The concept of same-sex marriage has also been a debatable topic not only in the legal world but also in the political, social and religious world. This research paper is descriptive research on the rights of the marriage of the LGBTQ+ [lesbian, gay, bisexual, transgender, queer or the community] community, their legal rights and also their acceptance by society as a common man. The researcher has also done historical research and mentioned the reasons why this concept which was earlier a part of Indian society was criminalized and then again decriminalized. Landmark judgements by the Supreme Court of India such as Navtej Sing Johar v Union of India [decriminalizing of section 377 of the Indian Penal Code leading to partial legalizing of the concept of same-sex marriage] and Supriyo v Union of Indiaare also discussed to get a more clear vision of the judicial bodies of India on legalizing same-sex marriage. The research paper also includes brief information about the countries that have legalized the concept of same-sex marriage and given equal rights to the LGBTQ+ community.
Same-sex, LGBTQ+, legalization, court case, criminalized, homosexual
The concept of marriage, particularly in India has always been seen as a sacrament and not as a contract. According to Indian law, marriage is the state of being united to a person of the opposite sex as husband or wife in a legal, consensual and contractual relationship recognized and sanctioned by and dissolvable only by law.
The term LGBTQ+ stands for lesbian, gay, bisexual, transgender and queer. The sign ‘+’ refers to collective and is not exhaustive. All the terms such as asexual, ambisexual etc., are inclusive of the term LGBTQ+. It is not a simple term as it requires an understanding of terms such as gender and sexuality. The default heterogeneous standard is being questioned by this collective term LGBTQ+ and is asking for its identity as a separate gender. This research paper mainly focuses on same-sex marriages, their history, present scenario and the problems and developments of this community. The LGBTQ+ community, after the criminalizing of same-sex relations under section 377 of the Indian Penal Code, has constantly been facing discrimination in every sphere of their lives. They have been openly oppressed and have been forced to do many odd jobs to live their livelihood. They have been denied to be included in workplaces, social organizations educational institutions etc.
In recent decades, the issue of same-sex marriage has come out as a centre of attention in the social and legal world around the world. People from different countries have different opinions about legalizing the concept of same-sex marriage. With the evolution of society, many countries are still yet to decide whether to legalize the concept of same-sex marriage or not. With the innumerable efforts of the LGBTQ+ Netherlands in 2000 was the first country to legalize same-sex marriage and give them equal rights.
This research paper aims to provide an exhaustive examination of the legal status of same-sex marriage in India with a brief detailing of other countries that had legalized this concept.
The research paper is based on a secondary source of information and is descriptive. The research paper involves a deep analysis of the basic fundamental rights of homosexual people and the rights of solemnizing their marriage in India. Researchers have used secondary sources such as journals, publications, websites and many more. Researchers have also done a detailed study on landmark judgements related to the rights of homosexual people such as Navtej Singh Johar v. Union of India to bring more understanding of the present status of the LGBTQ+ community.
REVIEW OF LITERATURE
Marriage is a union of two souls. According to many scholars and researchers, same-sex marriage is something which is completely against nature and can result in hurting the sentiments of people and is also against culture. The justification is given by them on the basis that no one where in the holy books as well as in the personal laws, clear mention has been given related to marriages of same-sex.
On the other hand, many scholars and researchers, when looking at Indian history, believe that same-sex marriage is not a new concept and should be legalized as every individual has an equal right to choose their partner. This is not merely an assumption but also proof that has been found at many archaeological sites, temples etc.
In the book – LOVE RITE, the author had long – widely explained the attitude of Indian society towards homosexual couples.
The book- The ENGAGEMENT explains the condition of homosexual couples in The United States of America.
There are many more books which clearly describe the conditions of homosexual couples all around the world and their acceptance in society. Somehow, the conclusion that can be drawn from each book, especially from Indian authors is that Indian society had always welcomed homosexual couples and it was a common practice at times before the arrival of the British government.
HISTORY OF SAME-SEX MARRIAGE
India has always been a secular country. Freedom to practice and propagate any religion has been one of its main features. Being a religious country, many personal laws are based on faith. India has a long history of homosexuality. Every personal law has its faith and aspect towards same-sex relationships. There are many shreds of evidence from ancient statues, many scripts and Vedas which clearly shows the existence and open acceptance of same-sex marriage back to 1500 BC. For example – the Sun Temple in Konak, Ellora Caves in Maharashtra, temples of Khajuraho and many other well-known places have texts, Kama – sutra, dealing with sexuality and emotional fulfilment of life. Also, the temples built in 950-1050 AD during the Chandela dynasty have sculptures carved with illustrations showing same-sex marriage, indicating that it was a common practice at that period. Baburnama, one of the most prominent examples of text in Islamic literature, refers to same-sex relationships. Not only do sculptures show this concept of same-sex relationships as a common tolerant subject but also many Sufi poets such as Sarmand Kashni, Bulleh Shah etc., have exhibited same-sex relationships in their works. But after the rise of Vedic Brahmanism, this concept became quite intolerant.
On the other hand, western society was of the view that marriage was an institution for procreation. It was not something related to love between souls irrespective of their gender as was so in India. It had always been intolerant of the concept of same-sex relationships. So, after taking control of the Indian subcontinent the British crown, it passed a law in 1860, criminalizing several acts, including the concept of same-sex marriage through section 377 of the Indian Penal Code. After this homosexual people began to feel insecure and found themselves as if not belonging to the same society as those of heterogeneous society. Not only suicidal cases began to come forward, but also the killing of homogeneous couples by their own families came forward. According to a study published in JAMA PEDIATRICS the rate of attempting suicide by LGBTQ+ youth was 5.87 times higher than teens (10 – 18 years) who are identified as heterosexual. In the 1990s, AIDS Bhedbhav Virodhi Andolan (ABVA), the first LGBTQ+ organization was founded in Delhi to fight against the discrimination faced by the LGBTQ+ community.
COUNTRIES TO LEGALISE SAME-SEX MARRIAGE
All over the world, different people have different thoughts about same-sex marriage. So, with the constant efforts of the LGBTQ+ community from all over the world, the Netherlands in 2001 became the first country to legalize the concept of same-sex marriage and give homogeneous couples equal rights to those given to heterogeneous couples. Belgium in 2003 became the second country to legalize the concept of same-sex marriage. Spain and Canada became the third and fourth countries respectively in 2005 to give a legal status of marriage to homogeneous couples. The recent country to give legal status to marriages of homogeneous people is Andorra on 27th February 2023.
Presently a total of 34 countries have recognized same-sex marriage as legal which suggests that there is a long battle that the LGBTQ+ community has to fight all over the world to gain their rights.
SAME–SEX MARRIAGES AND THE LEGAL FRAMEWORK
Article 14 – Right to Equality
Article 14 of the Indian Constitution talks about ‘Equality before the law’. This article says that every person is equal before the law irrespective of any kind of differentiation such as that based on gender, age, sex, race, caste etc. The only exception to this article is that when the classification done is unjust or unfair, then this article won’t be applicable. Before the judgement of Navtej Singh Johar v Union of India, same-sex relations were considered to be illegal and were subject to an offence and also the non-inclusion of same-sex marriage under the Special Marriage Act was considered as justified reason.
Article 19 – Freedom of Speech and Expression
This particular article provides citizens of India right to freedom and speech. This right guarantee citizen a proper way of living together with whom so ever they wish. But despite this article, homosexual couples, being in a bond of love and affection are not able to express their feelings in public. Though it is the 21st century, the modern world, still the social acceptance of same-sex relations not only in India but also in the world is not done. Article 19(1)(a) of the Indian Constitution provides a fundamental right to the citizens to reside with anyone in any part of the territory of India, but there have been many cases when homosexual couples revealed their identity, they were badly treated and deprived of living together.
Article 21- Right to life and personal liberty
This article guarantees the right to life and personal liberty. This article also provides the right to marry any individual and live a married life. Every individual has been given the right to marry any individual of their choice according to their customs and laws. But again, there has been no such provision given for homosexual couples. Nowhere in any personal laws, a clear mention of same-sex marriage have been provided and nor does the Special Marriage Act provides for the same. Thus, this ultimately deprives the whole LGBTQ+ community of their rights.
Therefore, it can be said that the Indian Constitution talks about the right to freedom of expression, right to marry, right to life and personal liberty, right to follow any profession, right to equality and many other rights but it nowhere mentions particularly the rights of transgender. They being part of society, have to fight a long legal as well as social battle to get their rights and to get recognition as an individual and as a community. But what one must remember is that the Indian judiciary has been helping the LGBTQ+ community in getting their rights so that they may live a respectable life.
DEVELOPMENTS FOR LGBTQ+ COMMUNITY
Though the legal right of marrying to the LGBTQ+ community has not been granted by the Indian legislature, so far, many rights and laws have been made to protect the rights of the LGBTQ+ community as well as to protect them from discrimination.
- Decriminalizing section 377: After the landmark judgement of Navtej Singh Johar, section 377 of the Indian Penal Code was struck down, decriminalizing consenting homosexuality, bringing a significant change in the rights of the LGBTQ+ community.
- Transgender Persons Act, 2019: The Supreme Court in 2014, recognized transgender individuals as a third gender giving them equal rights and protections. Also in 2019, the Transgender Persons Act was introduced, providing legal recognition to transgender individuals and protecting their rights.
- Anti – Discrimination Laws: At present, the Indian government has not yet passed anti-description laws to protect LGBTQ+ individuals from discrimination in employment, public accommodation and housing but some states such as Tamil Nadu and Kerala government have introduced anti-discrimination laws that include protections for LGBTQ+ individuals.
- Same-sex marriage: The Indian government has not yet legalized same-sex marriage. However, in 2017, the Delhi High Court ruled that the right to marry is a fundamental right and that denying same-sex couples the right to marry is a violation of their rights. This decision was later overturned by the Supreme Court, which held that the issue of same-sex marriage should be left to the legislature.
Overall, the Indian Government and judiciary have taken some steps towards recognizing and protecting LGBTQ+ rights, but there is still a long way to go towards achieving full equality and acceptance for the community. The legal recognition of same-sex marriage and comprehensive anti-discrimination laws are still pending, and there is a need for further advocacy and awareness-rising efforts to ensure that the rights of the LGBTQ+ community are fully protected.
INDIAN LEGAL HISTORY
- Naz Foundation v Govt of India, 2009
The Naz Foundation v. Govt of NCT of Delhi, 2009 is a landmark judgment of the Delhi High Court in which the constitutionality of section 377 of the Indian Penal Code was challenged on the basis that it violated various fundamental rights guaranteed by the Indian Constitution such as right to freedom, right to equality etc. It was a two-bench judgement in which the decision was given in favour of the petitioners and was held that a consensual relationship between two adults is their fundamental right irrespective of their gender. But the Supreme Court in 2013, overturned High Court’s decision and reinstated section 377 resulting in huge protests from the LGBTQ+ community.
- NALSA v Union of India, 2014
After a huge criticism, after the judgement of Suresh Kumar Kuoshal v Union of India which recriminalized Section 377, from the LGBTQ+ community, National Legal Services Authority raised questions in favour of the LGBTQ+ community. So, in National Legal Services Authority v Union of India, 2014, the supreme court declared transgenders as a third gender. This decision gave a huge identification to the whole LGBTQ+ community such as in educational institutes, job profiles, and many other places. Therefore, after many debates and discussions, the Transgender Persons (Protection of Rights) Act, 2019 came into effect. Though this act brought many positive changes in the lives of the LGBTQ+ community, it also had quite negative impacts. To avail of the right as a transgender, one must get the ‘transgender certificate’ from the district magistrate. As it is not a hidden fact that how the Indian legal system works, it became a challenge for the LGBTQ+ community to have the certificate.
- Navtej Singh Johar v Union of India, 2018
The turning point for the LGBTQ+ community came when a five–bench judgement of the Supreme Court gave the landmark judgement, in Navtej Singh Johar v. Union of India, 2018 which struck down the constitutional validity of section 377. This case was filed by a popular Bharatanatyam dancer along with many other petitioners challenging the constitutional validity of section 377 stating that it violates many fundamental rights such as the right to equality (Article 14), prohibition of discrimination (article 15), Right of Freedom of Expression (Article 19) and right to life and Personal Liberty (Article 21) of Indian Constitution. The supreme court recognized that homosexuality is a natural variation of human sexuality and affirmed the fundamental rights and dignity of the LGBTQ+ community. However, despite this victory, the problems of the LGBTQ+ community were not resolved. Though section 377 of the Indian Penal Code was struck down, there was no legalization of same-sex marriage. Only decriminalization of sexual activities between homogeneous couples was not enough.
- K.S. Puttaswamy v Union of India, 2018
This is also a landmark judgement related to the Right to Life and Liberty (Article 21) of the Indian Constitution. It was held in the judgement that privacy is an integral part of an individual’s life irrespective of gender and sex. This judgement was given by Justice Chandrachud, in which a special reference to LGBTQ+ Community’s rights was discussed and their freedom to choose a life partner and sexual freedom was also discussed.
- Supriyo Chakraborty v Union of India,2022
Supriyo Chakraborty v. Union of India is a recent case in which two same-sex couples on 24th November 2022 filed a writ petition to legalize same-sex marriage. This writ petition challenged the constitutionality of section 4(c) of the Special marriage act which talks particularly about marriage between a ‘male’ and a ‘female’. This section takes away the right of same-sex couples to marry, divorce, adoption and many other benefits. Many other petitions were filed supporting and against this petition. These writ petitions not only challenged The Special Marriage Act, 1954 but also Hindu Marriage Act, 1955. The first hearing of this case was done on 25th November 2022 by Chief Justice D Y Chandrachud and Justice Hima Kohli. There have been many hearings of this case but the decision is yet to come.
Every person is different and unique in their ways. What one likes cannot be the same for others but what matters is that no one should be denied their rights. Everyone should be treated equally. According to the researcher, same-sex marriage should be legalized as homosexual people are also part of society and they should be granted equal rights to choose their partner. Also, this is beneficial to the society in many ways. Who doesn’t like to have a kid? These couples can adopt kids and give the homeless, a better life. Also, this will reduce the suicide rate in India as well as divorce cases.
Certain amendments in the Special Marriage Act such as in Section 4 can bring a sign of relief to homosexual couples. With the slight amendment of section 4(c), by replacing the words ‘man’ and ‘female’ with some non-specific word for gender such as persons can help same-sex couples with their legal right to marriage. It is just going back to the old beliefs of the Indian Society which were lost due to the coming of the Britishers.
In India, even after the decriminalization of section 377, people are not willing to accept the relationship of people with same-sex mainly due to cultural and religious beliefs. Still, the concept of legalization of same-sex marriage is under debate even after five years of the landmark judgement of Navtej Singh Johar v. Union of India.
So, at present, same-sex marriage in India is not illegal but one cannot say it is completely legal as nowhere in Indian law same-sex marriage has been defined. Laws regarding same-sex marriage are yet to be made. The legal battle of the LGBTQ+ community is still going on not only in India but in the entire world.
Acceptance of same-sex marriage is not only required from the legal perspective but also social perspective to make people of the LGBTQ+ community part of society. Still, in most places, the LGBTQ+ community face a lot of problem such as difficulties in getting jobs, getting an education, healthcare and many more.
BCOM LLB (Hons)
UNIVERSITY INSTITUTE OF LEGAL STUDIES, CHANDIGARH
Navtej Singh Johar v union of India, AIR 2018 SC 4321.
Supriyo v Union of India, WP.(C) NO 1011/2022; Diary No 36593/2022.
 RUTH VANITA, LOVE RITE (Penguin Books India,2005)
 SASHA ISSENBERG, THE ENGAGEMENT, (Pantheon Books,2021)
 WS MORI, et al., SEXUAL ORIENTATION DIVERSITY AND SPECIALITY CHOICE AMONG GRADUATION ALLOPATHIC MEDICAL STUDENTS (JAMA net open)
 INDIA CONST. art 14, amended by The Constitution (105 amendment) Act, 2021
 INDIA CONST. art 19, amended by The Constitution (1st amendment) Act, 1951
 INDIA CONST. art 21, amended by The Constitution (1st amendment) Act, 1951
 Indian Penal Code,1860, No. 377, Acts of Parliament,1949 (India)
 Transgender Persons (Protection of Rights) Act,2019, Acts of Parliament, 1949 (India).
 Naz Foundation v Govt. of India, 2009, 160 Delhi Law Times 277
 NALSA V Union of India, AIR 2014 SC 1863
Suresh Kumar Kuoshal v Union of India (2014) 1 SCC 1
 Navtej Singh Johar v Union of India, AIR 2018 SC 4321
 K.S. Puttaswamy v Union of India, AIR 2017 SC 4161
 Supriyo Chakraborty v Union of India, WP. © NO. 1011/2022; Diary no. 36593/2022
 Special Marriage Act, 1954, sec 4, Acts of Parliament,1954 (India)