Abstract
Same sex marriage in India is seen as a new area which is grabbing the attention of the Indian society at large. The term homosexuality is a term that although seems simple, defines a wide concept which is not anything alien to the Indian society or Indian subcontinent as this very concept of homosexuality can trace its presence in this society since the era of Vedas. The concept of homosexuality was a part the society until the British came up with IPC in 1860 which criminalized the act of homosexuality under its section 377. Section 377 of the Indian penal code states “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.” This section of IPC continued to remain valid since the year 1860 even after the awareness of the fact that has been proved through several research the ‘homosexuality’ is a normal form of human sexual conduct. 70 years after our country got its independence, in the year 2018, the Supreme Court of India gave its verdict in the case Navtej Singh Johar v. Union of India[1] which partly decriminalized section 377 of the IPC and resulted in validation of relationships between two consenting persons of same sex or gender. Although granted this right, but the LGBTQA+ community needs to fight for their basic rights even today as they face innumerable discrimination in the society. They are also deprived of their basic fundamental rights that are guaranteed by the Constitution of India as the society repudiates from accepting them as a part of them due to homophobia. The supreme court is currently hearing the matter of validity of same sex marriage in the case of Supriyo vs Union of India[2]. This research paper attempts to understand the concept and limit of homosexuality. The scholar attempts to explain the position of homosexuality and same sex marriage in India accordance with different Indian statutes along with the way forward.
Keywords
homosexuals, same sex marriages, legalize, criminalized, sexual behaviour.
Introduction
Marriage has always been viewed in the society, be it the contemporary or throughout the history, as such sacred institution that every individual aspires to be a part of in their lifetime. Marriages, particularly in India, is seen as a sacrosanct ritual that is regarded as the most beautiful bond between two individuals. Marriage is described as “the condition of being a husband or wife; the legal relationship between two persons married to each other; matrimony” in the Oxford Dictionary. Since the main obstacles in the way of the development of this concept were gradually overcome with time, the idea of marriage as an institution also changed with the passage of time. In the present time, the word “cohabitation” is often used to refer to a marriage, which means the act of cohabitation, when practiced by a couple, should be sufficient to prove the basic validity of marital status between the two person. However, when the idea of equality is applied, such a contemporary notion, although having such a zestful aspect, remains static. The community of LGBTQA+ continues to struggle and remain very concerned about the validity same-sex marriage, and fight for their basic fundamental right to marry a person according to their own choice and also gaining the validity of such marriages w.r.t Indian laws.
Research Methodology
This paper is of desriptive nature and the research is based on secondary sources of deep analysis of the right of homosexual couples to get their marriage solemnized as according to the Indian laws and have their basic fundamental rights guaranteed to them by the Indian Constitution secured. Secondary sources of information such as newspapers, journals and websites are used for this research.
Review of Literature
Same-sex marriages in India provides a diverse and evolving perspective on this significant social and legal issue. Scholars and researchers have explored various aspects, including historical perspectives, legal frameworks, cultural and societal attitudes, and the impact on health and well-being.
Historically, studies highlight the existence of same-sex relationships in ancient Indian texts and traditions, shedding light on the acceptance of diverse sexual orientations and gender identities prior to colonial influence. However, the colonial-era legislation and Victorian morality imposed a restrictive framework, marginalizing homosexuality in Indian society.
The legal landscape surrounding same-sex marriages has witnessed notable shifts. The landmark judgment in Navtej Singh Johar v. Union of India decriminalized consensual homosexual acts, setting the stage for further legal debates and progress. Ongoing discussions revolve around the constitutional validity of recognizing same-sex marriages, drawing on principles of equality, non-discrimination, and privacy enshrined in the Indian Constitution.
Cultural and societal perspectives shape the acceptance or resistance towards same-sex marriages in India. Traditional values, religious beliefs, and societal norms play a significant role in influencing attitudes towards LGBTQ+ individuals. While there is growing awareness and support from various quarters, challenges such as stigma, discrimination, and the need for societal acceptance persists.
Research also examines the impact of legal recognition of same-sex marriages on the health and well-being of LGBTQ+ individuals. Studies have explored mental health outcomes, access to healthcare, and the importance of social support networks for same-sex couples. Such research highlights the potential benefits of legalizing same-sex marriages in reducing health disparities and promoting overall well-being.
Overall, it demonstrates the complex interplay of historical, legal, cultural, and social factors in shaping the discourse around same-sex marriages in India. It underscores the need for further research and advocacy to foster a more inclusive society that respects and recognizes the rights of LGBTQ+ individuals.
Homosexuality & same sex marriage: an historical aspect
Homosexuality and same sex marriage, as a concept, can trace back its source since time immemorial as according to various conclusive clinical research tests, homosexuality can be proved as a normal and natural form of human sexual conduct, which is in existence in the society since the time relationships and marriages came into existence in the society.
To determine the way forward of homosexuality as well as same sex marriages, we need o discuss both the concept in accordance with their historical point of view. To get a more clarified idea about the status of legality homosexuality in India, we need to separate the perspective that is inherited by Indians from what is prevalent in the western society and discuss both of them separately. Thus, we divide the discussion in two parts that is:
- Indian Perspective
- Western Perspective
- Indian perspective: Indian society, although remained well tolerant and liberal towards the viewpoint of homosexuality and same sex couples in the society among themselves, got its perspective change with the passage of time. After the british crown took over the control of Indian subcontinent in 1858, the crown came forward with a law to regulate the criminal acts in the land which they named the Indian Penal code 1860. In this very act, the section 377 dealt with same sex couples, criminalizing them of having a relationship with a person of same sex as them and invalidating any such marital status. This regulation, after getting enacted in India, changed the viewpoint and perspective of people regarding same sex couples and homosexuality in the society. Having been set as a precedent, section 377 gradually became the reason behind the growing intolerance in the society w.r.t homosexuality in India.
Since that time, the homosexual couples, or even a person who is homosexual, started finding themselves as insecured in the society. Incidents of protest against such laws by LGBTQA+ community or suicide cases gradually became a norm in India during 80s and 90s. The administration, although aware of such incidents, were rigid on their part to make any alternation regarding the laws related to same sex marriages and homosexuality in India. News of such committing suicide came forward regularly, a couple named Lalita and Mallika[3] were reported of committing suicide as their relationship was not accepted in the society and they were not allowed to stay together even after they both were in love with each other.
Report of such suicidal cases are prevalent even today in the 21st century due to the fact that the marriage between a couple having the same sex or gender is not recognized properly even after the decriminalization of section 377 of IPC in 2018 by the Supreme Court of India.
- Western Perspective: In the western society, the institution of marriages has always been regarded as a institution for the purpose of procreation and not love and cohabitation and thus the couples of same sex were generally kept in ignorance and were not regarded as a part of the society. Even in India, it was a colonial rule that criminalized the act of homosexuality.
With the emergence of Judeo-Christian ideology, which forbade any type of unnatural relationships or sodomy between the same sex and the opposite sex, reproduction acquired prominence in society. The most harmful statute criminalizing homosexuality or sodomy with the death penalty was the Buggery Act of the 16th century. Subsequently, identical punishments were imposed in all of the British Colonies, which resulted in the sanctioning of homosexuality on a global scale.
The first country to legalize same-sex unions was the Netherlands (2001). After that, 29 more nations followed suit, including Argentina, Canada, France, New Zealand, United Kingdom etc.
Another example of courts legalizing homosexuality and same sex marriage is of the Supreme Court of USA which decided in favour of same sex marriage[4] in 2015 and granted the status of equality to all same sex marriages and same sex unions. This Judgement came to be considered as a precedent in the role of acceptance of same sex marriages and homosexuality in the United States of America.
Same sex marriage as according to the Constitution of India
The constitutional validity of same-sex marriages in India has been a subject of intense legal and social debate. Scholars and legal experts have examined constitutional provisions and fundamental rights to assess the legitimacy of recognizing same-sex marriages. Key constitutional principles that form the basis of arguments in favor of such recognition include equality, non-discrimination, and the right to privacy. Article 14 of the Indian Constitution guarantees the right to equality, and proponents argue that denying same-sex couples the right to marry constitutes discrimination based on sexual orientation. Article 15 prohibits discrimination on various grounds, including sex, and proponents argue that sexual orientation should be included within its ambit. Article 21, protecting the right to life and personal liberty, has been interpreted to encompass the right to choose one’s partner and to live with dignity, irrespective of sexual orientation. The landmark judgment in Navtej Singh Johar v. Union of India[5] decriminalized consensual homosexual acts, indicating a significant shift towards recognizing the rights of LGBTQ+ individuals. As legal and societal attitudes evolve, the constitutional validity of same-sex marriages in India continues to be explored, with an increasing recognition of the principles of equality, non-discrimination, and personal liberty as foundational to the argument for legal recognition and protection of same-sex unions.
Article 14: Class legislation is prohibited by Article 14 of the constitution, although fair categorization for legislative purposes is not. The goal of such classification must be taken into account when determining reasonableness from the perspective of article 14. The categorization must be deemed unreasonable if the purpose is irrational, unfair, and unjust.
Article 19: The essential rights that are guaranteed to the nation’s residents are outlined in Article 19 of the Constitution. It is a well-established concept of constitutional law that a person’s set of fundamental rights is what distinguishes them from other animals. One such right that ensures citizens a decent standard of coexistence is Article 19 of the same sex marriage also violates these fundamental freedoms guaranteed under Article 19 of the constitution. Article 19(1)(a), which refers to the “right to freedom of speech and expression,” is the main right that has been violated. While the same-sex couples share a bond of love and compassion, they are unable to express that love and compassion in front of the general public because marriage is still not recognised, which continues to be a barrier to social acceptance.
Marriage as according to the Special Marriage Act (1954)
The Special Marriage Act of 1954 is an important legislation in India that provides a legal framework for interfaith and inter-caste marriages, as well as for marriages between individuals of the same sex. Same-sex marriage, under the purview of the Special Marriage Act, is a significant step towards ensuring equality and non-discrimination in the institution of marriage.
The Special Marriage Act 1954, unlike other personal laws in India, allows individuals to marry without any consideration of their religion or caste. It recognizes the right to choose a life partner based on personal preferences and ensures that love and companionship are not bound by societal norms or prejudices. Same-sex couples, just like heterosexual couples, can enter into a legal union through this act, securing their rights and giving recognition to their relationship.
One of the key provisions of the Special Marriage Act pertaining to same-sex marriages is Section 4, which specifies the conditions for marriage. It states that both parties involved must be of a legal age, capable of giving their consent, and not within the degrees of prohibited relationship. This provision ensures that the relationship is consensual and that parties have the freedom to choose their partner irrespective of gender.
Section 5 of the act lays down the procedure for the solemnization of the marriage. It requires both parties to give notice in writing to the Marriage Officer of the district in which at least one of them has resided for a specified period. The notice is then published, and objections, if any, are invited. After the expiration of the notice period, the marriage officer conducts the solemnization of the marriage, ensuring that all legal requirements are fulfilled.
The act also provides for the appointment of Marriage Officers, who are responsible for registering and solemnizing marriages under the act. These officers play a crucial role in facilitating same-sex marriages by providing guidance, issuing certificates, and ensuring that the rights of the parties involved are protected.
Furthermore, the Special Marriage Act grants various rights and responsibilities to married couples, regardless of their sexual orientation. It recognizes their legal status, inheritance rights, and obligations towards each other. Same-sex couples married under this act are entitled to the same legal protections and benefits as heterosexual couples, including the right to adopt children and the right to inherit property.
However, it is important to note that the recognition and acceptance of same-sex marriages in India, including those under the Special Marriage Act, have evolved over time. The act itself has not been amended to specifically mention same-sex marriages. The recognition of such unions is primarily based on progressive interpretations of constitutional rights and landmark judgments by the judiciary.
In conclusion, the Special Marriage Act of 1954 provides a legal framework for same-sex marriages in India, enabling individuals to exercise their right to marry the person of their choice, irrespective of gender. It recognizes the fundamental principle of equality and strives to eliminate discrimination in the institution of marriage. While challenges and societal resistance may persist, the act marks a significant step towards inclusivity and the protection of the rights of same-sex couples.
Suggestion
With the present situation regarding the issue of homosexual couples in India kept in mind, if the administration grants the homosexual couples rights to solemnize their marriages as according to the law then this decision will be seen as a very useful one as it will benefit many sectors of the society.
As the basic purpose of marriage is no longer limited to procreation, as mentioned in various judgements, the legalization of same sex marriages will add to this. The homosexual couples, unable to procreate, will look forward to adopt children from orphanages, which in many way, solve the burden of over population and would help those orphans to have and get a better future after getting adopted to a good household.
Conclusion
In India, same-sex relations are not accepted by the majority of the population. This is due to the fact that a lot of individuals believe that their different religions and cultures have taught them that these relationships are “unnatural” or “unholy.” This results in an established system of discrimination towards the LGBT population.
India does not specifically forbid same-sex weddings, but there is also no law that makes it clear that it is legal to marry. Even though the Indian government has not formally acknowledged them, same-sex weddings have occasionally been performed there. Numerous religious academics truly Consider the fact that such partnerships were very prevalent in ancient Indian culture and that the scriptures do not forbid them. However, due to post-colonial changes in how society views culture, many people are unaware of this information, which has led many to declare that such partnerships are alien and against Indian culture.
As of right now, same-sex unions in India are not legal in terms of government recognition. There aren’t even any alternatives to marriage. The thesis of this study is that same-sex marriage in India is not socially or legally recognized. Gay people’s rights are being infringed upon. They are unable to assimilate into Indian culture because they are denied the opportunity to take part in the marriage institution, which is valued so highly there.
NAME – Srinjay Raha
COLLEGE – Vivekananda Institute of Professional Studies, GGSIPU
COURSE – BBA LLB / 2nd semester
[1] AIR 2018 SC 4321, (2018) 10 SCC 1
[2] Supriyo a.k.a Supriya Chakraborty & Abhay Dang v. Union of India thr. Its Secretary, Ministry of Law and Justice & other connected cases (2023
[3] Ruth Vanita Love’s Rite: Same Sex Marriage in India and the West p. 6, 2005.
[4] Obergefell v. Hodges 576 U.S. 644(2015)
[5] AIR 2018 SC 4321, (2018) 10 SCC 1
Pingback: SAME SEX MARRIAGE IN INDIA: UNDERSTANDING THE POSITION OF HOMOSEXUALITY, SAME SEX MARRIAGES ACCORDING TO THE INDIAN LAWS. – Startup Story