LEGAL VALIDATION OF SAME SEX MARRIAGE

ABSTRACT

This research paper explores the legal validation of same-sex marriage, examining the landmark legal cases, historical progression, international perspectives, future implications   challenges and societal impact. The paper firstly begins with a brief historical overview, featuring key milestones and legal cases that have formed the recognition of same-sex marriage. Drawing on a comparative analysis of international approaches, the research involves the diverse legal frameworks and societal behaviors toward same-sex marriage. A major portion of the paper is dedicated to assessing landmark legal cases that have played a crucial role in advancing the recognition of same-sex marriage rights. Delving into the societal impact of same-sex marriage, the paper hold the changes in societal attitudes and public opinion. It sets down the challenges faced by the LGBTQ+ community in their quest for equal rights, shedding light on both societal and legal controversies that have emerged. This comprehensive exploration, spanning historical, societal and legal dimensions, adds up to the broader discourse on equality, human rights and the evolving concept of marriage in contemporary society.

KEYWORDS

Same sex marriage, legal validation, landmark cases, societal impact, LGBTQ+ rights, comparative analysis.

INTRODUCTION

The legal validation of same-sex marriage has emerged as a crucial aspect of the evolving human rights landscape, with certain deep implications for legal frameworks and societal attitudes worldwide. This research is dedicated on a comprehensive exploration of this transformative journey, examining historical milestones, societal impact, landmark cases and the worldwide perspectives surrounding the recognition and understanding of same-sex unions. Starting with a historical overview, we go through the key moments and legal cases that have shaped the ground of same-sex marriage. From early legal challenges to contemporary developments, the trajectory of this struggle unveils the complex interplay of morality, traditions and the pursuit of equality. An important part of this research is the international perspective, which throughs light on the various approaches taken up by different countries in recognizing same-sex marriage. Through a comparative analysis, we can draw parallels with other civil rights movements, providing some understanding into public opinion dynamics, legal strategies and the wide implications for the pursuit of equal rights. This research paper digs into the milestone legal cases, analyzing the judicial decision and legal arguments that have been essential in progressing and preventing the rights of same-sex couples. Past the courtroom, we also assess the societal impact of same-sex marriage, testing changes in public opinion and handling the difficulties faced by the LGBTQ+ community. As we go through the legislation and legal frame works, the research paper furnishes a detailed review of the protection, rights and difficulties encountered by same-sex couples within the preferred jurisdiction. This analysis provides the exact understanding of the progressing legal landscape and its ideas or implications for the broader discourse on equality, human rights and the contemporary concept of marriage. In setting the stage for this extensive exploration, the introduction combines historical, legal, and societal dimensions. The research presented herein seeks to contribute to the ongoing discourse on same-sex marriage, offering significant insights into the intricacies and dynamics of a struggle or battle that stretches out past the court into the fabric of societal change.

RESEARCH METHODOLOGY

This research paper involves qualitative approach, based on an extensive reconsideration of secondary sources to deeply examine the legal validation of same-sex marriage. An extensive literature review includes sociological studies, legal texts and scholarly articles forming the foundation for the exploration. Document assessment focuses on legal court opinions, legal document and legislative texts, extracting key legal decisions and arguments. A comparative assessment investigates global opinions through the examination of societal attitudes and legal frame work in various countries. Ethical considerations ensure proper citation and a balanced representation of diverse perspectives. The synthesis of findings from these analyses provides a holistic understanding of the legal validation of same-sex marriage based on a range of secondary sources.

REVIEW OF LITERATURE

The hunt for legal recognition of same-sex marriage in India unfurls against a complex drape of legal, societal, and cultural intricacies. The historical point of view reveals a trajectory marked by early legal exceptions and significant judicial interference, ultimately shaping the discourse on LGBTQ+ rights in the country. One crucial moment in this journey was the Navtej Singh Johar v. Union of India case in 2018. In this case the Supreme court of India held that Section 377 of Indian Penal Code,1860, which   criminalized “carnal intercourse against the order of nature”, was unconstitutional in so far as it criminalized sexual conduct between adults of same sex. The striking down of Section 377 of the Indian Penal Code marked a historic move towards admitting the rights of the LGBTQ+ community. Even though the legalization of same-sex marriage was the main focus of this ruling rather than the explicit compliance of it, its inferences were significant and helped to initiate larger conversations about marital equality. After the Navtej Singh Johar case, the stage for wider debate on LGBTQ+ rights, including the same sex marriage. As India moved beyond the legalization of same-sex relations, the focus turned toward reconsidering the existing societal norms and legal framework related to marriage. However, the lack of certain legislation addressing same-sex marriage poses challenges. The legal converse in India faces the duty of explaining existing principles and laws to hold the rights of same-sex couples. The judiciary’s role becomes important in filling the legislative gap, and subsequent legal progress are reflective of an developing legal landscape.

In this historical view, the legal validation of same-sex marriage gathers significance not only

as a legal issue but as a socio-cultural milestone. The transformative effects of legal interventions, particularly the decriminalization of same-sex relations, have reverberated through societal attitudes, setting the stage for a more inclusive and accepting narrative. The historical view lays the foundation for a subtle understanding of the difficulties inherent in the legal validation of same-sex marriage in India. From the early legal challenges to the landmark legalization judgment, each phase represents a important chapter in the ongoing journey toward affirming and recognizing the rights of the LGBTQ+ community.

At the point when the US Supreme Court articulated the right of same-sex couples to marry, on June 26,2015, United State (US) announced same-sex marriage as lawful. [1]With this landmark judgment on same-sex marriage, the US is following a trend set by many European nations[2] including the United Kingdom (UK), which liberalised its laws on same-sex marriage by enacting the Marriage (Same Sex Couples) Act, 2013.3 Even in Europe, legislation on same-sex relationships differs significantly, although, in general, European societies have become more accommodating of same-sex relationships and have accorded different degrees of recognition ranging from partnerships, civil unions and full fledged marriages. During this time, the legitimacy or validity of section 377 of the Penal Code, 1860 (IPC)was decriminalized by the Supreme Court which punishes physical intercourse against the order of nature. The Supreme Court judgment came along with the decision of High Court of Delhi which said that section 377 of IPC insofar it prohibit private consensual sexual acts between adults as breach of the Constitution. Though same sex marriage is not referred in section 377 of Indian Penal Code,1860 (IPC), the Supreme Court decision makes it tough to argue in support of validation or recognition of same-sex marriage, since legalization of homosexuality fundamentally precedes the accord of full marital rights to same-sex couples. Following the recent decision of the Supreme Court of India in Suresh Kumar Koushal v. Naz Foundation (hereafter referred to as Koushal) upholding the validity of Section 377 of the Penal Code that criminalises carnal intercourse ‘against the order of nature’, maximum of the debates have centred around the most efficient and effective way to get the decision overturned. This research paper mainly deals to  seek significant legal recognition of same-sex relationships simultaneously since discrimination on the basis of sexual orientation of a person is objectionable or unacceptable whether under criminal laws or civil laws. Marriage laws only recognise heterosexual unions, depriving of the state benefits as well as legal and social recognition of same-sex couples that married persons enjoy. The paper recognises whether the route of recognition through ‘civil partnerships’ that has been taken by many other countries should be followed in India or not, but concludes that this is an unsatisfactory intermediate process to granting recognition to same-sex marriages. The paper concedes that it would be impractical to seek amendments of personal laws to obtain such recognition since it would encounter or confront  strong opposition causing religious freedoms. The paper concludes that the most feasible manner of attaining legal recognition of same-sex marriages would be an amendment of the Special Marriage Act[3] or, in the event that Koushal were to be overturned, by a judicial reading down of the Special Marriage Act to permit same-sex marriages, on the ground that not allowing same-sex marriages viciously discriminates against members of the LGBT community.

We cannot argue that the foremost focus has to be on de-criminalising consensual sexual acts. But this won’t end the atrocities and discrimination faced by same sex couples who are engaged in a long term committed relationship. On par with heterosexual marriages, It would require legal recognition of long-term same-sex unions. This objective of seeking equality with heterosexual relationships itself may be criticised on the grounds that heterosexual family and marriages relationships are filled with the outdated values of patriarchy. If a family is considered a representative of society, one cannot seek to achieve rapid changes in society while at the same time seeking acceptance into its traditional family principles. Both outside and inside the LGBT communities, there are differing views about the feasibility of marriage—either in any given person’s or individual’s personal life or as to be governmental policies that use marriage as a form for a wide range of benefits.[4]There are, however, conclusive  practical explanations to seek legal and social recognition of same-sex relationships. Certain legal benefits such pension rights, maintenance and succession that are provided to married couples are not provided to same-sex couples. Economic advantages from laws like the Workmen’s Compensation Act, 1923 and Employment Provident Fund Scheme, 1952  are given only to those related by marriage or blood.[5]After the Central Adoption Resource Authority (CARA) provided regulations for adoption, single persons and unmarried couples have found it very much difficult to adopt a child. Further, not all persons in same-sex relationships are searching for rapid modifications or changes in the society or in its institution, and many are politically orthodox.[6] Many of them hardly desire compliance without discrimination and the option to have a legally accepted partnership.[7] A further useful argument made after a detailed survey of social science research on the matter is that heterosexual and same-sex relationships do not differ in their required psychosocial dimensions, that marriage provides substantial social, psychological and health advantages and that same-sex couples and their children are likely to be advantageous in different ways from a legal consideration of the relationship as marriage. Many same-sex couples wish to marry only because they believe that they are a part of a culture in which marriage has been represented as the most conceptual institution of commitment and  connection and this assurance surpassess the bounds of sexual orientation. They are also of the opinion that that the state shall not interfere in choosing the life partners as it is totally a personal decision. Thus the direct debate in favour of same-sex marriage is that if two people whether heterosexual or homosexual if they want to tie knot, then they should be allowed to do so as excluding or not permitting a particular class or group of citizen from the dignity or benefits of that commitment insults and demeans their dignity. It is vital to see that equivalent sex relationships are not unlawful in India. While section377 of the Indian Penal Code, 1860 condemns sexual acts between people of a similar sex, it is very much important to contend that equivalent sex relationships are not same to the exhibition of such demonstrations. Regardless the marriage regulations in India don’t unequivocally allow same-sex relationships, and, truth be told, reflect the major areas of strength for a predisposition and use terms recommending just a hetero organization Moreover, on a realistic note, so long as a provision in a criminal statute such as Section 377 is considered non-discriminatory it would be illogical to seek legal recognition under civil marriage laws.

In India, marriages and weddings have a strong religious and cultural significance as well as social importance. Marriage is considered to be a sacrament and the religious ceremonies are an essential part of the marriage. This perhaps explains the many instances of lesbian marriages, including performance of religious ceremonies, exchange of garlands in temples or quasi-legal friendship contracts (maitrikarar) in several reported cases. For instance, in 1988, two policewomen married each other in a Hindu ceremony. Though their marriage could not be registered and they were suspended from their jobs, their marriage was accepted and supported by their families and community. It is interesting that the numerous reported lesbian marriages have been largely between small-town, lower-middle class, non-English speaking women who are not connected to the LGBT movement. n this milieu, the most satisfactory course would be the recognition of same-sex marriages under Indian personal marriage laws. In India, Christians, Muslims and Hindus have different laws in relation to marriage, succession etc. The Hindu Marriage Act that governs Hindus, Sikhs, Jains and Buddhists states that a marriage may be solemnised between any two Hindus. It also specifically provides that the bridegroom should have attained the age of twenty one and the bride eighteen. The Christian Marriage Act provides that the age of the man shall be twenty one and the age of the woman eighteen. Since Muslim marriages are not governed by a statute, there is no statutory definition of ‘marriage’, but they are normally considered to be a contract for the purpose of procreation. Thus, all Indian personal laws appear to envisage marriage as only a heterosexual union.

SUGGESTIONS AND CONCLUSION

One suggestion is to seek the legal recognition of same-sex couples is as civil unions or partnerships and not through marriages. Legislations recognising civil unions have been enacted in many states in the United States of America, several Latin American and European countries, Australia and New Zealand. Different models of civil unions have been implemented in these jurisdictions. Some states in the United States of America have domestic partnerships that are only recognised by city councils and private companies who extend spousal benefits to the same-sex partners of their employees. Countries like Germany have conferred only limited legal rights on those entering a civil union. The legal benefits are restricted to laws relating to tax, pensions and adoptions. Other models, like that enacted in Vermont following a direction of Supreme Court of Vermont, provide partners with the same legal benefits as those who are joined in marriage. The Supreme Courts of Vermont and New Jersey have held in the recent past that same-sex couples cannot be excluded from the benefits of marriage but the State can decide whether the benefits should be conferred within the framework of a marriage or whether a parallel domestic partnership is to be preferred. Such ‘separate but equal’ institutions should be in the nature of marriage and should confer the same legal benefits as a marriage. It is clear that the anti-discriminatory initiative of Naz Foundation has to be built on to obtain legal and social recognition of long term same-sex relationships through marriages simultaneously with the efforts to overturn Koushal. There is no advantage in going through the half-way house of civil unions as was done in the West. The challenge of obtaining legislative sanction through a civil union is just as severe as that of obtaining sanction via same-sex marriages. It is clear that denial of the choice of marriage to same-sex couples further reinforces discrimination by treating them differently. In a society that gives marriage such religious significance, the most satisfactory course would be the enablement of same-sex marriages under the personal laws. However, it would be an uphill task to seek amendments to the personal laws of all religions. Any judicial intervention in this regard would be perceived as interference in religious freedom. In this scenario, the most viable option appears to be legislative amendments to the SMA to include same-sex marriages. The protests and debate relating to similar legislations in the United States serve to illustrate that an amendment in India would also invite vigorous opposition. Despite apprehension of such public outcry, when the rights of a class of citizens are denied by reason of a majoritarian norm, an approach to the judiciary is just as right an approach as seeking legislation from the Parliament. If Koushal were to be overturned, it is very likely that the principle laid down in Naz Foundation that the prohibition of discrimination by Article 15 on the basis of sex includes a bar on discrimination on the basis of sexual orientation will be affirmed. This and international precedents could be used to mount a constitutional challenge to the SMA as being discriminatory on the basis of sexual orientation and seek a reading of the Act to the extent of permitting same-sex marriage.

REFERENCES

SUBMITTED BY

SHREYA DATTA GUPTA

KLE SOCIETY’S LAW COLLEGE,BENGALURU


[1] 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 (2016).

[2] J. Gardiner, “Same-Sex Marriage: A World Wide Trend?” 28(1) Law in Context A Socio-Legal Journal 93 (2010); S.R. Levit, “New Legislation in Germany Concerning Same-Sex Unions” 7 The ILSA Journal of International & Comparative Law 470 (2001); B.D. Oppenheimer, A. Oliveira et.al., “Religiosity and Same-Sex Marriage in the United States and Europe” 32 Berkeley Journal of International Law 196 (2014).

[3] The Special Marriage Act, 1954.

[4] Mary L. Bonauto, Goodridge in Context, 40 HARV. C.R.-C.L. L. REV. 1 (2005).

[5] Employment Provident Fund Scheme, S. 2(g) (1952). Workmen’s Compensation Act, S. 2(d) (1923).

[6] Brendan O’Neill, Why gay marriage is a very bad idea, SPIKED (March 22, 2012)   http://www.spiked-online.com/newsite/article/12273#.Ulkj_BZpt2E.

[7]Thomas John, Liberating Marriage: Same-Sex Unions and the Law in India, in LAW LIKE LOVE 357 (Arvind Narrain & Alok Gupta eds., 2011).

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