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THE CONFLICT OF HOMOSEXUALITY

Updated: Sep 26

Author: V. Shanmuga Priya, V Year of B.A.,LL.B(Hons.) from School Of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University, Chennai.


Abstract

This analysis the homosexual marriages as an invisible conflict which is successfully kept under cover. The main thing attempts to describe and explain various aspects of Homosexuality including the history, the reasons behind it, the societal reactions towards such relations. The author also describes the insight from the countries where homosexual marriages are legalized and also draws their outcome out of legalising Homosexual relations. At the end taking fair and strong arguments both in favour and in against such relation. The author interprets about the possibility of acceptance in the homosexual marriages in India based on empirical and theoretical facts and evidences.


INTRODUCTION

Generally, the institution of marriage in society is extending only to male – female relationship, though we have gender- neutral marriage. The acceptance of homosexual marriage in society is gradually becoming more permissive nowadays. This change will increase in the forth coming days due to increasing number of jurisdictions that have decriminalised such homosexual acts e.g., S.377 of Indian Penal Code. But in some of the countries, the same sex relation was not legalized. As a result, to this the homosexual partners were denial of their legal and economic privileges which is bestowed by marital status. Like employment benefits, not able to file joint tax returns, and the health benefits regarding AIDS and the rights that arising out of the death of a partner which includes the property inheritance and interstate etc., all those benefits are mostly available to the heterosexual partner.


DEFINITION

The term homosexual logically means as of the same sex, being a Greek term, the ‘Homo’ means same and derived from the Latin term ‘sex’. The people who have sexual attraction or romantic over the person of the same gender. The man who is attracted to another male is called as ‘gay’. The female who is identified as the same sex is known as ‘lesbians. Homosexual marriages sometimes referred to as gay marriage between the two persons of the same sex.


HISTORY OF HOMOSEXUAL RELATION

The early western period with regard to homosexual relations comes from the Ancient Greece. Even in the Christian and non – Christian communities the homosexual marriages have occurred often. Researches shows that the such relation which was opposed by the Catholic Church, that opposed to the homosexual relations basically and was approved the same – sex marriages over 1500 years ago. But in the 21st century they were ceasing to socially accepted norm.


In preindustrial period, homosexuality was accepted by the lower classes but the people of upper classes were considered as immoral. In pre modern era the historic figures, love poetry and painting were depicted by Alexander the great, Leonardo da Vinci, Plato etc, make a centred-on relation to a people of their own gender.


The term homosexuality was firstly found in 1869 under the German pamphlet paragraph 142 of the Prussian Penal Code and its maintenance paragraph 152 which was drafted for North German Confederation written by Karl Maria Kertbeny.


The question arises is that whether the religion is an obstacle to this?

The homosexuality is not a new one. Even it is available in Hindu Mythology. The presence of same sex testifies in various forms under the Literature of Hindu, Muslim, Buddhist. And also, the ancient context such as Manu Smriti, Kamasutra, Arthashastra, Upanishads and puranas speaks about homosexuals. So, the instances of same sex love were found in all over the world and India is not an exception. E.g., even it is happening today in Gujarat (Angaar) a small village, at the time of Holi the transgender marriage was performed among the Kutchi Community. This marriage is celebrated for the past 150 years.


Therefore, the past is filled with the existence of homosexuality is proved by above said instances. For the past 10 to 15 years, the legal rights of lesbian and gay were shifted to have same sex relationship in order to protect the discrimination among them. Hence in recent years a various number of various jurisdictions had relaxed to curb the homosexual behaviour


FINDINGS OF EXPLANATION OF HOMOSEXUALITY

The basic understanding is that the factors determining the sexual orientation acts can’t predict as fast as possible. Some combination of nature and nurture would determine the sexual acts. Researches shows that homosexual act is mostly genetic in origin, which states that people with homosexual genes will behave less heterosexually. Findings suggest that homosexual men are sometimes feminized and other study found that the homosexual men and heterosexual women are masculine. Another effect is imitation, the transformation of cultural mechanism would turn people into homosexual behaviour. The failure to produce the initial sexual behaviour of the child may lack due to the family’s upbringing. Even the experience outside the family may also cause homosexual activities.


GLOBAL SCENARIO

In fact, sticking on to homosexual union, civil authorities may follow different structure. Sometimes they tolerate those formats but at times they may tend to avoid the rights given to the homosexual. In some other cases, they act in the favour of homosexual unions by giving equivalence to celebrate marriage legally and properly. Hence by increasing number of jurisdictions homosexual acts were decriminalised. Despite there are many criticisms by people, that law is obsolete and these laws must be removed.


Since 1974, homosexuality is considered to be an abnormal behaviour, later on it was removed from the category of mental disorder. In many countries the same sex laws were decriminalized. Likewise in various states across the globe, laws and policies were brought to protect the rights of the homosexuals. In the early 1990s and 2000s, ban in the same-sex marriage had created a debate all over the world. Presently, the same-sex marriage was recognized all over the world in six countries such as Canada (2005), Spain (2005), South Africa (2006), Netherland (2001), Belgium (2003). An estimated of nearly 155 million people across nation-wide or approximately 2.5% of the total population, live in places where homosexual marriages exist.


INDIAN PERSPECTIVES AND HOMOSEXUALITY

In Indian democracy, as far as marriage is concerned, in most aspects it is very similar to western democracy. In western side, the marriage is deemed to be a valid only after the state gives permission for the celebration of the marriage. In India, even though the marriage is not registered it is considered as a legal with regard to a religious marriage. This means any Hindu or Muslim can marry anywhere at temple or home. The state recognizes under Hindu Marriage Act, any marriage that is solemnized as per the customary rights and ceremonies of either party without registration, is legal. A Muslim marriage is not a sacrament, is contract. Today majority of Indians have not registered, even though they were legally married through their customary rights.


The presumption in Indian Marriage laws is reserved only for the opposite sex couples. But none of the Indian perspectives states the heterosexist bias. According to Hindu Marriage Act, by fulfilling certain conditions the marriage be solemnized between any two Hindus. The certain conditions that prohibit the bigamy, insanity and marriage before the age of 21 for male and age of 18 for female, is invalid. The gender is not mentioned here and it is assumed to be the third requirement of age. Our practise is most of the people assume that bride is biologically a female and bridegroom is a male.


Is custom of Muslim Marriage, any Muslim male asking the bride and groom, as if they give consent to the marriage then absolutely it becomes a valid marriage.


The conflict arises is that can the bride and groom be the same sex in relate to the marriage?


In India, personal laws are maintained for specific religion people. Thus, same sex marriages become a religious issue for its opponents and debate arises here is that, when their private relationship of them would turn into the public status of marriage. It is to understand that laws that criminalize the homosexuals is only the private act in concern with the private nature of an individual in which many countries may fit to legislate.


Over the last two decades that has been reported in India, the most of the lesbian weddings one of the women assumes her to be groom another as bride. Several other couples perform their marriages the groom would apply sindoor in the bride’s hair. Some of the biological females undergo or they say to sex change operation. Though the actual prosecution was rare, section 377 of Indian Penal Code has been decriminalized in order to completely protect the minorities from police harassment.


The opponents of LGBT Theory reject the marriages of homosexuals because it is assumed to be imitating heterosexuals in creating families.


LEGAL STATUS OF HOMOSEXUALITY IN INDIA

Section 377 of Indian Penal Code, 1860 refers to Unnatural offences which includes homosexuality in its domain sphere. This homosexual law in India was adopted from the British Indian Penal Code in 19th century. Section 377 states:

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonmen of either description for a term which may extend to ten year and shall also be liable to fine.


Also, section 294 of Indian Penal Code, penalizes any type of ‘obscene behaviour in public’ is also used against gay men.


In section 292 of Indian Penal Code, there is scope to include the homosexuality under this section, which refers to obscenity. The origin of this law (In England), homosexuality between consenting parties of LGBT has been abolished by the Sexual Offenders Act 1967, but in India, the consent is quietly immaterial when offence is constituted under this section.

CASES AND SENTENCES

In the early 1860 to 1992, only 30 cases in the High Courts and Supreme Court were reported. Among those 30 cases, 18 were non-consensual, 4 were consensual, in which 3 were reported before 1940. 8 cases were unspecified and out of 30 cases, 15 were registered as assault on minors.


And also, section 377 had been used to Intimidate women. In 1987, Tarun Kumar undergone female sex operation and married women named Lila in 1989. The Gujarat High Court held that it is a lesbian relationship and the marriage is considered to be annulled. Adoption made by him through any unnatural mechanism does not create manhood. The petition is done with the criminal action under section 377 of Indian Penal Code.


In 1992, 18 members of male were arrested in the park (New Delhi) on the state of suspicion that they were homosexuals. In fact they were arrested under public nuisance under the Delhi Police Act and not under section 377 of Indian Penal Code. After the protest made by the minorities people they were released from the detention.


In September 1994, it was cited by the prison authorities in India to justify that the refusal in distribution of condoms among inmates, which refers a sodomy is a crime under section 377 of the Indian Penal Code.


Another instance in 2001, the High Court of Delhi, challenged a petition on the ground that even there is consult between the two adults it was consider as criminalising homosexual acts.


CONCLUSION

The demand for the homosexual marriages is giving birth to a new conflict mainly for the family and society which cannot be denied. If this issue is not handled sensitively by the society, then this would result to be short sighted. Finally, the laws are supposed to represent these issues as a socially acceptable one, so that the new mindset to be need of the hour. Or otherwise, the ordinary prudent man will suffer accordance with inhuman exploitation, because the nature had nourished the need to be different.


End Notes

* A.Jama, ‘ Ashnas and Mehboobs; An Agghani Love Story’ Trikone Magazine

* Joseph Sherry: ‘ Emerging gay movement in India: a liberal – conservative movement’ i in Balachandran and Baalagaopal : The Indian Closet : ‘ In and Out’, Universitt of Illinois Press,USA.

* Sandip Roy Chowdhury The best of both worlds? South Asian biseculas speak out’ Indian Currents.

* Roy Sandip, In the beginning: an interview with Trikone found Aravind kumar, Trikone Magazine Tenth Anniversary.

* Alok Gupta, section 37u and the dignity of Homosexulas, Economic and Political Weekly,November 2018.

* Shamona Khanna: ‘Gay Rights’,Ale Lawyers, June 1992.

* Shivananda Khan ‘ Cultural Constructions of male sexualities in India’. In P.Aggleton, Bisexialities and AIDS (Taylor and Francis, Australia, 1996).

* Lane Tim Dean, Homosexuality and psychoanalysis (The University of Chicago Press, Chicago, 2001).

* Majorie Garber, Vice versa: bisexuality abd the eroticism of everyday life (Somon ans Schuster, New York; 1995).