CRITICAL ANALYSIS: WHETHER THE STATUS OF SAME-SEX MARRIAGES IN INDIA IS APPALLINGLY LONG-DELAYED

| August 3, 2021 | Criminal Law | No Comments

This article was written by Jyoti Rai, a student of University Institute of Legal Studies, Rayat Bahra University, Mohali.

ABSTRACT

Homosexual individuals in India confront lawful and social troubles not experienced by non-LGBT people. Sexual action between individuals of a similar sex is illicit and same sex couples legitimately can’t wed or acquire a common association. Starting at 2018, be that as it may, the Supreme Court is good to rethink whether to sanction same-sex sexual action and Uniform Civil Code, if endorsed in its present shape, would authorize same-sex marriage in India.

LGBT rights in India have partial liberty the question is on the integrity of Indian system that whether a right provided to the couple which fulfills the half purpose is justified? Most LGBT individuals or couples in India stay in the cocoon of fear to get exposed, in dread of separation from families as well as from society, who consider homosexuality to be shameful and also a sin which is beyond when crosses the bridge of empathy disguises itself in sociopath y. Since the decriminalization of the Section-377 something is given but a lot is still pending. There is discrimination directly towards the freedom of expression our custom validates us to express with authority, here expression to live together show affection towards your partner is allowed but no authority is guaranteed.

This kind of association with each other is totally prohibited by the society as well as from the system. Same-sex relational unions are not lawfully perceived in India nor are same-sex couples offered constrained rights, for example, a common association or a local organization. This paper discusses the severity of the issue not only on social grounds but on legal grounds.

CHAPTER-1

INTRODUCTION

“In the unification of two minds, orientation of sexuality is irrelevant.”
― Abhijit Naskar, Either Civilized or Phobic: A Treatise on Homosexuality[1]

Laws should be gender neutral, union of two likeminded people who wants to spend their life together this is a personal choice which has been taken with considerable thinking. Rights should be vested to the spouse not to a particular gender in this era every single person is vulnerable to hypocrisy in societal beliefs which is morally wrong. In Hindu Vedas marriage is considered as sacrament union of ‘two souls’ and the same Vedas defines that souls has no gender.

Earlier homosexuality was criminal offence under Section 377[2] of Indian Penal Code Around two years back honorable Supreme Court passed judgment On 2 July 2009, in Naz Foundation v. Govt. of NCT[3] of Delhi, the Delhi High Court held that provision to be unconstitutional with respect to sex between consenting adults, but the Supreme Court of India overturned that ruling on 11 December 2013. Homosexuality is a taboo in India because even after this progressive judgment, certain question incidental to homosexual relationship remained unaddressed by the Apex court and the government of India. One such question is ‘same sex’ marriages’. The law of the land sees members of the LGBT community members as individuals not as ‘legit couple’ due to which the emotional feelings and mental peace of these people are suppressed they hesitate to get married to the love of their life and live in solitude. One of the main reasons is non- acceptable attitude of people towards the sexual orientation of an individual according to his choice rather being there. In any society marriage is the ultimate closure to a love story irrespective of other irrelevant aspects which are recognized by the society, same is with Live-in relationships suddenly after marriage the status of the couple changes from anti-social to social.

  • EQUALITY IN MARRIAGE LAWS

Human Rights Charter [Article 16] recognizes the ‘right to marry’ as a universal right. Demanding this right to extend to homosexual couples who are legal citizens of the state, have vested with fundamental rights and want to live with personal choice is neither too complicated nor unjust. Not allowing the LGBT to live with liberty and dignity within their choice of identity & community is just like saying ‘you are different and there is no one to marry you in this country; forget about affection & loyalty all the promises made to the person you love’.

Countless individuals who tends to marry in inter-caste, inter-religious and intra-gotra have faced violence, and even been brutally murdered by their own. This shows the effect on the freedom to choose one’s partner and to love by choice. In fact, the architect of the Indian Constitution,      Dr. B.R Ambedkar had pointed out decades ago, “As long as caste in India exists, Hindus will hardly intermarry or have any social intercourse with outsiders…”[4]

1.3 REASEARCH METHODOLOGY

The methodology of this research would be doctrinal and analytical, in reference with primary sources and various secondary sources like articles, journals and well known websites, magazines, newspaper. This paper discusses the severity of the issue not only on social grounds but on legal grounds of same-sex marriages in India

1.4 OBJECTIVE OF STUDY

  • To analyze status of equality in marriages
  • To trace the role of society and personals laws in India towards association marriage.
  • To examine the judicial approach towards same-sex marriages.
  • To do a study from Legal perspective.

CHAPTER-2

ROLE OF PERSONAL LAWS AND CONSTITUTIONAL CHALLENGES TO MARRIAGE EQUALITY

2.1 PERSONAL LAWS AND ITS IMPLICATIONS IN SAME-SEX MARRIAGES.

Family laws in India represent a far more composite category of laws and the mere recognition of same-sex marriage through a judicial challenge to specific provisions deeper into personal laws may only translate to limited gains for the community in need.

It cannot be viewed in terms of marriage rights only rather than it’s a pathway of the society to run on its own terms & conditions accordingly. It is a keeper of other issues such as succession, parenthood; economic dependency and protection from intimate partner violence become relevant in the context of the state regulation of the family crossing through the modern society. In India, marriage often becomes an entry point to such rights & sometimes liabilities, since the vision of marriage remains central to family law in the legal system.

Currently, statutory frameworks of the law are dealing with succession, parenthood and related matters operate in the male-female binary form of marriage and assume the heterosexual family as the normative standard to live the society. Even if specific provisions of marriage laws such as the Hindu Marriage Act were to be declared unconstitutional or were to be read to include same-sex marriages, provisions of various other statutory laws conferred in the law would continue to not include same-sex marriages thereby denying them civil rights.

For instance, provisions of the Hindu Succession Act, since it is premised on the patriarchal Hindu undivided family while laws regulating parenthood such as the Hindu Minority and Guardianship Act would only account for the hetero normative family in determining the guardianship of minors these are the few examples would exclude such kind of association.

If it is desired that same-sex couples wants to base their marriage rights in secular legislation’s for recognition such as the Special Marriage Act aspects of religion-based personal laws would continue to be relevant. The reason is represented by the secular and religion-based personal law regimes in India remain highly interconnected with aspects of personal law continuing to apply even if individuals opt for a secular law. It is obtained that two Hindus marrying under the Special Marriage Act would continue to be governed by provisions of the Hindu Succession Act in matters of succession and other similar religion-based personal laws in matters of parenthood and so on.

Moreover, many provisions of these legislation’s such as the process of solemnization of marriage, grounds for divorce, maintenance, and remedies such as restitution of conjugal rights represent, arguably outdated, heterosexual privileges that cannot be easily granted to same-sex association. Many of these frameworks may thus be ill-suited to LGBT families in India.

2.2 GOING BEYOND MARRIAGE

In order to completely secure civil rights of LGBT community, the angle must shift beyond marriage to the other aspects of state regulations of the family structure which arises after marriage such as succession, parenthood, economic dependency and protection from marital violence. This needs to be reflected in reform strategies when discussed on family law at the community level as well at litigation. The sole purpose of legalizing marriage should not be limited to only marriage but also to other intrinsic aspects of family law which are of utmost importance for legal inclusion to be effective. To make marriage equality work in practice the reach should be going beyond marriage equality.

2.3 CONSTITUTIONAL CHALLENGES TO MARRIAGE EQUALITY

The marriage in legal prospect is solemnized between ‘one man and one woman’ which when crosses the prism of constitutional morality in itself discriminates the person on the basis of their sexual orientation. This can be challenged on constitutional grounds as it violates the Golden Triangle of constitution Article 14, 19 and 21 on arbitrary grounds. Article-15 is also being challenged with the same.

According to Article 14, classification must satisfy two conditions i.e. ‘classification must be supported intelligible differentia which distinguishes persons or things that are grouped together from other overlooked of the group, and second, that the differential must have a rational nexus to the thing sought to be achieved by the statue in question’. Therefore, there is no rational object in discriminating between same and opposite-sex marriage, such discrimination fails Article 14 and 15 simultaneously.[5]

Article states that -The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

– The Supreme Court in the case of National Legal Services Authority (NALSA) v. Union of India &Ors[6], decided for the recognition of the transgender as a third gender apart from male and female and also to provide necessary benefits to the socially and economically backward class. After recognition of the member of a transgender community as a third gender, the non-recognition of their marriage can be seen as discrimination on the grounds of sex and is a violation of Article 15(1)[7].

It was held in Justice K.S Puttuswamy (Retd.) & Anr. Vs Union of India[8] a nine-judge bench of the Supreme Court of India held unanimously that the right to privacy was a constitutionally protected right in India, as well as being incidental to other freedoms guaranteed by the Indian Constitution, including autonomy over intimate and personal choices Under Article 21.

In the Navtej Johar[9] case, CJI Deepak Mishra held, “An individual in exercise of his choice may feel that he/she should be left alone but no one, and we mean, no one, should impose solitude on him/her”. In India the only acceptable relation is a marriage between a male and a female otherwise the person is anti-social, therefore this will make couple separated and they will live life in shell as they are not allowed to live with a person they are in love with and constant fear of exposure will finally end up by living in solitude. Hence, this is absolute contrary to Right to live life with dignity under Article 21.

The Right to expression of one’s self-identified gender is an important component of Freedom of Expression under Article 19(1) (a). In the Navtej Johar case, C.J.I. Deepak Mishra concluded “Any discrimination on the basis of one’s sexual orientation would entail a violation of the fundamental right of freedom of expression”. Further, he held, “When biological expression, be it an orientation or optional expression of choice, is faced with impediment, albeit through any imposition of law, the individual’s natural and constitutional right is dented” with respect to dignity under Article 21.

CHAPTER-3

COMPARATIVE ANALYSIS INDIA AND OTHER COUNTRIES

  • INDIA

On 6th September 2018, in which the Supreme Court of India decriminalizing homosexuality by declaring Section-377 of India Penal Code unconstitutional. The Same-Sex couples in India faces moral and legal difficulties in India. Sexual activity between the same genders is legal but they cannot marry or obtain any civil partnership. In the recent updates in the legal status of homosexual couples in Abhjit Iyer Mitra Vs Union of India[10]  PIL was filed in the Apex court for seeking the declaration to legalize the same-sex marriage in the Hindu Marriage Act (HMA) and in Special Marriage Act. This PIL was opposed by the parliament by stating that marriage between same-sex couples in our society as well as in our system was “not permissible” as it is not recognized by “our laws, legal system, society and our values” .

  • GERMANY

Until June 11, 1994, it was still considered a crime in Germany after decriminalization, in 2017, Germany became the 15th European country to allow same sex couples to get married legally. Compared to many other European countries Germany was quite late to give full marital rights to homosexual couples.

  • UNITED KINGDOM

The first holders in LGBT rights in the UK have been England and Wales who legalised homosexuality in 1967 (Sexual Offences Act 1967).

In Scotland homosexual acts were decriminalized by the Criminal Justice Scotland Act 1980, which took effect on February 1 1981. Which was followed by Northern Ireland, it was legalised in 1982.

  • UNITED STATES OF AMERICA

The US Supreme Court on June 26, 2015, struck down states’ same-sex marriage bans, bringing marriage equality to the entire US. Back then in 2004, same-sex marriage was legal in one state, but over the next 11 years, marriage equality spread across the nation — to 50 states and Washington, DC — through a mix of court decisions, ballot initiatives, and laws pushed through state legislatures.

It was beneficial to LGBT groups, the generational gap and growth of support across the board it reinforced the belief that same-sex marriage rights at all levels of government were inevitable, especially as younger generations became increasingly involved in politics. And as the Supreme Court considered whether to legalize same-sex marriage across the US, the growing support showed that the country was ready for a ruling in favor of marriage equality. This shows the pattern to the acceptance of the changes in the people morally, legally and socially there is always a first step and then final step.

  • HOMOSEXUALITY IN ASIA

Here the scenario was not parallel rather opposite through conservative states; rights in Asia have a long way to go catch up with Europe and America. We can take an example, in number of Asian conservative states where being is legally recognized but it’s still a taboo in society for friends and for their own families. They end up just leading closet lives by living in solitude living life by not their choice rather than bearing responsibilities. However hope holds us by the expectations of upcoming generation they have this right mind to see for practical solution and methods to live in a society rather then still be a slave to orthodoxy in every sense.

  • TAIWAN

The first nation till date to pass equal marriage laws, In May 2019 it broke all the records to be the only place to pass the same in the continent. Taiwan’s progressive approach is a smash down to other suppressors and it is a clear leader in the list. From gays being allowed to openly serve in military to right to change legal gender introduced in 2008 and also conversion therapy was outlawed in 2018.

  • JAPAN

The state got rid of its anti-gay laws in 1880. Other progressive laws include the right to change your legal gender (introduced in 2003) and gays allowed to openly serve in the Japanese military. Yet another role model for the other states.

With regards to anti-discrimination laws, there are none nationwide. However, Tokyo and Ibaraki each have their own anti-discrimination laws in place to safeguard the rights. In relation to gay marriage, it is not legal in Japan, although some parts of the country allows LGBT couples to register a “Partnership Certificate”, which gives limited rights to aid with hospital visits and renting apartments.

CHAPTER-4

CONCLUSION

The conclusion is based on the above mentioned discussion. The question is whether same-sex marriage should be legalized or not? This debate has come from long road of hurdles from religious, ethical to political. This paper is in favor of legalizing the marital status of same-sex marriage couples. Homosexuality is a choice based on one’s individuals desire no one can eliminate the feeling of affection towards any gender. It is just a way of showing a way to get sexual happiness which is equally important. Apart from blind prejudice there is absolutely no reason to oppose this by preventing two homo individuals according to their will want to have a legal civil ceremony enjoy their happiness and also to withhold them with their rights and securities which heterosexual couples enjoy. Marriage is a sacrament in our society which is a sign of commitment and love. If two hetero individuals want to show that commitment, how does that destroy or damage the ideals of marriage. We are currently living in the age which respects the individual’s right to choose. India should be on its policy to be the land of the free; in our society people have branded homosexuals as queer. Homosexuality is not against any society or a community rather then it is a community which deserves equal recognition and respect from the state and society.

This issue is quite vast and complex what should be the right approach to deal with same-sex marriages? As on the complexity of the issue the desirability and feasibility of such an approach remain ascertained.

In any event there is a growing conviction in the system that our present method of criminalizing the same-sex marriages neither helps the homosexuals in fact their fundamental rights are compromised and nor it protects the society in general. We thus need to legitimate same-sex marriages in order to move forward in the direction of assuring natural human rights.

SOURCES

WEBLIOGRAPHY

ARTICLES/ BOOKS

  • Marriage Equality: Global Comparisons By: CFR Staff
  • For marriage ‘equality’ that is truly equal: By Dhamini Ratnam
  • Same sex marriages in India under personal laws: By Diganth Raj Sehgal
  • Same Sex Marriage: Need of the Era: By sharma
  • Book: Abhijit Naskar, Either Civilized or Phobic: A Treatise on Homosexuality

CASES

  • Naz Foundation vs Government Of Nct Of Delhi And … on 2 July, 2009
  • National Legal Ser.Auth vs Union of India & Ors on 15 April, 2014
  • Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018
  • Navtej Singh Johar vs Union Of India Ministry Of Law And … on 6 September, 2018
  • Abhjit Iyer Mitra Vs Union of India

[1] Book: Abhijit Naskar, Either Civilized or Phobic: A Treatise on Homosexuality

[2] Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine

[3] Naz Foundation vs Government Of Nct Of Delhi And … on 2 July, 2009

[4] Article: For marriage ‘equality’ that is truly equal

[5] http://probono-india.in/blog-detail.php?id=189

[6] National Legal Ser.Auth vs Union Of India & Ors on 15 April, 2014

[7] http://www.legalserviceindia.com/legal/article-2069-same-sex-marriage-need-of-the-era.html

[8] Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018

[9] Navtej Singh Johar vs Union Of India Ministry Of Law And … on 6 September, 2018

[10] Abhijit Iyer Mitra vs Union Of India on 4 November, 2020

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