Same sex marriage in India

Khushi

LL.B. (student)

Law center – 2, Faculty of law, University of Delhi

ABSTRACT

This study develop into the multifaceted aspects of same-sex marriage, exploring its social, legal, and cultural implications. Through a comprehensive analysis, it investigates the historical evolution of attitudes towards same-sex unions and community, the legal battles for marriage equality, and the impact of legislative changes on different communities. Additionally, the research explores the societal shifts in perception and acceptance in marriage law, shedding light on the challenges faced by individuals within the LGBT community. By synthesizing perspectives from various disciplines, this study aims to contribute to a deeper understanding of the ongoing discourse surrounding same-sex marriage and its profound influence on contemporary society in Indian prospective.

Main points : LGBT right to marry, special marriage act 1954, Indian constitution.

INTRODUCTION

Same-sex marriage, a progressive step toward equality, challenges societal norms and fosters inclusivity. As the world there is example of USA they recognised same sex marriage in 2006 in their country evolves, the discourse surrounding this topic becomes increasingly significant, emphasizing the fundamental right of individuals to love and commit to whomever they choose and want to get married. This introduction sets the stage for a nuanced exploration of the various dimensions surrounding same-sex marriage in Indian prospective.

What is marriage

Marriage is a legally or socially recognized union between two individuals that establishes rights and obligations between them towards the each other, often involving interest & interpersonal relationships, typically intimate and sexual and emotional support responsibility. It can have cultural, religious, and legal significance, varying across societies. The Hindu Marriage Act, enacted in 1955, governs Hindu marriages in India. It defines conditions both male or female should not sapinda to each other for a valid Hindu marriage, including the eligibility of the parties major and sound mind, marriage ceremonies Various ceremonies like Saptapadi, where the couple takes seven steps together, are also significant, and registration requirements. Couples must meet certain criteria male 21 and female 18, such as age and relationship restrictions, for a lawful and valid marriage.

Same sex marriage

Same-sex marriage refer to the legal and social recognition of the marriage between individuals of the same sex. It allows same-sex couples to enjoy the same legal rights and responsibilities to each other as opposite-sex couples, including the right to marry, adopt children, responsible to each other and access various benefits. The acceptance and legality of same-sex marriage vary globally, with some countries and regions embracing it, while others may have legal restrictions or lack recognition.

Personal laws

Hindu personal law – Hindu personal law in India does not recognize same-sex marriages.

Foreign law – The legal status of same-sex marriage varies worldwide topic to focus. Many countries recognize and allow same-sex marriages in their country and territories, while others do not allow same sex marriage in their country. several countries, including Canada, the United States of America, and numerous European nations, legally recognize and permit same-sex marriages in their proviso.

Special Marriage Act 1954 – the Special Marriage Act of 1954 in India consider and allow for same sex couple marriages without considering the religious faith or beliefs of the individuals involved. This includes marriages between people of the same sex. Couples opting for a marriage under the Special Marriage Act must meet certain condition in India which is recognised.

Indian constitution

Article 14 right to equality of the Indian Constitution ensures equality before the law and equal protection of laws for all individuals within the territory of India. It prohibits discrimination on grounds of religion, race, caste, sex, or place of birth.

Article 15 right to opportunity of the Indian Constitution prohibits the discrimination on grounds of religion, race, caste, sex, or place of birth. It empowers the state to make special provisions for the advancement of socially and educationally backward classes, as well as for Scheduled Castes and Scheduled Tribes improve their social ranking.

Article 19 right to Liberty of the Indian Constitution guarantees certain fundamental rights related to freedom of speech and expression, assembly, association, movement, residence, and profession. However, these rights are subject to reasonable restrictions imposed by the state in the interest of sovereignty and integrity of India, the security of the state, friendly relations with foreign nations, public order, decency, or morality.

Article 21 right to life and privacy  of the Indian Constitution is a fundamental right that states, “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” This article emphasizes the protection of an individual’s life and personal liberty and ensures that any deprivation of these rights must be in accordance with a fair and just legal process.

Article 12 to 35 are fundamental rights in Indian constitution article 14, 15, 19 and 21 are fundamental rights which gives individual rights and liberty to live their life with their dignity and respect within the territory of India.

Background

same-sex marriage is not legally recognized in India. There is many issues in Hindu personal law, special marriage act and foreign law. Supreme court judges only focus on special marriage act 1954 but not in Hindu personal law because it arises conflict within the territory of India.

The Naz Foundation v. Government of NCT Delhi (2008) case in India was a landmark judgment. The Delhi High Court give decision that decriminalized consensual homosexual acts between adults by declaring Section 377 of the Indian Penal Code unconstitutional it against the equality and right to privacy This marked a significant step towards recognizing the rights and liberty of the LGBT community in India.

Suresh Kumar Kaushal v. Naz Foundation (2013) case, the Supreme Court of India overturned the Delhi High Court’s 2009 judgment that had decriminalized consensual homosexual acts between two adults. The Supreme Court reinstated Section 377 of the Indian Penal Code, stating that only the Parliament could change or repeal it with the help of separate legislation. This decision was later revisited and overturned in the Navtej Singh Johar v. Union of India case in 2018, where the Supreme Court decriminalized consensual same-sex relations.

Section 377 of the Indian Penal Code criminalized homosexual acts and physiological sex and it was decriminalized by the Supreme Court of India in the Navtej Singh Johar v. Union of India case in 2018. The decriminalization of consensual same-sex acts does not automatically legalize same-sex marriage. In India, there have been important legal developments related to homosexuality and physiological sex. The most important case is Navtej Singh Johar v. Union of India (2018), where the Supreme Court decriminalized consensual same-sex relations between adults by striking down Section 377 of the Indian Penal Code. This decision marked a significant step towards recognizing the rights of the LGBT community in India.

Recent Supreme Court Verdict

The Supreme Court of India’s refuse legal recognition to marriages between persons of the same sex and same gender is a huge legal setback to the queer community in the country in case of Supriya Chakraborty   and another V union of India 2023.

Given the progress in law and ideology in recent years and the deepening of the meaning of individual rights and liberty, there was widespread expectation that the five-judge Constitution Bench would give the Special Marriage Act 1954(SMA), a law that allows any two people to marry, a gender-neutral interpretation to include people belonging to the same sex and gender. Over the years, the amplitude of Article 21 of the Constitution has been expanded to cover the rights of life, privacy, dignity and marital choice, but the highest court has stopped short of the extra step needed to allow marriages or civil unions that are not heterosexual and physiological sex. All five judges have chosen to leave it to the legislature to enact such a law and enforce. Chief Justice of India D.Y. Chandrachud and Justice Sanjay Kishan Kaul have ruled that queer couples and same sex have a right to seek recognition for their union and marriage, but declined to read down the provisions of the SMA to that effect. On the other point of view, Justices S. Ravindra Bhat, Hima Kohli and P.S. Narasimha reject the position, holding that any such recognition can only be based on statute power. In another effect, the Supreme Court has accepted the government’s view that any move to legalise same-sex marriages will fall in the legislature’s domain. All five judge were agree on right to marry is not a fundamental rights in Indian law. If there is any need for the marriage law there should be separate legislation for making law and enact in within the territory of India. same-sex marriage in a 3:2 verdict.

Supreme Court refused from granting legal recognition for same-sex marriages, it did make a strong call to the State to take steps in legislative form to end the discrimination faced by same couples and to ensure protection for their right to marry.

  1. No Inherent Right to Marriage for same sex couple: Marriage is not an inherent, unqualified right, but rather one subject to statutes and customs in Indian law system.
  2. No Right to Civil Union Without Legal Framework: Legal recognition of civil unions, akin to marriage, can only be established through an enacted law by legislature action. The Court cannot mandate or create such a legal status for the purpose of marriage law.
  3. No Legal Status for Queer Couples: Queer couples have the right to form emotional, mental support to each other or sexual relationships, drawing from the right to privacy article 21 of Indian constitution, choice, and autonomy. However, this doesn’t grant them legal status or entitlement to union of marriage for same couples.
  4. Transgender Persons’ Right to Marry: Transgender individuals in heterosexual relationships and physiological sexual relationship are free to marry.
  5. Committee for same couples right to marry: A high-powered committee (HPC) chaired by the Cabinet Secretary, appointed by the Central Government, should comprehensively examine factors related to same-sex marriage.

Key Points of the SC ruling:

Majority Verdict

Right to marry is not a fundamental rights in India.

Civil union needs separate legislation for the purpose of marriage law.

All five judges agreed that there is no fundamental right for non-heterosexual couples to marry with each other, with the majority view being that the legislature must decide on the issue of same-sex marriage in Indian law.

Minority verdict

Chief justice of India justice DY Chandrachud  and justice Sanjay Kishan Kaul has opinion There should not be any discrimination for the same sex couple marriages. If there is any discrimination it violate the article of Indian constitution Article 14, 15, 19 and 21 right to equality, right to opportunity, right to Liberty, right to life and privacy.

Constitutional authorities should carve out a regulatory frame to recognise the civil union of adults in a same-sex relationship and get married with each other.

Solution/ suggestions

The time has come for major steps to be taken to bring about reform and change in the Hindu Personal Law, special marriage act and foreign marriage law in India. In order to accomplish these following steps must be taken:

Supporting same-sex and gender marriage promotes equality and inclusivity, fostering a society where individuals can freely express their love and commitment to another person. It’s important  for legal recognition, societal acceptance, and equal rights for all couples, regardless of their gender and sex as other countries in world.

Separate legislation for the purpose of making law in favour of same sex couple and gender in India.

ROLE OF THE STATE: Parliament should step in with Measures for a same sex couples, drawn from basic principles of personal Freedom, human rights and justice in the country. Strict measures must be taken against if the violates democratic rights guaranteed to the individuals by the Constitution of India.

INTRODUCTION OF GENDER JUST PERSONAL LAWS: Since most personal laws special marriage act 1954, reflect the marriage between two individuals solemnized. So what we need are gender and same sex just personal laws.

PRIORITISATION OF GENDER EQUALITY: Priority must be given to the equality between men and women in Terms of their fundamental rights and constitutional rights over conservative interpretations of religious scholars and personal laws. This can be done by saying a

Big no to discriminate the same sex couple marriages. The personal law question needs to be understood in the context of patriarchy and

Laws that accord secondary status to men and women who want to get married with their same sex need to be reformed in favour of same sex marriage in India.

Conclusion

The Judgment is historic for same sex couple and same gender in the country granting equality to right to marry. The Court has opened a golden window for all communities to push for progressive reform in personal laws that Impact all women, men and children and others. The acceptance and legalization of same-sex and same gender marriage mark a significant step towards fostering inclusivity, equality, and the recognition of love in different forms. As societies evolve, embracing the freedom for individuals of all orientations to marry and choose their life partner not only upholds human rights but also contributes to a more tolerant lovable and compassionate world. marriage stands as a timeless institution and commitment that brings together individuals in a union marked by love, commitment, and mutual support, responsibility towards the each other. While customs and practices may vary across cultures, the essence of marriage lies in the shared journey of growth and love, companionship, understanding partnership and the creation of a shared life together. It continues to be a cornerstone of human connection, love and their faithful love and dignity reflecting the enduring human desire for connection and partnership for their whole life.

Reference:

  1. Indianexpress.com › India
  2. Indian Polity-Laxmikanth
  3. Latest laws. Com
  4. www. TheHindu.com
  5. www.livelaw.in
  6. www.barandbench.com

Khushi

Law center 2, Faculty of law,  University of Delhi

First task, research paper 1

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