SAME SEX MARRIAGES IN INDIA: A COMPARATIVE STUDY
Ishita Yadav, III year of B.A.,LL.B. from University of Petroleum and Energy Studies, Dehradun.
In a landmark ruling dated September 6, 2018, the Supreme Court unanimously overturned part of Section 377[i] of India's Criminal Code, which decriminalizes same-sex relationships between consenting adults.[ii] LGBT people are now legally allowed to have consensual traffic. Same-sex marriages are not yet legally recognized in India. To put it more correctly, section 377 is exhaustive. However, India also recognized the rights of LGBT groups by decriminalizing the provision of unnatural crimes. Traditionally, India has identified same-sex unions as an entrenched, alien-culture syndrome and related social disorder. Therefore, LGBT groups are working in the background on a step-by-step approach that is required to address all of the problems and rights of LGBT citizens in India. The priorities of these groups so far have been the repeal of Section 377 of the Indian Penal Code and the enactment of anti-discrimination laws.
Notably as of 2020, 30 countries recognize same-sex marriage namely, the United Kingdom, the United States, Germany, Spain etc.
The legal issues surrounding same-sex marriages in the United States are determined by the country's federal system of government, where a person's status, including marital status, is largely determined by individual states. Sex marriage was not practised or recognized in any US jurisdiction but later began to be practised and legally recognized in various jurisdictions.
On June 26, 2015, the U.S. Supreme Court lifted all state bans on same-sex marriages, legalized them in all fifty states, and urged states to review the Obergefell v. Hodges.[iii] The Supreme Court ruling put an end to all interstate legal complications related to same-sex marriages, as it ordered states to both conduct same-sex marriages and recognize same-sex marriages in other states.
No union is deeper than marriage for it embodies the highest ideals of love, loyalty, devotion, sacrifice and family. By forming a marital union, two people become greater than they used to be. As some of the petitioners show in these cases, marriage embodies a love that can last until after death. It would misunderstand these men and women to say that they do not respect the idea of marriage. Their plea is that they respect it, respect it so deeply that they try to find its fulfilment for themselves. Your hope is not to be condemned to live in solitude, excluded from one of the oldest institutions of civilization. They demand equal dignity in the eyes of the law. The constitution grants them this right.
The loophole in the Indian Judicial System
India does not have a uniform marriage code. Every Indian citizen has the right to choose which law applies to them based on their community or religion. Although marriage is regulated at the federal level, the existence of multiple marriage laws complicates the problem. To name a few: HMA, 1955 exists in the present. The amazing thing about them is that none of these codified marriage laws explicitly define marriage as between a man and a woman, and these acts also explicitly prohibit non-same-sex unions. However, the laws have heteronormative bases and were interpreted in order not to recognize same-sex unions.
However, in 2017 a draft unified civil code was proposed that would legalize same-sex marriage. According to the proposed Code, marriage is defined as "the legal union of a man with a woman, a man with another man, a woman with another woman, a transgender with another transgender, or a transgender with a man or a woman ". After careful consideration and taking into account personal laws, Union Minister Ravi Shankar Prasad said in February 2020 that "there is currently no proposal to legalize same-sex marriage," adding that the Union government is not considering the issue.
Some parts of society also reject same-sex marriage on the grounds that such marriages cannot produce children and that the only sex permitted in marriage is the procreative sex. However, this contradiction is unfounded. Several married couples across religions are not capable of procreation and in that sense, marital intercourse between them cannot be faulted for, on the grounds of only one permissible sex - procreative. Constitutional morality dictates that the state must take steps to be as comprehensive as possible. Denying same-sex marriage would mean discriminating against queer people because of the illegal sexual orientation.
The right to marry a person of one’s choice is integral to Article 21 (right to life and liberty) of the Constitution.[iv]The Constitution guarantees to each individual the right freely to practise, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme…Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. They form the essence of personal liberty under the Constitution.
When the consensual intercourse between same as well different sex is valid, then why not the marriage. According to Article 14[v], no citizens should be deprived of any right based on factors such as caste, sex creed etc. Moreover, the developing nations have also taken steps towards it and legalized same-sex marriages stating that it would be a violation of their fundamental right.
The journey may be long and arduous, but young people in India are ambitious and have their whole lives ahead of them. During the Section 377 hearings, many of the petitioners stressed that this country, India, belongs to them as well as everyone else. They wanted the constitution to reflect their needs and rights in the face of changing times, and that is exactly what happened. Will it happen again? Only time can tell.
[i]The Code of Criminal Procedure Act No. ACT NO. 2 OF 1974, INDIA CODE (1993), § 377.
[ii]Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, (2016) 7 SCC 485.
[iii]576 U.S. 644.
[iv]ShafinJahan v. Asokan K.M & ORS, 2018 SCC OnLine SC 343.
[v]INDIA CONST. art. 14.