Abstract
Same sex marriages are a complex and sensitive topic in India, as the country has a diverse culture, religious and legal landscape. Historically, Indian societies has been deeply rooted in traditional values, which often reinforce heteronormative ideals and traditional family structures. Consequently, same sex relationships and marriages have long been marginalised. Same sex marriages in India have faced several hurdles for a long time due to section 377, of the Indian penal code, which criminalised consensual homosexual acts. However, in 2018 the supreme court of India in its landmark judgement struck down section 377, recognising the rights of individuals regardless of their sexual orientation.
While the decriminalisation of homosexuality was a step forward, it did not explicitly address the issue of same sex marriages. Nonetheless it set a stage for further progress. Since then, there have been many legal battles and debates advocating for the legalisation of same sex marriages.
Furthermore, public opinion in India has shown a noticeable shift towards acceptance and support for same sex marriages. Although progress has been made, it is important to note that same sex marriages are still not recognised in India, and the issue remains pending before the supreme court of India, which will ultimately decide the fate of same sex marriages in India. This paper attempts to give an integrated view of same sex marriages in India.
Keywords
LGBTQ+ rights, same sex marriages, section 377, legal recognition, social acceptance, decriminalisation of homosexuality
Introduction
Same sex marriage is a topic of significant social and legal importance, have been a subject of discussion and debate in various parts of the world. In this context of India, the concept of same sex marriages carries particular significance due to its complex societal fabric and historic legal
framework. As India is country of diverse cultural heritage, it has grapples with issues surrounding homosexuality and LGBTQ+ rights for many years.
While decriminalisation homosexuality in 2018 by the supreme court of India was a monumental step towards LGBTQ+ rights, it did not explicitly recognise the issue of same sex marriages in India. The absence of legal recognition led to continued struggles and challenges faced by the LGBTQ+ community.
Beyond the legal realm, societal attitude towards same sex marriages in India have experienced a transformational shift, increasing awareness, education and advocacy efforts have played crucial roles in challenging age-old prejudices and fostering greater acceptance. Despite all these positive developments and challenges this issue still has not received a legal recognition and is pending before the supreme court of India.
This research paper aims to examine the journey of same sex marriages in India, exploring the legal, social and cultural dimensions surrounding this significant topic. It will delve into the historic context and analyse the impact of legal reforms and assess the challenging social attributes. By examining the current state of affairs and the challenges faced, the paper aims to contribute to the ongoing discourse on marriage equality and LGBTQ+ rights in India.
Research Methodology
This study takes a descriptive approach and focuses on examining the phenomenon of same sex marriages in India. The research primarily relies on secondary sources such as newspapers, journals and websites to conduct as in-depth analysis of the topic.
Review of literature
India has a rich historical background regarding homosexuality, as indicated by various ancient manuscripts. These manuscripts, such as the Rig Veda dating back to 1500 BC, depict sexual interactions between women as joyous expressions of fertility within a feminine-centric world. The Kama Sutra also contains illustrations portraying homosexual activities involving young boys, indicating the existence of homosexuality during the medieval period among Muslim nawabs and Hindi aristocrats. Evidence of same sex relationships and practices can also be found in the context of Tantric rituals. These aspects have been extensively discussed in the book Queering India: Same-Sex Love and Eroticism in Indian Culture and Society edited by Ruth Vanita.[1]
• Legal developments
There are several legal developments that have taken place India since the old or historic times regarding homosexuals and same sex marriages in the country, several of them are mentioned below:
- Article 377 and verdict: Article 377 of the Indian Penal Code is a law that criminalises “unnatural” sexual intercourse, including consensual sex. For decades, the law has cast a shadow of discrimination and stigma on the LGBTQ+ community. However, in a historic decision in 2018, the Supreme Court of India declared Article 377 which makes consenting adult sex a criminal offence and therefore not necessary. The landmark decision decriminalised homosexuality and recognised the rights of LGBTQ+ individuals.
- Recognition of same-sex marriage abroad: In 2020, the Delhi High Court issued a landmark decision saying that same-sex marriages abroad law will be considered valid in India. The court added that recognising such marriages would promote personal freedom, non-discrimination, and equality. The decision is an important step in recognising and recognising the rights of same-sex couples.
- Kerala High Court Decision on Cohabitation: In 2021, Kerala High Court issued an important decision recognising the right of homosexuals to live together. The court said that regardless of gender, cohabitation in a consensual relationship is a fundamental right protected by Indian law. The decision affirmed the need to provide legal protection and sanctions for same-sex relationship.
- Future Supreme Court decisions will play an important role in shaping the legal landscape of same-sex marriage in India.
• Intersectionality and marginalised identities
Some literature explores the intersectionality of same sex marriages with other social identities,
such a caste, religion, and gender. It discusses the unique challenges faced by individuals from marginalised communities with the LGBTQ+ spectrum and the need for inclusive policies that address their specific concerns.
• Comparative Perspectives
There are always comparative perspectives of one country with another, in this case there are comparative perspectives from other countries that have legalised same sex marriages.
These comparative perspectives are very important in discussing the impact of international precedents and experiences on the legal and social discourse in India, emphasizing the importance of learning from global best practices.
Important example of this is a California Health Interview Survey that was conducted by California Department of Public Health which was called Same-Sex Legal Marriage and Psychological Well-Being: Findings From the California Health Interview Survey[2]in this it was observed that individuals in same-sex marriages, including lesbian, gay and bisexual individuals, experienced significantly lower levels of distress compared to those who were not in legally recognised relationships. Similarly, married heterosexual individuals, experienced lower levels of distress compared to unmarried heterosexual individuals. When comparing different groups, married heterosexual individuals who were not in legally recognised relationships had the highest levels of distress.
Based on these findings, the researchers concluded that being in a legally recognised same-sex relationship, particularly marriage, appeared to reduce the mental health disparities between heterosexual individuals and lesbian, gay and bisexual individuals. They suggest that further investigation is necessary to explore the potential mental health benefits of same-sex marriages, as it has implications for public health.[3]
• Activism and advocacy
The literature highlights the significant role played by LGBTQ+ activities, organisations, and allies in advocating for same sex marriages in India. It acknowledged their efforts in raising awareness, challenging discriminatory laws, and promoting equal rights.
All the points herein stated provide a comprehensive understanding of the historic, legal and social dimensions of the topic- same sex marriages in India. It underscores the progress made, identifies the ongoing challenges and points towards the need for continued research, advocacy, and legal reforms to achieve marriage equality for the LGBTQ+ community in India.
Cases regarding homosexuality and same sex marriages in India-
- Naz Foundation v. Government of NCT of Delhi (2009):
In this case, the Delhi High Court decriminalised consensual homosexual acts between adults, striking down Section 377 of the Indian Penal Code. The court held that Section 377 violated the fundamental rights to life, liberty, and equality guaranteed by the Indian Constitution. This judgment was a pivotal step towards recognising the rights of LGBTQ+ individuals in India.
- Navtej Singh Johar v. Union of India (2018):
This landmark case, heard by the Supreme Court of India, resulted in the decriminalisation of homosexuality. The court declared that Section 377, to the extent that it criminalised consensual same-sex relations among adults, was unconstitutional. The judgment affirmed the rights of LGBTQ+ individuals, recognised their dignity and privacy, and marked a significant milestone in the struggle for LGBTQ+ rights in India.
- Joseph Shine v. Union of India (2018):
Although not directly related to same-sex marriages, this case dealt with the constitutional validity of adultery laws in India. The Supreme Court struck down the provision that made adultery a criminal offence, recognising the importance of individual autonomy and privacy in personal relationships. This judgment emphasised the principles of equality and non- discrimination and laid the groundwork for questioning discriminatory laws related to personal relationships.
- R. Radhakrishnan v. Union of India (2019):
In this case, the Madras High Court recognised the rights of transgender individuals to marry. The court held that denying transgender persons the right to marry amounted to a violation of their fundamental rights, including the right to equality and dignity. This judgment emphasised the need to expand the understanding of marriage beyond the binary of male and female and recognized the rights of transgender individuals in the context of marriage.
- Arunkumar & Another v. Inspector General of Registration (2020):
The Madras High Court, in this case, ordered the registration of a marriage between a transgender woman and a cisgender man. The court held that gender identity cannot be a ground
for denying the recognition of a valid marriage. This judgment further reinforced the rights of transgender individuals and their ability to enter into legally recognised marriages.[4]
Suggestion
Advocate for the legal recognition for the same sex marriages at the national level. This can involve Pershing legal avenues, such as filing petitions before the Supreme Court and advocating for legislative reforms that explicitly recognise and protect the rights of same sex couples to Marry.
Advocate for comprehensive legal reforms that address issues such as inheritance rights, property right and adoption rights for same sex couples. Work towards ensuring that existing family laws are gender neutral and inclusive, allowing same sex couples to access the same legal benefits and protections as opposite sec couples.
Support and strengthen LGBTQ+ advocacy groups and organisations working towards marriage equality. Collaborate with activist, lawyers, and community leaders to drive the conversation on same sex marriages, engage with policy makers and lobby for inclusive laws and policies.
Conclusion
The journey towards same sex marriage in India has witnessed significant progress in recent years. The decriminalisation of homosexuality and favorable court judgements have laid the foundation for recognising the rights of LGBTQ+ individuals.[5]
However, the lack explicit legal recognition for same sec marriages remains a major challenge.
While public attitudes are evolving, societal acceptance is still a work in progress. Continued efforts are needed to challenge deep rooted prejudices, educate the people, and foster an inclusive environment for all individuals, irrespective of their sexual orientation.
Legal developments and ongoing court cases[6] offer hope for future advancements in the recognition of same sex marriages. It is crucial to sustain the momentum and advocate for comprehensive legal reforms that guarantee equal rights and protections for same sex couple
Ultimately, the recognition of same sex marriages in India is not only a legal issue but also a social and cultural imperative. By promoting inclusivity understanding, and equality, India can move towards a more just and progressive society that values and celebrates the rights of all its citizens, regardless of their sexual orientation or gender identity.
Harshita Sehrawat BA LLB (2021-2026)
Vivekananda Institute of Professional Studies, Delhi
[1] Queering India: Same-Sex Love and Eroticism in Indian Culture and Society(Ruth Vanita) (Accessed: 16 November 2001)
[2] Same-Sex Legal Marriage and Psychological Well-Being: Findings from the California Health Interview Survey(survey by California Department of Public Health) (2013 February)
[3] National Institutes of health(.gov) ( https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3558785/) (Accessed: 10th may, 4pm)
[4] Above mentioned cases are significant in relation to same sex marriages in India. SCC Online
( https://www.scconline.com )(Accessed:10th may, 8pm)
[5] Hindustan Times( https://www.hindustantimes.com/cities/chandigarh-news/supreme-court- of- india-hears-petitions-for-legal-recognition-of-same-sex-marriage-invoking-right-to- equality-for- lgbt-identities-101682316306451.html ) (Accessed: 9thmay,6pm)
[6] The Hindu( https://www.thehindu.com )(Accessed: 9thmay,10pm)