SAME SEX MARRIAGE: POSSIBLE AMENDMENT IN SPECIAL MARRIAGE ACT

ABSTRACT

 In this research paper we will study what is same sex marriage, and about the special marriage act, the recent judgement about the same sex marriage, is their need of same sex marriage and what is further ruling of supreme court, on this case. What is the history of homosexuality in India, discrimination on lgbtq+ community. Where is same sex legalized and various problem for same sex marriage like adoption, succession, inheritance etc. there are some suggestion given in which the same sex marriage can be legalized.

KEYWORD

Same sex marriage, LGBTQ+, special marriage act, homosexuality, supreme court.

  1. INTRODUCTION

Same sex marriage is the marriage between two people of same gender. There is a hustle and tussle between the supreme court and the community of LGBTQ+ for legalization of same sex marriage as it violates their fundamental right. If same sex marriage is legalized it will be a turning point of the LGBTQ+ community as it will give them the legal recognition of a couple under the eye of law, but they will also be accepted by the society, and this will decrease the concept of discrimination against them and an opportunity to live the life as they want. India is a reserved country, and it does not accept the marriage between same gender the law defines marriage a union between a woman and a man. In 2018 the criminalization of homosexuality was struct down by supreme court which fall under Indian Penal Code (IPC) section 377[1], which gave a huge relief to the LGBTQ+ community, but it only decriminalization did not give any right to the community but only allow them to accept their unique identity. In 2017, Delhi High Court announced that the same gender couples can have a relationship, but it did not give them the right to marry each other as any other person of opposite sex would have. But in India the community is fighting for their rights which can possibly make a future change in the Indian law, but it would need a long run of waiting from the community side.

  • RESEARCH METHOLOGY

This study is descriptive and secondary data has been used, the study has been conducted for the sole purpose of knowing the problems faced by the LGBTQ+ community for getting legal recognition as a couple, the information have been collected from several sources like journals, newspaper, website and many more.

RESEARCH DESIGN:

Descriptive research design: Descriptive research is a study in which there is an analysis of a situation and phenomenon which has happen and giving a detail description of the same it is through. Descriptive research is research In which the information is collected to answer the question what and not why.

  • REVIEW OF LITERATURE

A research paper discusses that the person law only applicable on religion and not on the persons gender, marriage should be equal, and it should be not held on the basis on the religion of a person the researcher argues that it violets the religious freedom and the research argued that the Hindu marriage act and special marriage act is capable of been amended as it permit marriage irrespective of their religion. The researcher researched on the basis of the religion as a core part of the research[2].

A research paper argue that the homosexual people need marriage as a legal recognized it challenged the political and cultural accept of the Indian society. It concentrated the need and demand of homosexuality; the government should bring legislature change and that there is a right of privacy is a fundamental right.[3]

  1. METHODS

WHAT IS LGBTQ+ COMMUNITY:

growing up people come across term like lgbtq+, the terms are easy as it easy as they are abbreviation and straightforward

Lesbian: it is a term to identify a woman who is attracted to other women.

Gay: a term which identifies when a man is attracted to other man.

Bisexual: it identifies a person who is attracted to both man and women.

Transgender: it is a term in which a person who identifies itself as a man or a woman. When a person finds that the sex assigned to them at birth is not correct or prefer other gender is a transgender

Queer: it is a discriminatory term which people used to call gay people, now it is an umbrella term for the community but there might be some people who might find it rather immoral to be called so not many people know about this term.

People who belong to this community face many difficulties in the Indian community like violence, suicide, homelessness from their family and society

HISTORY OF LGBTQ COMMUNITY IN INDIA:

In September 2018, supreme court decriminalized the homosexuality, but the judgement people in India started condemning the court for giving a judgement which was against the Indian culture and accused of Indian of adopting the western culture instead

however Indian mythology and history say something else. It was the British dogma of criminalizing the homosexuality and added the section of 377 in Indian penal code in 1861, it mirrored the outlook of European people by criminalizing homosexuality as they followed their belief.  In ancient India you can find many texts and monuments of homosexuality and it shows that Indian people were openminded in ancient time.

It is necessary to know the Indian history regarding homosexuality in its culture, in Hindu scripture there is talk about fluidity of gender humans and yakshas and yakshinis[4] were accepted in the scripture of India.

There are various stories which trace back to Mahabharata in which a story of women shikhandini or shikandi is well known, shikhandini was raised by king drupada to destroy the empire of Hastinapur and kill bhishma, she was betrothed to a women , but later her wife came to know of the fact, the friendly bond of the two kingdom was at stake to solve the problem shikhandi visited the mountain to perform penance later she meet a yaksha to whom she told her story and the yaksha proposed to exchange the sex with later shikhandi turned man and took part in Kurukshetra war, there is a pair of deity, in Rig Veda Mitra-Varuna[5] which are mentioned together which implied them being a couple, they are god of justice. In Kamasutra there is mention of lesbians or woman couples called “swarinis”, they used to marry each other and raise the children together.

In medieval era, homosexuality was not very popular or known but they were not ostracized, people were openminded and no use to look down on them for having different preference. The Delhi sultanate Aladdin Khilji son Mubarak was known to have relationship with a man. Founder of Mughal dynasty Babur uses to write of his love for a boy name baburi and his writing was not looked down upon. Many nobles in Mughal empire were side to have follow homosexuality.

When britishers arrived sexual activities which went against the order of nature which also included homosexuality were criminalized under section 377 of the Indian penal code. In 1977, Shakuntala devi a publisher, published a article or her study names “the world of homosexuality” it is known for “full complete acceptance and not tolerance and sympathy[6]. In 1981 all India hijra conference was called in Agra and total 50,000 member from whole country and they were given legal voting rights as a third gender in 1994. In 1994 a PIL was filed by AIDS bhedbhav Virodhi andolan but is was dismissed, finally in 2001, a PIL was filled by Naz foundation which challenged the section 377 of IPC in Delhi high court, then in 2009 Delhi court ruled that section 377 violets the fundamental right of life, liberty, privacy, equality under constitution, it implied that sexual relation among same gender was not a crime but there relationship was still unlawful. Then a astrologer suresh kumar koushal challenged their decision in supreme court it became a huge landmark in India cases.

Supreme court dismissed several petitions by center and some organization against its elucidation that its earlier judgement on section 377, affirming that lgbtq community a “little fraction” of the country’s population. Then SC[7] gave a verdict that transgender people should be treated as a third gender, freedom to express their sexual orientation was given by SC in 24th august 2017 as their sexual orientation was protected by fundamental right of right to privacy but the homosexuality was still forbidden. Supreme court finally struct down the section 377.

26th November 2019, the parliament passed the transgender persons bill, it showed a person whose birth gender does not matched their sexual orientation, it dismissed the discrimination on them against employment, healthcare, education and other services, however it was rejected by the queer community on the grounds that every person was transgender and they would be recognize by a certificate issued by government, they did not included other genders like intersex, transmen, lesbians gays as it only gave importance to transgender. Government revised the transgender persons act which allows the sex reassignment surgery free of cost at hospitals and government will take the cost of education and shelter for transgender community.

there are many case where people from lgbq community have faced discrimination and have rather have their life ended by suicide, in 1980 two women mallika and lalidambika which identifies as lesbians died by suicide inkerela,, Aniket patil, 25 aged from Jalgaon killed himself from suicide, he was in a MNC after finishing his studies but was harassed and bullied for his sexual orientation at workplace, a girl named Anjana hareesh, 21 years old killed herself from suicide in may 12, 2020 in goa where she posted a video on Facebook stating that her parents were harassing her mentally and physical and were sent to psychologist for her different identity.

A 16-year-old boy died by jumping off the 15th floor on feb 24, 2022 and left a suicide note in which he condemned the school authority for not taking action against his bullies which became sexual assaulters, her mother shared a post on Instagram saying that she need justice for her son the school does not support her son rather protects the bullies.

Ther are many more cases in which many people have ended their life, or their sexual orientation became hindrance for their career it is high time that the people start accepting the lgbtq community, in fact in recent movie by Ayushman Khurana “subh mangal zadya savdhan” receive positive comments and was a hit in theaters, it can be implied that people of India are now starting to accept the lgbtq community.

WHAT IS SAME SEX MARRIAGE AND WHERE IS IT LEGAL:

same sex marriage refers to marriage between two people of same gender. It is not legal in India but there are efforts for the same, but there are several other countries where same sex marriage is legal.

In 2001 Netherlands was the first nation to legalize same sex marriage, and then many countries legalized the same, Estonia in 2023 accepted for same sex marriage and became first Baltic and ex-soviet country to do so, it will take effect from 1st Jan 2024. Mexico also legalized same sex marriage in October 2022, Switzerland held a poll in2021 for legalization of same sex marriage and right to adoption and the law took place on July 1st, 2022. In Australia parliament did a postal survey and it showed that people in Australia were support of this new law, the law makers approved of the same sex marriage and defined marriage as “a union of two people”.

Lawmakers in Germany were in favor of the same sex marriage, but chancellor angel Merkel voted against it but due to overwhelming support from people and members the law was passed in 1st oct, 2017, parliament of Finland passed a ill for same sex marriage in November 2014 the president passed and signed the bill in feb 2015, but it took effect in march 2017. United state legalized the same sex marriage in June 2015, but the law was accepted in 2003, the U.S. supreme court gave the judgement that same sex couple have right to marry and are protected under it. Scotland passed the bill for same sex marriage in February 2014, Brazil legalized same sex marriage in 2013 to allow the couple to obtain license of marriage[8]. There are many countries where same sex is legalized like France, New Zealand, Denmark, Iceland, Sweden, south Africa, Spain Canada, etc.

PROBLEM FOR LGBTQ COMMUNITY:

There are various problems for same sex couples in which they cannot enjoy it as the heterosexual couples do. The Hindu marriage act, 1955[9] in which marriage can only take place between a bride and bridegroom which means male and female, only take effect for Hindus, Jain, Buddhists. This is same for Christian marriage act[10], and for Muslim marriage the provisions are according to Quran which does not allows homosexuality, so for homosexual couples their only hope is the special marriage act 1954 but the concept for marriage is same as Hindu marriage act

If same sex couple does not have their marriage legally recognized, they face many problems such as:

  1. Adoption: a homosexual couple cannot adopt a child. If their marriage gets legalized, they can get to adopt a child, there are many children in India who are orphan, if a law is made, they can get a home and a family.
  2. Inheritance: inheritance is also difficult for them because they are based on personal laws for different community like Hindu, Muslims, Parsi, Christians, in which only a man and a women get the right but not the lgbtq people.
  3. Other matters: for homosexual couple it becomes difficult to give convent as they are not legalized by law. If anyone is hospitalized it need the signature of the parents, guardian, or spouse. And in case of join account in bank or a nomination for FD etc, they need a recognized relationship without it they cannot mention it.

WHAT IS SPECIAL MARRIAGE ACT:

The special marriage act 1954[11], is an act which provide a legal procedure or a framework for marriage between two people who belong to different culture, community, caste, religion. In this the marriage is approved by government rather than their religion, in India both religious and civil marriage are accepted is similar to UK marriage act[12]. The act is only applicable on people of faith which include Hindus, Muslims, Sikhs, Christians, Jains. This act provides legal recognition to couple and gives benefits like adoption, inheritance, succession, etc . polygamy is forbidden and if a person has married more than one person it nullify the marriage under this act. To marry under such act both the parties must give a notice to marriage officer of the district beforehand 30 days and one of the partners must have lived in the district at least 30 days before submission of the notice under section 5 of the act[13]. If any person object to the marriage, they have 30 days before the marriage to reconsider their decision. The age limit to get married under this act is 18 for girl 21 for boy, male and female.

In Muslim marriage and Hindu marriage act the partner is to convert to either religion to get married under personal law but in special marriage act they are allowed to marry without converting to other religion they can follow their faith, but if a person get married under such act, he will not be entitled to get inheritance from their family.

Recently two same sex couple filled a petitioning supreme court to get same sex marriage legalized this petition was around the constitutionality of special marriage act[14]. They argued that sec 4(c) is discriminatory as it only talks about marriage between male and a female. And they are deprived of the various benefits like adoption, surrogacy, retirement benefits, employment etc. they argued that non legalization of their marriage is violation of their fundamental right of freedom of expression, equality, and dignity. They took support of NALSA v. union of India and Navtej Singh johar v. union of India[15] in which they were given rights as third gender of homosexual and non-binary gender.

In the recent judgement of the CJI, they gave the judgement that they cannot strike down or add words in special marriage act to include same sex couple as it is the work of parliament and legislature to make law, they cannot interfere in it. They said that the same sex couple have a equal right and freedom in a union but there is no fundamental right to marry in constitution. Right to marry is not a fundamental right in constitution but is a statutory one, right to marry is a statutory enactment but the fundamental right to marry is recognize by supreme court under its judgement and is obligatory by article 141 of constitution.

 Supreme court referring to article 16 of Universal Declaration of Human Right and puttaswamy case, recognized that a person choice to marry is a integral part of article 21 of constitution, article 16(2) reads that discrimination is not allowed on the basis of gender, race, caste, sex, birth, descent, place, residence or any of them[16] . Supreme court held that lgbtq community are entitled to the rights as same to any other person under constitution ads are protected equally by law[17].

The marriage only gets registered in India in their respective personal laws of Hindu, Muslims, Parsi, Christians or under special marriage act as a marriage between man and a woman the judiciary must ensure that person’s right are not violated on any ground. If a person marries under special marriage act it is recognized under law.

Every person has a right to marry a person of its choice same sex should have a legal recognition as any other couple to form a family, marriage is important for a person is it provide social and various economic benefits for the couple. Chief justice of India identifies that cohabitation or forming a family is a fundamental right, and government should take measure to legalize it. A person’s gender cannot be recognized by its biological gender there is no absolute concept for a man a women it is only defined by humans. There are many countries which have recognized same sex marriage a total of 32 countries have legalized same sex marriage.

5.  SUGGESTION

Awareness creation: In India there is need to create awareness about this concept as it is new, and many people are not aware about it and many Indian believe it as a western concept. There should be campaigns to create awareness about lgbtq community and to have equality about a person orientation.

Reformation by government: special marriage act 1954, should be amended as to legalize same sex marriage, it is quite difficult to amend the whole personal laws of various religion in India. So the option for parliament is to amend the special marriage act as it give legal recognition to couple of different religion and it is quite practical to marry under this act.

Efforts from everyone: not only lgbtq but every people can help to create a society in which every person is equal regardless of his gender. It first starts from us to get a change in society, the government, society, various companies, and religious leaders, etc. can help to get the equality.

Uniform civil code:  in 2017 a draft was proposed of uniform civil code in which the marriage was define in a broad spectrum which include a union of two people which can be defined as any person regardless of their gender. And it also defines partnership as living together of two person giving legal right to same sex couple. Uniform civil code gives right to same sex couple and freedom of choice, but no further action was taken so far.

6. CONCLUSION

In this study I have concluded that lgbtq+ community have faced many discriminations on the ground of their different sexual orientation in their life, career, opportunities, education and many more, from British era till now the concept of homosexuality is taboo. India is a country of diverse and rich culture where many religions is followed and accepted the homosexuality term is different, but it is getting accepted as many people are coming out, but they still don’t have the legal recognition as heterosexual couple get. Indian government have to take into consideration that the law cannot be discriminatory for people there is need to either amend the special marriage act or to implement uniform civil code or to make a new law, the Australia parliament legalized the same sex marriage after a long fight from the side of the lgbtq+ community so there is some hope for people in our country. Lastly it is up to the parliament to pass the law for the people as in the earlier judgement from the supreme court stated that they cannot amend or add a law as it is the work of legislature there is difference in power and limitation in  it they cannot interfere in it.

REFERENCE

CASES:

  • Supriya Chakraborty and Abhay dang v. union of India. AIR 2023 INSC 920
  • NALSA v. union of India, AIR 2014 INSC 275
  • navtej Singh johar v. union of India AIR 2018 INSC 790
  • Shafin Jahan v. Ashokan K.M and others, AIR 2018 INSC 366
  • Navjet Singh johar and others v. union of India, AIR 2018 INSC 790

STATUTES:

  • Indian penal code, section 377, act no.45 of 1860.
  • Hindu marriage act, 1955, S.5.
  • Christian marriage act, 1872.
  • Special marriage act, 1954.
  • Uk,s marriage act, 1949.

ARTICLES:

  • Aditi Yadav, a brief history of lgbtq+ in India,( 9th November 2023, 9:19), 2021.https://newsletter.sscbs.du.ac.in/a-brief-history-of-lgbtq-in-india/
  • Josephine rozelle, Brianna Navarre, megan trimble, same sex marriage legalization by country, ( 11th November 2023, 12:32), 2023https://www.usnews.com/news/best-countries/articles/countries-where-same-sex-marriage-is-legal
  • Smarnika Srivastava, can same sex marriage be legalized in India, ( 11th November 2023, 12:37).https://nyaaya.org/guest-blog/can-same-sex-marriages-be-legalised-in-india/
  • Emanuella girnberg, what the ‘Q’ in LGBTQ stands for and the other identity terms eexplaine, ( 10th November 2023, 17:12), 2019,https://edition.cnn.com/interactive/2019/06/health/lgbtq-explainer/
  • Padmakshi sharma, marriage equality 5 reasons why supreme court didn’t include same sex union under special marriage act, (11th November 18:51), https://www.livelaw.in/top-stories/marriage-equality-5-reasons-why-supreme-court-didn’t-include-same-sex-unions-under-special-marriage-act-240413#:~:text=On%20October%2017%2C%202023%2C%20a,the%20ambit%20of%20’marriage’.

ONLINE SOURCES:

  • Same sex marriage in India, (10th November, 18:24), https://www.drishtiias.com/daily-updates/daily-news-analysis/same-sex-marriage-in-india.
  • Special marriage act,(10th November, 18:20), https://www.drishtiias.com/daily-updates/daily-news-analysis/same-sex-marriage-in-india
  • Plea for marriage equality, ( 11th November, 18:00), https://www.scobserver.in/cases/plea-for-marriage-equality/

NAME: AAYUSHI DAVE

COLLEGE: JITENDRA CHAUHAN COLLEGE OF LAW, MUMBAI.


[1] Indian penal code, act no.45 of 1860, section 377. Unnatural offence – whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for or with imprisonment of either description for a term which may extend to ten years, and shall also be liable.

[2] Satchit bhogle, the momentum of history – realising marriage equality in India, rev. 3.4 2019 (July-dec 2020)

[3] Akshaya Kishor, phD, researcher scholar, NIMS university rajasthan, jaipur, validity of same sex marriage in india: past and future

[4] Mythological figures often represented in a pair the yakshas and yakshi are found in various culture of early history of buddhist, jain, and hindu, yaksha are male and yakshini are the female counterpart. They were believed to be spirit which inhabitated trees, mountains, rivers, oceans.

[5] Rig veda 1.15.6<[sukta 15],

Rig veda 8.35.13<[sukta 35],

Rig veda 1.152.1<[sukta 152]

[6] Aditi Yadav, a brief history of lgbtq+ in India, newsletter.sscbs.du.ac.in

[7] Abbreviation for supreme court

[8] Josephine rozelle, Brianna Navarre, megan trimble, same sex marriage legalization by country, usnews.com, June 27, 2023

[9] Hindu marriage act, 1955, S.5.

[10] Christian marriage act, 1872.

[11] Special marriage act 1954.

[12] Uk,s marriage act 1949.

[13] Special marriage act, 1954.

[14] Supriya Chakraborty and Abhay dang v. union of india .

[15] NALSA v. union of India, 2014 and navtej singh johar v. union of india 2018.

[16] Shafin Jahan v. Ashokan K.M and others, 2018

[17] Navjet singh johar and others v. union of India, 2018 .

Leave a Comment

Your email address will not be published. Required fields are marked *