SAME-SEX MARRIAGE IN INDIA
Author: Sakshi Jain, LL.M from Nirma University, Ahmedabad.
Heterosexuality has been widely accepted in Indian culture for a significant period of time. The discourse surrounding marriage and other forms of partnership has undergone a transformation over the years, leading to changes in our emotional attitudes towards such subjects. India boasts a diverse range of religious customs that can dictate the proceedings of a couple’s marriage ritual. Regrettably, several laws contain verbiage that pertains solely to heterosexual unions, such as the terms “husband” and “wife” or “man” and “woman,” or have been construed restrictively to encompass only such unions. The Indian Supreme Court overturned the ban on homosexuality in 2018 in the case of “Navtej Johar v. Union of India”. The verdict provides limited provisions to confer equivalent entitlements on homosexual pairs as compared to heterosexual pairs. Article 21 of the Constitution of India guarantees the right to life, which encompasses the freedom to choose one’s spouse, and this right is extended to all citizens.
Several recent judicial decisions, including “Lata Singh v. State of Uttar Pradesh”, “Shafin Jahan v. K.M. Ashokan and Ors”, and “Shakti Vahini v. UOI”, have all upheld a woman’s right to marry outside of her caste or religion. These decisions are particularly noteworthy because they were all issued in India. Cases involving same-sex partnerships, such as “Navtej Johar v. UOI”, “Madhubala v. State of Uttar Pradesh”, and “Chinmayee Jena v. State of Orissa”, reflect the growth of the concept of the right to select one’s own spouse. These cases were brought in India, Uttar Pradesh, and Orissa, respectively. There is still a significant amount of work to be done before same-sex couples are fully included in marriage laws; nevertheless, several judgments that were handed out in 2020 themselves show that the fundamental rights of same-sex couples have been acknowledged and that they are allowed to live with each other. Because same-sex couples are still discriminated against in India, they are unable to take advantage of the many possibilities that are offered to heterosexual married couples. As a result, members of the LGBTQ+ community continue to struggle for social and legal acceptance.
Governments have started to think about recognizing same-sex weddings as the LGBTQ population has started to question their rights. At the moment, 30 countries permit same-sex unions. Most of these nations are Western industrialized nations. In 2001, the Netherlands became the first country to permit same-sex unions. 2010 saw the official acceptance of gays and lesbians into the US military. El Di Rupo, the leader of Belgium, is the first openly gay head of state. In May 2020, Costa Rica made same-sex unions legal. Soon, more countries will make same-sex unions legal, and the LGBTQ community will finally win the equality for which it has long campaigned. The homosexuelle Lesbian Festival is held in Lisbon; Midsumma is observed in Sydney; Gay and Lesbian Pride is observed in Johannesburg; Women’s Holiday Week is observed in Greece; and Mardi gras is observed in Brisbane. In many countries, homosexual relationships are accepted on both a legal and political level. In more than 70 nations, including, Mauritania, Iran, Pakistan, Saudi Arabia, Sudan, Afghanistan, the United Arab Emirates (UAE), Nigeria and Yemen, homosexuality is punishable by death as well as by life in prison in Burma, Bhutan, Georgia, Indonesia, the Maldives, Singapore, the UAE, and Yemen. Diverse nations have very diverse legal repercussions for homosexuals. Whereas, in England, homosexual sodomy marriages between consenting adults are permitted.
RECENT NATIONAL PERSPECTIVE
Both legally and socially, India places a high priority on the institution of marriage. In our society, marriage is connected to social and legal obligations. Since marriage is crucial to human flourishing, Article 21 of the Constitution guarantees the right to choose one’s spouse for the rest of one’s life. In “Shakti Vahini v. Union of India”, the Supreme Court of India held that the right to marry anyone one chooses is a basic freedom.
The Hindu Marriage Act of 1955 makes no mention of the requirement that a marriage be between a man and a woman. In a survey done in June of this year, about 69% of participants stated they were in favour of legalizing same-sex unions. If the public at large supports same-sex marriage and it does not break any personal laws, then what, if anything, is wrong with making it lawful for two people of the same sex to get married? Do we still adhere to the standards set by traditional society? It is perplexing that we continue to deny members of the LGBTQ community access to fundamental protections given how far society and the law have advanced. On September 8, 2020, four members of the LGBTQ community filed a PIL (public interest litigation) with the Delhi High Court (HC) in an effort to obtain the right to wed under the Hindu Marriage Act (1955). The petitioners argued that these actions deprived them of their constitutional rights. In a lawsuit filed in the Kerala High Court, Nikesh Pushkaran and Sonu MS contested the Special Marriage Act and demanded the same rights as any other married couple. Following a recent Madras High Court decision, transgender people are now accepted as brides under the Hindu Marriage Act, 1955. The Ramayana and the Mahabharata were cited by the court as supporting texts in its decision that the applicants' marriage should be officially recognized. Despite this, same-sex LGBT couples are not able to legally get married, have children, or inherit property.
The Supreme Court of the United States declared in Obergefell v. Hodges that same-sex marriage arises from the basic right to marry. No citizen will be treated differently based on their religion, race, caste, sexual orientation, or place of birth, according to Article 15 of our constitution. This proves that it is unfair and in violation of people’s rights to forbid same-sex marriages.
CONTENTS OF THE CASE PROPOSING SAME-SEX MARRIAGE Refusing marriage to people who need it goes to the heart of the question of equal equality because it limits their rights, treats them unjustly, puts them at a physical and moral disadvantage, and puts them at risk of serious personal injury. Only when societies are certain that doing so will shield people, families, and communities from serious danger should they pass legislation outlawing marriage. Eminent legal minds have commented on the issue because of this, and the US Supreme Court informed proponents of gay marriage that they lacked the justifications for their position. The joining of the sexes has no effect on anyone. As no one’s ability to marry is contingent on the rejection of anyone else, the claim that heterosexual marriage hurts is ridiculous. To date, no studies have found any detrimental effects from making same-sex marriage legal. Since the Netherlands passed similar legislation in 2001, no other country has felt the effects of global warming. The United Kingdom and the United States are among the 25 countries in which same-sex marriage is legal, but neither country has mentioned the exceptionally high mortality rate of firstborn children. The truth is that in countries where same-sex marriage is legal, neither culture nor the validity of standard marriage have suffered.
To what extent same-sex marriage is legalized will depend on the outcome of the ongoing debate on the topic. This should be considered a religious rather than secular debate. My analysis of the arguments for and against same-sex marriage has led me to the conclusion that homosexuality isn’t a sin but rather a strategy for achieving one’s goals in romantic or sexual relationships. If two gay men want the same legal protections as married heterosexual couples, there’s no logical reason to prevent them from getting married in a civil ceremony. A promise and a pair of shoes convey the universality of affection. How does this discredit the institution of marriage between a man and a woman, or vice versa? It appears evident to me that there is a high degree of interest and dedication. If we live in a time where people’s freedom of choice isn’t respected, then India can’t be a free country. Homosexuals have been labelled as diseased and abnormal by mainstream culture. Homosexuality, however, is neither new nor strange to Indian society; rather, it has always been present, but in a much more muted and veiled form. Ideally, we’d take a comprehensive and multipronged approach to dealing with gay marriage. However, the usefulness and efficacy of this approach need to be demonstrated. The current policy, which does not promote gay marriage, is increasingly seen as harmful to both homosexuals and society as a whole. The advancement of human rights necessitates the legalization of same-sex marriages.