “male” and a “female,” violates their fundamental rights to non-discrimination, equality, and privacy as guaranteed by the Constitution.
The government’s stance is that Section 4(c) of the Special Marriage Act, 1954, is an equal protection statute that does not specifically target same-sex couples. However, it contends that marriage is not an inherent right and that the right to privacy of same-sex couples does not encompass the right to marry. This case holds significant implications for the legal recognition of same-sex marriages in India and the broader LGBTQ+ rights movement.
5.7ABSENCE OF FORMAL RECOGNITION OF SAME-SEX COUPLLES
In 1993, Vinoda Adwekar and Rekha Chaudhary sought to obtain a marriage certificate from the Registrar of Marriages, expressing their desire to formalize their union. The Registrar, rather than outright rejecting their request, initiated urgent consultations with the judiciary and law enforcement to determine the legality of issuing such a certificate to same-sex couples. Ultimately, one of the women was dissuaded from proceeding with the marriage. This incident highlights the lack of clarity within family laws regarding same-sex relationships. Instead of questioning whether there is an explicit prohibition on same-sex marriage, it’s crucial to inquire whether existing laws permit same-sex couples to marry.
The significance of state recognition in marriage warrants examination, considering the historical context of state authority over marriage. In pre-modern times, particularly in Europe, marriage was primarily a secular affair, requiring no religious involvement. The clergy merely bestowed blessings on the institution, much like other secular endeavors. However, over time, societal shifts led to the incorporation of marriage ceremonies within religious settings. The formalization of state control over marriage occurred gradually, culminating in the French Revolution’s declaration that only civil ceremonies registered by state officials were valid.
In Hindu marriages, it’s not uncommon for couples to undergo marriage rituals without obtaining official documentation. In situations necessitating legal intervention, judges rely on evidence such as photographs and recordings to ascertain the validity of the marriage. Emphasis is placed on adhering to ceremonial rites, as failure to do so may invalidate the marriage. Without tangible evidence of ceremonies, a Hindu marriage cannot be deemed valid.
5.8ALTERNATIVES TO MARRIAGE
In numerous communities grappling with the notion of non-traditional marriages, a common ground emerged in many locales: the proposition that alternative forms of relationships could attain legal recognition. This chapter duly acknowledges and scrutinizes these proposed alternatives.
5.8.1Live-In Relationships
Live-in relationships, also known as cohabitation relationships, have seen a surge in popularity across several countries, India included. For many individuals who lack the option of formal marriage or official recognition, this arrangement becomes a viable alternative.
In India, live-in relationships have been acknowledged as legally valid partnerships in certain circumstances. However, it’s worth noting that same-sex marriages, even if they meet similar criteria, are not yet officially recognized in the country.
5.8.2Common Law Marriages
Common law marriages entail informal agreements to wed without a formal wedding license. The couples mutually acknowledge their marital status, publicly represent themselves as married, and live together. While officially recognized in various jurisdictions, the prevalence of common law marriages is diminishing as societal conditions conducive to their emergence wane. In India, they can attain legal recognition if all prescribed ceremonies or procedures outlined in relevant laws are adhered to.
5.8.3Civil Unions
Some countries offer civil unions as an alternative to traditional marriage, affording couples all the benefits and legal protections of marriage, along with its corresponding responsibilities. Civil unions were introduced as a compromise, aiming to grant same-sex couples the privileges of marriage while preserving the traditional definition of marriage to avoid conflicts with religious institutions.
However, this approach raises concerns reminiscent of the segregationist Jim Crow laws in the United States before the Civil Rights movement. It underscores the unequal treatment of same-sex partners, who are relegated to a status perceived as inferior to the institution of marriage reserved for heterosexual couples, thus perpetuating notions of “natural” or “pure” relationships.
5.9THE RIGHT TO ADOPTION FOR LGBTQ COMMUNITY
Adoption, a legal and social process establishing a parent-child relationship, is outlined in Section 2(2) of the Juvenile Justice (Care and Protection of Children) Act, (JJ Act) 2015. It allows a married couple or a single person of legal age, upon meeting specific criteria, to adopt a biological child. However, adoption policies in India have often been influenced by social stereotypes and a lack of concern for children’s welfare.
While revisions to laws like the Juvenile Justice Act, 2000 have embraced secular principles, ensuring adoption irrespective of communal or religious beliefs, disparities persist between biological and adopted children. The JJ Act acknowledges adopted children as legal offspring, granting them the same rights and privileges. Unfortunately, the legislature has overlooked the rights of same-sex couples to adopt and build families.
Despite comprising approximately 2.5 million individuals, the LGBTQIA+ community in India faces pervasive social stigma and discrimination. The decriminalization of Section 377 in 2018 marked a hopeful milestone, yet the community continues to advocate for basic rights like marriage and adoption. Despite India’s substantial population of orphaned and abandoned children, estimated at 29.6 million by UNICEF, adoption rates remain low.
While current laws allow single individuals within the LGBTQ+ community to adopt as single parents, they are inadequate in facilitating adoption by same-sex couples, depriving one partner of legal parental rights over the child. This highlights the ongoing struggle for equality and inclusivity within adoption policies.9
5.10THE HINDU ADOPTION AND MAINTENAINCE ACT, 1956
This legislation delineates the requirements and legal responsibilities for Hindu adults seeking to adopt a child. Sections 7 and 8(c) specify that authorization is not necessary in cases where the spouse is of unsound mind, has renounced the world, or abandoned their children. These sections also permit unmarried individuals of sound mind who have reached the age of majority to adopt a child.
However, the Act’s language, particularly the use of terms like “spouse” and “wife” in Sections 7 and 8, indicates a lack of recognition for adoption by same-sex couples. Furthermore, while the Act explicitly allows Hindu men and women to adopt, its applicability to third-gender couples remains uncertain, creating ambiguity in its interpretation and implementation.
5.11ADOPTION REGULATIONS, 2017
Compared to the Hindu Adoptions and Maintenance Act (HAMA), these regulations impose more stringent restrictions. Unmarried individuals, both men and women, are eligible to adopt under certain conditions: they must demonstrate financial stability, mental and emotional well-being, and absence of life-threatening illnesses.
However, there are gender-specific limitations. A single man is prohibited from adopting a girl child, while no such restriction exists for single women adopting boys. Nevertheless, Section 11(iii) permits the adoption of a girl child by a single man, provided both the child and the adoptive father are at least 21 years old.
9 Aarushi Tomar, LGBTQ+ communities right to marriage and adoption: Need for Legislative Reforms
6.METHOD
This paper is an outcome of analytical analysis form secondary data. The secondary data includes books, research journals, research articles , international publications from various websites which gave importance to same sex marriage. This research is based on doctrinal method.
7.CONCLUSION
The ongoing evolution of the legalization of same-sex relationships and marriages has ignited heated debates spanning decades. Members of the LGBTQ+ community have ardently advocated for their inherent rights, including the rights to equality, freedom, privacy, life, and gender identity—rights they believe should have been inherently granted to them since birth. Despite the advancements of the twenty-first century, some individuals continue to wage battles for their fundamental rights. International organizations have undertaken extensive campaigns urging national governments to recognize and uphold the basic rights every individual is entitled to. The influence of Western ideologies has profoundly shaped the perspectives of Eastern societies, prompting shifts in attitudes toward homosexuals.
The processes of Westernization and Europeanization have played a pivotal role in reshaping perceptions of same-sex marriages, offering inspiration and opportunities for members of the LGBTQ+ community. However, denying individuals the right to marry or the right to equality based on their gender constitutes a direct violation of their fundamental rights enshrined in the Constitution of India. Despite historical challenges, significant strides have been made in the last decade by the Indian judiciary in support of homosexuals, notably highlighted by the landmark decision in 2018 to decriminalize Section 377 of the Indian Penal Code, thereby safeguarding the rights of LGBTQ+ individuals.
NAME – TRISHA GOEL
COLLEGE NAME – LAW CENTRE 2, FACULTY OF LAW, UNIVERSITY OF DELHI