Same-sex marriage in India is a topic that is very widely discussed, after the very recent case of Supriya Chakraborty and Anr v. Union of India, the case however denied the right of same-sex marriage but is this is the end of India’s forward thinking. The Indian nation has come a long way from accepting LGBTQI existence to providing equal rights in all sorts of formats. This research paper will attempt to research the aspect of same-sex marriage if there is a scope in India beyond the present judgment, it will also research how India has evolved through the years from a very primitive thought of not accepting LGBTQI to the stage where India is now providing rights for LGBTQI. The paper will attempt to understand and see if India can or has the chance to turn the tide of the present scenario of the LGBTQI community or if will India stick to the same old thinking about marriage and the LGBTQI community. Is this one way to tell that India is still not willing to move past the traditional way of thinking?
Keywords: LGBTQ, Same-Sex Marriage, Section 377, Special Marriage Act.
INTRODUCTION
The institution of marriage is a highly controversial concept or word, this institution is not easily defined by dictionaries. There are several reasons for this institution to be controversial for example traditions, culture beliefs, religion, legal rulings and many more. The term marriage can be defined when 2 people are in the state where they are referred to as spouses of each other and this state is done in a conceptual manner with the institution being recognised by the law.
The above definition does not and this is not a dictionary definition but a definition that can showcase what a marriage means. When we discuss the legal definition of marriage each country has its own legal definition of marriage. For example in the United states marriage can be divided into 3 parts firstly a union of individuals, second the individual that are taking part in the marriage have the ability to marry thirdly it should be consensual and finally it is a contract done within the law or by the law. In India the term marriage does not have one particular definition because of the diverse needs and multiple cultures in India, for example Hindu, Muslim, Christian and etc. The Hindu marriage for marriage can be done between a man and a woman, this is 1 particular change from The US definition of marriage. In a Muslim marriage it is considered to be a contract between a man and a woman. These are the 2 main definitions that define marriage in India.
Same sex marriage can b defined as a marriage the takes place between 2 partners who are of the same sex who could be either women or men. Around the world same sex marriage has become or have been legalised countries like United States, United Kingdom, Canada, Australia and etc. India has a total separate subject matter on same sex marriage the recent judgement on same sex marriage that is Supriya Chakraborty and Anr vs Union of India has cost a great Lord of commotion with regard to this topic the LGBTQ community have had their fair share of improvement in when talking about rights till the topic of marriage has taken place. This research paper will give us the outline of how the LGBTQ community has progressed and for what has led to the sudden progression pertaining to marriage.
According to all the cases androids provided to all the LGBTQ community the voice certainty of hope that the right to same sex marriage would be provided but in response it had backfired, which has brought up a big question mark about the forward momentum with regard to the LGBTQ community and there resolve for their rights that has to be granted. In this research paper we will be exploring the scope of same sex marriage in India .
RESEARCH METHODOLOGY
This research consists mostly of information taken from both primary and secondary sources such as research papers and journal articles. The primary sources include sources such as the supreme court website and cases.
LITERATURE REVIEW
It is said that the human race at one point of time left in a state where marriage did not exist where all men had access to all women. Where children were born out of this barbaric act. It is said in the Mahabharata that this sort of a society existed until a sage prohibited this sort off living. The ancient times especially India marriage was mode or medium where husband and wives were not treated as each single individual entity but rather what treated as separate hubs which becomes a whole after marriage.
It is said that the function of marriage was to continue their generation or race with the bearing of children and to ensure that their culture and heritage is followed down the line. It was considered marriage to be a secret divine union. Marriage institution in the present era has changed a lot. In this research paper we will be seeing how has the institution of marriage changed for a certain people (same sex marriage).
REGULATION:
When mentioning about same sex marriage it very important for us to understand that same sex marriage is not the fight problem that occurred for the LGBTQ community. It started of with the Naz foundation case dated 2009 where the case referred to the decriminalization of section 377 in India. During the Victorian period in 1860 section 377 had clauses which stated that homosexuality is to be considered an abnormal activity and that this should be rectified with the help of the state by criminalizing or punishing this form of behaviour.
The Naz foundation case was about slashing down this part of the section stating that the section was unconstitutional in nature where it specifically opposes article 14 and 15 of the constitution, which talks about discrimination on the basis of caste, religion, race, sex, and etc, furthermore it also talks about equal protection of the law. This paved the way for hope that same sex marriage could be legalised in India. First for same sex marriage to be legalised in India it has to be first accepted in India so here is how this was the stepping stone for the fight to recognise same sex marriage in India.
The conclusion that was about was that sexual activity which was done on a voluntary purpose would not be penalised. The next landmark that followed this series is the Justice Puttaswamy case, this case primarily covers article 21 that is write to privacy and this privacy is a fundamental right, when section 377 is still recognised it would violate the right to privacy which is article 21, section 377 originally denied a person’s dignity and criminalised that individual on the aspect of that individual’s sexuality which violates article 21 of the constitution. Justice Puttaswamy case was another stepping stone for the LGBTQ community for recognition of same sex marriage.
The above cases show the constitutional viewpoint to take down section 377 of the IPC that criminalises gay persons. These are the 2 main cases that led to a bigger improvement. Navtej Singh Johar vs Union of India This case was the next case that showed that section 377 of IPC was violative of the Indian constitution. The issue was that section 377 made homosexual act against the law which discriminated the homosexuals and also it was violative of their rights or rather fundamental rights. With this the court held that section 377 of the IPC was an discrimination based on sex and is an infringement to right to equality.
Further this case brought about the decriminalization of the homosexuality all together. This was seen as a big step towards the greater good that is same sex marriage. Although one would easily think that with the above judgements it can be mentioned that the possibility of same sex marriage is possible but in India quite the contrary took place in the case of Supriya Chakraborty and Anr vs Union of India in 2023.
In the case of Supriya Chakraborty and Anr vs Union of India It was a very contradictory judgement to that of all the cases that had a positive impact in the LGBTQ community. The court denied the right to same sex marriage and claimed that is was not a fundamental right that was to be granted to homosexual people and the supreme court had stated 4 questions when denying this claim for same sex marriage. Firstly, whether LGBTQ community had a fundamental right to marry?. Unanimously the code held it is not a fundamental right for the LGBTQ community to marry, however having said that the court did, give an exception where transgender people have the to marry.
The judge’s opinion was that transgender people command the codified law along with the personal laws that govern India with regard to marriage. the judges mentioned that the social institution of marriage it’s older the than the legislation and the state, this social institution of marriage has laws That are mainly pertaining to child marriage abolition of sati enabling widow remarriage etc. These laws show that for marriage its a union between a man and women.
This cannot be changed with the new cultural diversity although people may argue that gay lesbians and transgenders dated back to the olden ages but still it even back then they did not have laws pertaining to LGBTQ community, that is the sole reason for the absence thereof laws that show that marriage between 2 people of the same sex is violative of the fundamental rights. It is not built within the codification of loss that is Hindu Marriage Act Hindu succession act annexure C therefore majority of the judges held that marriage is unqualified under Part 3 of the constitution for homosexual people.
The second question that arose during this case was if couples have a right to have civil unions? Majority stated that the couples have the right to enter into a relationship which is of their choice of their preference and which no one has any right to comment on. Furthermore if 2 individuals of the same sex decide to enter in a relationship and they have been in a relationship for a very long time. It does not mean that they would be considered as husband and husband or wife and wife. The Chief Justice of India mentions that the state has to provide and enable the right 2 homosexual to be in a relationship and this and this should not be based on or restricted towards the sex they choose. Now we get a clear idea that marriage is not allowed but homosexuals can choose to be in a relationship if they want to be one.
The third question would be due to the exclusion of homosexual couples from the SMA. Does it render SMA unconstitutional?. In this aspect Chief Justice mentions that the SMA it’s not an act that only emphasises on heterosexual couples and their marriage which is said to be inter cast but having said this he also mentioned that if certain parts of the SMA is deemed unconstitutional then the only way to fix it would be either by rendering those relevant parts to be unconstitutional and striking them off but due to this the whole purpose of the SMA would be broken up or it will not fulfil for the purpose it was made the second option would be by substituting those several or reading down those several legislation alone but the drawback of doing this would mean that SMA would go back to the legislature where it will have to be drafted once again. The conclusion of the 3rd question would be that it is not possible or the SMA is not unconstitutional. The last question that was held in court was if these couples have the right to adopt children?
Adaptation of children is governed by the Juvenile Justice The regulations framed by the CARA and finally the parent legislation. Since all these acts require either a single parent or a joint adoption that is governed by a married couple, having this in mind homosexual couples are not married so a simple reason is that since they are not married they cannot adopt but the CJI held that this kind of regulation should not be acceptable morally and so the CJI granted that all unmarried couples along with homosexual couples the right to adopt. These were the 4 main questions that were answered with regard to same sex marriage with this it can be told that the hope for same sex marriage was not present after this shocking judgement. This is the current situation of India but is there any scope for India to accept same sex marriage?
SCOPE OF SAME SEX MARRIAGE IN INDIA
Indian marriage is regulated by several personal laws in India namely Hindus, Christians, Parsis and Muslims. Section 5 of the Hindu marriage act provides ‘A marriage may be solemnised between any two Hindu’. This shows that there might be scope for a gender neutral interpretation. When this act was written it did not consider the possibility of same sex marriage. When taking a very practical approach the act only presumes the two individuals to be of different sex. When personal laws are being approached the main point that is taken to consideration is that of the religious belief allows for same sex marriage.
When this is being incorporated into the personal laws there’s very little scope when involving personal laws. The other hope or scope that can incorporate same sex marriage is the SMA. The special marriage act’s main purpose was to incorporate the marriages between two different castes or foreigners to an Indian, but since the special marriage act main purpose is for special marriage maybe it could be considered, if there needs to be any changes it is on the legislature to change it with the imposing of a bill. Although there has been one such incident in the lower house where the bill failed with a very wide margin of 71-24. Now with the present judgement of is Supriya Chakraborty and Anr vs Union of India it has become very firm that same sex marriage cannot be induced and appropriated in a country like India. As mentioned in the history of marriage, the institution is done by looking at various aspects. India is a country that is rich in culture and heritage it would seem that people will still want to follow that tradition that once present love wasn’t the only factor when mentioning marriage, love has been a very recent inclusion in the institution of marriage so it has evolved from a different standpoint.
SUGGESTIONS:
The only scope that LGBTQ community has is this special Marriage Act. This special Marriage Act also has its limitations. The judiciary is not responsible for the forward thinking based on the judgment that it has given the legislature is to be blamed if they have not included same sex marriage in this special Marriage Act although India could take inspiration from countries like the USA and UK at the same time it might not seem appropriate to take inspiration from these 2 countries because thinking about from a traditional historical or rather religious view almost all religions do not accept seems 6 marriage it is clearly mentioned in the previous paragraph that there was no scope whatsoever in any of the personal laws to bring in same sex marriage rather it opposed it for example the Muslim law the Muslim law does not support LGBTQ community and also posses them to an extent. Due to the religious and diverse culture in India it would be tough for the Indian government to bring in a same sex marriage because all laws pertaining to marriage has clauses in them that contain about both husband and wife duties, but when we talk about same sex marriage what would you make of when there is 2 husbands and 2 wives would be responsible for whom.
CONCLUSION
Can I conclude that India’s forward thinking has come to a stop? Or could this be a stepping stone to what lays ahead for the LGBTQI community. After this research paper I have concluded that India has not stopped its forward thinking because when you look at the scope all the laws pertaining to marriage are covered through the personal laws which cannot be touched. The question arises about maintenance, divorce, dowry etc. Considering the present Indian marriage condition it is safe to say that unless and until the legislature bring in an idea to make some changes in the special Marriage Act there won’t be any significant changes with regard to the LGBTQ community and same sex marriage. Although the LGBTQ community had their perks it might not be enough for the recognition of same sex marriage.
Name of Author: Akhilesh Raj.
College Name : O.P.Jindal Global University.