|ABSTRACT Whenever a wrong is committed in a society, we tend to refer to the laws of that particular society to see whether the wrong is punishable or not under the law. But does every wrong come into the ambit of ‘Punishable’? Is restraining someone from marrying according to his needs and desires right? If there are no laws forbidding the same-sex marriages then is creating a social taboo of same-sex marriages so as to discourage the participants to marry legally right? In the following research I have discussed about various sections of the Indian Penal Code, 1860 (specifically section 377), I have discussed about the Hindu Marriage Act of 1955, Parsi Marriage and Divorce Act of 1961, Christian Marriage Act of 1872 and the Muslim Marriage Act of 1954.|
KEYWORDS LGBTQ+ Couple, Gender Specificity, Same-sex marriage.
INTRODUCTION How many marriages have you seen till now? How many of those marriages had two opposite genders? How many of those marriages had the same gender? Have you seen any same-sex marraige till date? Did it catch your attention all of a sudden, as if it was not normal? What is normal? Do you see a same-sex marriage as often as an opposite sex marriage? Here in this essay we are going to discuss about the above questions and we are going to discuss whether same-sex marriage is right or wrong? We are going to talk about legal aspects as well as moral aspects surrounding the topic of same sex marriages worldwide and in India.
I’m a 20 years old boy who resides in Delhi and till now I have never ever seen a same-sex marriage, in person, in my life till now. My father once told me that everything in this world has 2 sides, just like a coin, and here in this question regarding same-sex marriage we also get to deal with 2-sides, acceptable or unacceptable? In India, there are many places in which the concept of same-sex marriage might sound alien, the very possibility of same-sex marriage might sound alien to them. But such is not the case everywhere, for example, if we look at the United States of America, on 26th June 2015, the USA legalised the same-sex marriage and since USA is the most powerful country in this world, everything that it does sets an example worldwide and so, following on its footsteps many European countries like UK also liberalised their same-sex marriages with the enactment of their marriage act 2013 and also countries like Netherlands also legalised the same-sex marriage in their country. It is to note here that on October 1 Denmark became the first country in the world to legally recognise same-sex marriages, after passing a bill legalising “registered partnerships” in a vote of 71–47. But why is that in India, which is the world’s largest democracy people can’t even imagine let alone accept same-sex marriages, why are same-sex marriage a taboo for Indians to an exent that we can’t even imagine such marriages. This rises two questions in particular : 1) Is same-sex marriage right or wrong? 2) If it’s wrong, who gave us human beings the authority to go against the natural instinct of a person?
In pursuance with this research, I have done a descriptive analysis of various marriage acts present in our country. I have discussed section 377 of the Indian Penal Code, 1860 in detail. The research and the data that I have presented has been taken from various sources such as journals, articles, books published by the various governmental and non-governmental websites.
REVIEW OF LITERATURE
The Judicial system in any democractic country tries its best to give justice to every person that knocks on its doors and there’s no doubt in the fact that in India even our judicial system tries its best to provide justice to everyone that approaches it but in my viewpoints there are still some loopholes in our judiciary that needs to be addressed and here the loophole which I’m referring to in particular is regarding the legality of the same-sex marriage in our country. In India, our culture is such that the concept of same-sex marriage is so alient to us that it doesn’t even come in our imagination as a possibility and so until a few years back decriminalisation of the section 377 of our Indian Penal Code, 1860 was only thing which sounded too good to be true. Section 377 of the Indian Penal Code, 1860 states that – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. The Supreme Court of India, on September 6th, 2018 unanimously ruled in the case of Navtej Singh Johar v. Union of India that section 377 of the Indian Penal Code,1860 was in fact unconstitutional and after that judgement I can still recall that I was watching the news channel and I saw so many happy faces of same-sex couples which were hugging themselves out of happiness and it was like they had won a war and I couldn’t help but wonder why have they been denied their natural rights?
After the judgement which was once impossible to imagine, many people couldn’t help but wonder the one day the court might actually recognize along with legalising same-sex marriage in India. It’s no wonder that the Supreme Court of India in the past has not faced issues regarding the legality of the same-sex marriage and its not easy at all for the Supreme Court to reach its verdict because the “Indian Customs” and traditions are such that binds the Supreme Court in the chain of culture. Although the Supreme Court of India in 2018 declared section 377 of the Indian Penal Code, 1860 as unconstitutional but it nowhere referred anything related to same-sex marriage so it cannot be arugued that the Supreme Court of India has actually allowed the same-sex marriage as allowance of same-sex marriage on the grounds of decriminalizing section 377 of the Indian Penal Code, 1860 since decriminalization of homosexuality fundamentally precedes the accord of full marital rights to same-sex couples.
Unlike any other country, in the country of India marriage is not taken as a simple concept. Marriages in India is a very deep concept and that’s why it is taken very seriously in India as in India marriage does not simply define a couple leading a family but it goes to the extent of saying that marriages lasts forever and in Hindu culture in particular it says that marriage is a “7 janam ka bandhan” . Marriage is seen as the first block of building a healthy society in India. The reason why it is so difficult for Indian courts to allow same-sex is because of various religious texts that makes it a hurdle for courts. In India there exists not one but many religions, each having its own specifications and each having different rules and norms for things like marriages etc.. The holy text of Hindu only takes into account the same-sex marriages and doesn’t take into account a marriage of male with a male and a female with a female and such is also the case with most of the other sacred books and together these cultural practices combine and bind the courts in its rulings.
As I mentioned above, India is a country of many diverse cultures and with it comes different rules and norms of each culture to form the act of marriage. Since I’m a Hindu, first I’m going to talk about the Hindu Marriage Act of 1955 which is applicable to all the Hindu’s in India and on the subject of marriage the Hindu Marriage Act gives the following specifications :
1) The minimum age of marriage for a bridegroom must be 21 years and for a bride 18 years.
2) The parties cannot be within the specified prohibited degrees of relationship or sapinda relationship unless the custom or usage permits such a marriage.
3) The parties to the marriage must not have a living spouse.
4) There must not be any lack of consent due to unsoundness of mind or because of a mental disorder, which makes a person unfit for procreation.
Now that we have read some of the provisions of the act we can infer that the Hindu Marriage Act, 1955 does not specifically impose a ban on same-sex marriage but when we read the (1) point we can see that the term bride (meaning female) and bridegroom (meaning male) is mentioned therefore here the act goes on to determining the gender of both sexes as male and female and not male-male or female-female. This rule has been tested on the grounds that same-sex couples can look for solemnization of marriage by describing themselves as male-male or female-female therefore we can say that the use of the term bride and bridegroom in the provision doesn’t really mean a hetero marriage. This contention is hazardous for what it’s worth against the common notion and means of the term groom and bridegroom and difficult to legitimize under legal understanding. In order to argue on this, the courts say that for the bear allowance of same-sex marriage is to be permitted through the act by which that religion is working such as for a Hindu, to go on with the argument of presenting one as bride-bride and groom-groom it will have to abide by the Hindu marriage act, so specifically, section 13 (2) of the Hindu Marriage Act, 1955 provides for special grounds of divorce for a wife. Section 13 (2)(iv) of the Hindu Marriage Act, 1955 provides that her marriage (whether consummated or not) was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years. Further, the provisions pertaining to permanent alimony and maintenance refer to the husband as ‘he’ and wife as ‘she’ clearly indicating a heterosexual marriage. These provisions give a clear indication that the Act considers only heterosexual marriages and not homosexual marriages. Not only that, this section also talks about the lack of consent due to mental disorder or because of unsoundness of mind which makes a person unfit for procreation but it is important to note that this act specifically mentions mental illness and not physical incapacity and not only that, this act also doesn’t provide for any nullification of marriage on the basis of infertility and this also have been talked about by courts in its judicial decisions so the notion that this act can be amended to add the provisions of same-sex seems bleak to be best.
If we look at the Parsi Marriage and Divorce Act of 1961 which governs the marriages of the Parsi people we’ll find that this act also specifies the age of bride and bridegroom and the rest of the things are similar to that of the Hindu Marriage Act, 1955.
If we look at the Muslim Marriage Act of 1954 then we’ll find out that it says that for Muslims, marriage is a contract which includes two parties where one party offers for marriage and the other party accepts it and such acceptance along with consideration (which is dower or Mehr) leads to formation of a valid contract of marriage.
If we look at the Christian Marriage Act of 1872 which regulates the marriage between Christians then we’ll find that the age of bride should be atleast 18 years whereas the age of bridegroom should be atleast 21 years and the parties must not have a living spouse and there must not be lack of consent due to mental disorder or due to unsoundness of mind, which makes a person unfit for procreation and along with that it states that parties cannot be within the specified prohibited degrees of relationship or sapinda relationship unless the custom or usage permits such a marriage. The elements of the Christian Marriage Act of 1872 are somewhat similar to the Hindu Marriages Act, 1955.
Now that we have seen the provisions relating to marriage in various acts in india like : Hindu Marriage Act of 1955, Parsi Marriage and Divorce Act of 1961, Christian Marriage Act of 1872 we can conclude that none of these acts have mentioned any provisions regarding the same-sex marriage, these act did not even mention the possibility of same-sex marriages let alone making a provision about them this shows us the reason why Indian Judiciary struggles in the cases which concerns same-sex marriage as in a diverse country like India it is very difficult to make a uniform law which applies to citizens of all cultures, customs etc. Lastly, before giving a conclusion I would like to put forth the case of Naz Foundation v. NCT Delhi.
In the case of Naz Foundation v. NCT Delhi the constitutional validity of section 377 of the Indian Penal Code, 1860 was tested. The Delhi High Court held that Article 15 of the Constitution of India which says – “every sort of discrimination by the State, on the grounds of religion, race, caste, sex or place of birth or any of them” is broad enough to include the discrimination on the basis of ‘sexual orientation’ and so, held that section 377 of the Indian Penal Code, 1860 is violative insofar as it condemns the consensual sexual acts of adults which are done in private. In the case of Suresh Kumar Koushal v. NAZ Foundation, the Supreme court switched the judgement given by the Delhi High court and said ‘unnatural sex’ is a ‘perversity of mind’ and held that section 377 of the Indian Penal Code, 1860 is established on the grounds of public morality. The Supreme Court of India observed that if this section was violative of the fundamental rights which are guaranteed under the constitution of India then the parliament would not have retained this section. The case regarding section 377 of the Indian Penal Code, 1860 did not address the issue of the same-sex marriage rather it dealt with section 377 in a narrower sense. This case is a live demonstration that how in India the concept of same-sex marriages is not perceived. It is regardless of the fact that one contents that section 377 doesn’t deny same-sex marriage, the culmination drawn under this section will genuinely influence the existence of a homosexual couple. However, it is to be noted here that a corrective appeal has been recorded under the honourable Supreme court of India to relook into the matter of section 377 of the Indian Penal Code, 1860 and if the court decriminalised section 377 it also rises hopes of many people and open the possibility that infact one day the Supreme court will make legal amendments in the various marriages acts and allow the same-sex marriages.
CONCLUSION AND SUGGESTIONS
In conclusion, in my opinion same-sex marriages should be made legal. As I think that nobody should have autonomy over anyone’s body and nobody should play against natural forces. If someone is homosexual by nature then I don’t think anyone should have an authority to challenge it. It is true that in the religious texts and the marriages act there is no mention about the same-sex marriages but how can something which comes natural to us- be wrong? It is said that marriage is one of the most important aspect of our life, it is said that one should always marry wisely after considering all the factors, then if a homosexual person is not allowed to marry another homosexual person then he would be bound to marry someone against his natural instinct and then later face a number of issues in his married life and not only that it would also affect the other party in the marriage and since marriage is considered sacred in our country, divorce in most cases is not an option. From my viewpoint, I believe that concept of same-sex marriage is not so alien to the humanity afterall as if we see the countries which have legalised the same-sex marriage we have seen that after sometime it has become normal for the people as well as the society and I truly believe that decriminalisation of section 377 of the Indian Penal Code, 1860 is truly a positive step taken by our judiciary and by doing that it also opened up the possibility for legalising same-sex marriages. I believe that the day is not far where even India will join those countries which have legalised same-sex marriages.
Written by – Saksham Bhatnagar (Symbiosis Law School, Nagpur – a constituent of Symbiosis International Deemed University, Pune.)
 Obergefell v. Hodges, 135 S.Ct. 2584 (2015). In this case, an Ohio resident sued the state when he failed to get his name registered on the death certificate of his partner of 23 years. See F. S. Befort and M. J. Vargas, “Same-Sex Marriage and Title VII” 56 Santa Clara Law Review 207 .
 Marriage (Same Sex Couples) Act, (2013), UK, part 1: Extension of marriage to the same-sex couples, available at: www.legislation.gov.uk/ukpga/2013/30/contents/enacted
 R. J. Brym, and J. Lie, Sociology: Your Compass for a New World 327 (Cengage Learning, Belmont, 2006); N. G. Maxwell, “Opening Civil Marriage to Same-Gender Couples: A Netherlands United States Comparison” 18 Arizona Journal of International & Comparative Law 157 (2001).
 Naz Foundation v. Government of NCT of Delhi, 2009 (160) DLT 277.
 The Hindu Marriage Act, 1955 provides a comprehensive definition to the term ‘Hindu’. S. 2 defines Hindus as anyone who is a Hindu, Sikh, Jain or Buddhist by religion or who follows any of its forms or developments (such as Brahmo Samaj, Arya Samaj etc).
 Parsi Marriage and Divorce Act, 1936, s. 3 prescribes rules on consanguinity; ceremony in the form of ‘Ashirvad’ by a priest, in the presence of two Parsi witnesses other than the priest; the bridegroom be at least 21 years of age, and the bride must be at least 18 years of age.
 A. Ahmed, Mohammedan Law 14 (Central Law Agency, Allahabad, 2012).
 Naz Foundation v. Government of NCT of Delhi, 2009 (160) DLT 277.
 Suresh Kumar Koushal v. NAZ Foundation (2014) 1 SCC 1.
 N. Ravichandran, “Legal Recognition of Same-Sex Relationships in India” 5(1) Journal of Indian Law & Society 102 (2014).
 R. Berapalli, “Same Sex marriage in India: A Socio –Legal Analysis” 1(4) International Journal of Legal Developments & Allied Issues 130 (2015)