In India, we can see how societal attitudes are heavily influenced by religious and cultural beliefs, and how these beliefs are deeply ingrained in their thought processes, making same-sex marriages a difficult aspect to accept in society. However, this is not the only issue; it is seen that legal and political views influence societal understanding too. And when we look around at the legal aspect of same-sex marriages, we see how not legalizing same-sex marriage in India does not just hold the societal aspect but many other aspects as well. If same-sex marriages get legalized, then other Indian laws will also be affected by it and will require changes like existing personal laws including marriage, inheritance, adoption, and spousal rights, many such laws are made with the viewpoint of traditional or custom which does not allow the aforementioned which makes it more challenging to address the situation. Looking at the global picture, we can observe that thirty-five nations authorize same-sex marriages because they believe it upholds democratic principles. But looking at the situation in India, we can notice that society has become more liberal in the thought process from the past, which is reflected after the decriminalization of homosexuality back in the year 2018 yet the opposition to same-sex marriages in the current scenario comes from the diverse religion practices and their norms and customs, which restricts them to support this, making it more difficult for lawmakers to consider it.
Keywords: Same-sex marriages, Societal attitudes, Legal considerations, Challenges, opportunities, LGBTQ+ rights.
- INTRODUCTION
Earlier when we look into the notion of same-sex marriage as such then look back at a time when the wide acceptance of the idea was seen whereas looking at the present situation feel the opposite situation as the notion has become a complete wage. The concept of gender fluidity among humans and yakshas has been acknowledged in the ancient Hindu scriptures. Homosexuality in ancient India was not viewed as a crime. Even if we can look at Sutra 36 of the Kama Sutra, the sexual acts between individuals belonging to the same sex were termed as sadhana, implying that the said acts were ordinary. In the temples of Khajuraho, women are shown erotically embracing each other. This can be said to be an acknowledgment of homosexual acts. The Mahabharata is a story about Shikhandini, who was a warrior and the daughter of King Drupada. She was given the name Shikhandini after being raised as a prince and was betrothed to a woman. When her wife learned about the reality, she revolted. There was a divine intervention and she was bestowed with manhood, and from then onwards, she lived the life of a hermaphrodite. The Rig Veda mentions Mitra-Varun, a same-sex couple believed to represent two halves of the moon. Even this distinction was made later in society with the introduction of the British-era law that made consenting to homosexual activity illegal. While law was an art that remained ingrained in society and eventually became a part of it. But now with time we can notice the remarkable changes in Indian society about same-sex marriages. Gradually now we can see the progression and how the shift in the society’s values can be observed. As the world rooting towards recognizing and appreciating varied indices of love and devotion, where we see Indian society which is deeply entrenched with their faiths, transforming their believes which can be see when the decriminalization of homosexuality in 2018 which was the first significant step taken towards challenging conventional perspectives and leading towards the recognition of rights influencing public awareness for LGBTQ+ individuals.
Through an analysis of these societal perspectives, we aim to contribute valuable insights to the ongoing dialogue on inclusivity, shedding light on the factors that influence public opinion and the challenges and opportunities that lie ahead in fostering a more equitable and understanding society. As the law and society go hand in hand, we can see how acceptance and rejection of law has a direct impact on society as a whole, as well as how efforts same-sex marriages are an ongoing debate that influences public opinion at large in the society, while the Indian legal system is also making continuous efforts to provide equal marriage rights.
- RESEARCH METHODOLOGY
A doctrinal research methodology is validated for this research paper which includes sources collected from primary and secondary sources such as legislations, acts and journals, and articles respectively. These sources assist the researchers throughout the research project to have an analytical understanding of the topic and draw conclusions. The study of this research paper focuses on analysis.
- REVIEW OF LITERATURE
Baraily Nivedita, 2022, The Need for Legalising Same-Sex Marriage in India: A Future Possibility or A Possible Apprehension, Indian Journal of Law and Legal Research, vol. 4, issue 3, pp. 1-10.
In the article “The Need for Legalising Same-Sex Marriage in India: A Future Possibility or A Possible Apprehension,” the author conducted research to examine the changing aspect of marriages in the world and how same-sex marriages are being recognized globally. The author also discusses the legal aspect of same-sex marriages in India and how the steps to decriminalise homosexuality were a watershed moment for Indian society. In this study, the author also raises the topic of whether same-sex weddings are a personal law matter or may be transformed into a different legal system as a whole as the essay advocates for the legalisation of same-sex marriage in India.
Trivedi Niyanta, 2021, Same-Sex Marriage and Its Impact on Succession Laws in India, Lex-Humanitariae, Vol. 2, issue. 2, pp. 249-266.
In the article “Same-Sex Marriage and Its Impact on Succession Laws in India,” The author focuses on the legal elements of same-sex marriage in India, where marriage is seen as a sacred entity with societal implications due to cultural norms and practices. thereby it also speaks about how after Section 377 was snatched, better social thinking has been implemented, the author also meant to bring the succession act and child legitimacy issue through same-sex marriage and how it would affect the society at large.
- THE EVOLUTION OF SOCIETAL PERSPECTIVES TOWARDS SAME-SEX MARRIAGES OVER THE PAST DECADE IN INDIA.
Previously, in India, marriage was considered heterosexual, meaning that only men and women could marry each other, and homosexual marriage, also known as same-sex marriage, was not acknowledged by society. However, as time went on, we witnessed how the concept of same-sex marriages evolved. We still see pondering for the notion due of the rules and customs that have been followed for years, but with the amendment that decriminalized homosexuality in 2018, there was a change in society’s view. The ongoing conversation reported in the media affected public perception.
If we look at the societal perspective for same-sex marriages, it is seen that religious and cultural traditions are becoming a hindrance for the community as Indians are seen as one of the most conservative when it comes to customs and norms because they believe their traditions do not allow homosexual marriage, making it difficult to be impose any law regarding it. The LGBTQ+ group is then subjected to societal stigma and discrimination based on their sexual orientation, which leads to prejudice. Even education and knowledge play an important part in contributing to the rights of the community, thus a lack of awareness might mislead the entire notion. Even the law has an important part in changing cultural mindsets, and a lack of acknowledgment can add to resistance. Lavender marriages came out to be a very significant issue in the society as we see that an individual comes into a heterosexual marriage in order to hide their sexual orientation as the fear of being judged by the society because of their sexual preference becomes their concern. This behavior may perpetuate stigma and prejudice against LGBTQ+ people by creating an environment in which authenticity is sacrificed for social norms. It can cause mental suffering for people concerned and undermine attempts to develop a more open and tolerant society. Addressing the underlying issues, like as social stereotypes and a lack of acceptance, is critical to establish a more welcoming atmosphere for varied partnerships.
As awareness of homosexual marriage grows, the question of whether it should be accepted or rejected in a society emerges. In India, for example, cultural and religious factors play a significant role as people are more influenced by their customs; however, in urban areas, we have also noticed that people are more open to accepting the idea due to the higher quality of education they receive, as well as the influence of social media, which is crucial in forming people’s opinions.
Same-sex marriage is widely regarded as a Western concept, for a variety of reasons, including widespread expression in many Western nations, as well as acceptance and legislation that supports the idea of homosexual marriages. Because of the overall Western concept, acceptance of the idea in India is more difficult, as the entire concept of Indian tradition and societal norms enters the picture. The notion that same-sex marriage violates the “natural order” is frequently based on conventional and conservative viewpoints, which are shaped by cultural, religious, and societal expectations. In India, some people may believe that heterosexual partnerships are consistent with their sense of nature and traditional values. This viewpoint, however, ignores the range of human experiences and orientations seen throughout history and cultures.
It is crucial to recognize that societal attitudes evolve, and there is a growing acceptance of diverse expressions of love and commitment. As discussions around same-sex marriage progress, different viewpoints emerge, reflecting the complex interplay of tradition, culture, and changing social values in India.
- THE INDIAN LEGAL STAND ON THE MATTER SHAPED THE PERSPECTIVE OF SOCIETY TOWARDS SAME-SEX MARRIAGE.
A recent decision was issued on October 17th, 2023 by a five-judge bench in which heterosexual marriages were not recognized by the law and it was said that parliament had the authority to enact laws accordingly. Looking into society, it was seen that the understanding of rights for the queer community was increasing over time, but the court decided not to change the legislation, the reason for which was given by the court was that passing one law will affect all the other connecting laws with that which the court did not want to interrupt as the court did not want to change any personal laws in gender neutral laws, so they left the responsibility to the legislature. The majority held that there is no fundamental right to marry, emphasizing statutory limitations. While recognizing the right of queer couples to cohabit, the court’s decision raises concerns about the legislative prospects for legalizing same-sex marriages in a country where cultural and religious opposition exists. The LGBTQIA+ community may find solace in the court’s directive for the government to form a committee to address the rights and entitlements of queer couples, but the path to equality remains challenging.
When the idea of accepting and legalizing same-sex marriages becomes two entirely different concepts, and legalization does not always imply that the concept should be enacted into law. The most notable instance of this is the decriminalization of homosexuality in India in 2018, which did not grant legal status to same-sex marriages. As a result, it is clear that the acceptance and legalization of one concept take entirely different approaches. Legalization of same-sex marriage would entail revisions to existing marriage laws to guarantee equal rights and protections for all couples, regardless of gender. This change would indicate a dedication to human rights and legal equality.
The reasons behind India not legalizing same-sex marriage are complex and multifaceted. Societal attitudes, often influenced by cultural, religious, and traditional beliefs, play a significant role. Conservative perspectives, historical norms, and the influence of various religious institutions contribute to resistance against legalizing same-sex marriage. The idea of passing new legislation pertaining to same-sex marriages appears to be very simple, but upon closer inspection, it becomes clear that social norms and cultural practices are deeply ingrained in society, making it challenging to address. This is because enacting new laws merely modifies already-existing personal laws, which have a greater influence on the culture of the community. Because of this, the legal aspects of this matter become crucial. Policymakers may be cautious about introducing such changes due to potential backlash or resistance from conservative factions. Other laws, such as those related to inheritance, adoption, and spousal rights, would also need revision to align with the recognition of same-sex marriages. In recent times, the change can be seen in the society, where the attitude towards the rights of the LGBTQ+ community is increasing with the passage of time, even if the court has given the discretion that same-sex marriage is not legal, moreover given the responsibility to parliament to decide whether law should be made regarding it or not, because of which the actions in public opinion is frequently increasing and continue to gather momentum on the ongoing debate for same-sex marriages. Even the law must work effectively in society; it must be legitimate and efficient in order to have a real impact on society. Making laws for the sake of it can only burden legislators if the legislation has no impact.
- CONCLUSION & SUGGESTION
The ongoing efforts to determine whether or not same-sex marriage should be legalized demonstrate how society and the law interact. Additionally, tradition influences how laws are made. Furthermore, the legalization of homosexuality inspired the community and offered optimism for the advancement of an inclusive dialogue around LGBTQ+ rights. Due to India’s diversity, we can observe that people’s perspectives fluctuate from generation to generation. Even those with higher levels of education will be more accepting of same-sex marriage than those who are more ingrained in their own traditions and practices. Though there has been a noticeable shift in society’s perception of same-sex marriage, there is still a belief that this change is not complete because problems such as lavender marriages persist and same-sex marriage is still viewed through a Western lens. These issues will require ongoing discussion and work before legislative reforms can be implemented. The most frequent elements that significantly influence and further complicate the problems are social practices and norms, which is why lawmakers are taking affront at the creation of such legislation. Through sharing their personal stories, challenges, and the significance of legalizing same-sex unions, activists and other groups that support LGBTQ+ rights can raise awareness of the issue and impact society. These suggestions will benefit the community and open doors for them in the future.
REFERENCES
- JOURNALS AND ARTICLES
- Nivedita Baraily, The Need for Legalising Same-Sex Marriage in India: A Future Possibility or a Possible Apprehension, 4 IJLLR 1, 2 (2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3953994.
- Rebecca A. Clay, Decriminalizing Homosexuality in India, 50 APA 1, 5-6 (2019).
- Feliciano Villar, Rodrigo Serrat, Josep Fabà, and Montserrat Celdrán, As Long as They Keep Away From Me: Attitudes Toward Non-heterosexual Sexual Orientation Among Residents Living in Spanish Residential Aged Care Facilities, 55 The Gerontologist 1006, 1110 (2015).
- https://chicandlist.com/the-impact-of-social-awareness-fostering-inclusivity-and-equality/
- https://lawtrend.in/same-sex-marriage-can-erode-the-social-and-cultural-systems-of-india/
- https://www.theviralpink.com/why-do-people-hate-the-lgbtq/
- https://www.ielts-mentor.com/writing-sample/writing-task-2/2130-ielts-writing-task-2-sample-973-the-older-generations-tend-to-have-very-traditional-ideas
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- https://www.jurist.org/news/2023/10/india-supreme-court-rules-against-legalizing-same-sex-marriages/
- https://www.legacyias.com/supreme-court-on-same-sex-marriages/
- https://www.juscorpus.com/the-impact-of-same-sex-marriage-on-family-law/
- https://thestudentlawyer.com/2023/05/24/legality-of-same-sex-marriages-in-india-contemporary-overview/
- https://blogs.kcl.ac.uk/kslreuropeanlawblog/?p=1297
BY
AASTHA SINHA
ALLIANCE SCHOOL OF LAW, ALLIANCE UNIVERSITY, BENGALURU.