LEGAL AND ETHICAL ASPECTS OF SAME-SEX MARRIAGES AND COHABITATION

THIS ARTICLE WAS WRITTEN BY AYUSHI PRIYADARSHINI A STUDENT OF SYMBIOSIS LAW SCHOOL, PUNE

INTRODUCTION

On the fateful day of 11 December, 2013, India re-joined the group of countries which discriminate the LGBT community, when the Supreme Court in the Kaushal case upheld the constitutional validity of Art. 377 and thereby criminalizing ‘carnal intercourse against the order of nature’. This abysmally overruled the progressive decision of the Delhi High Court in the Naz Foundation case.

“Are right and wrong convertible terms, dependent upon popular opinion?” – William Garrison

Who in this world has defined the notions of right and wrong, and normal and abnormal? Let’s come to this: is it even possible to define them, per se? The human race may lay down the requisites under which their acts fall under the social purview of ‘right or wrong’, but it is realistically unmanageable to describe a human act as subscribing to the normal standards. The basic reasoning behind this is – if a Man can commit an act, it automatically becomes normal for the entire race, for it is simply physically doable. Then comes the question of Ethics, essentially the conventional distinctions of the committed act as being morally right or wrong, and how it affects the canons of the race as a whole.

In this contemporary world, where personal liberty has taken a centrestage in securing fundamental civil rights, there appears a hypocrisy when people refuse to accept certain people or their acts which can be plainly termed as deviant. Why does one even care what the other person, who may be one’s neighbor, colleague or an acquaintance, is up to, until and unless that deed involves him or is detrimental to someone? Live and let live. Every person should have a right to decide what path he wishes to follow, what he wants to do with life, who he wants to spend his life with or how he desires to implement that freedom of choice.

I personally believe that any act humanly possible, and which does not harm or in any way violates another fellow man’s right, is both ‘morally ethical’ and ‘socially normal’. With this foundation in mind, this project has been aimed at gaining a socially positive outlook towards and legal recognition of homosexuality which is both the understandable cause and consequence of same-sex marriage, and cohabitation that begs to differ from the institution of marriage. I further believe that liberal legislation on the part of the Judiciary is necessary to get rid of the conservative and revivalist standards conforming to traditions, culture and religion, and inculcating the reformist ideas so as to achieve the perfect equilibrium among the mankind.

LEGAL PROVISIONS AND PRECEDENTS

1. Cohabitation: Though legal, there is no specific law on the subject of live-in relationships in India, no legislation to define the rights and obligations of the partners, or the status of children born out of the wedlock. This has made the courts come forward and clarify the concept of cohabitation.

Protection of Women from Domestic Violence Act, 2005 recognises relationships in the “nature of marriage” and thus protects female partners from domestic violence.[1] The Supreme Court in the case of D. Velusamy vs. D. Patchaiammal held that, a relationship in the nature of marriage under the 2005 Act must fulfil the following criteria:

1. The partners must hold themselves to the society as being akin to spouses
2. They must be of legal age to marry, or otherwise be qualified to enter into a legal marriage
3. They must have voluntarily cohabited for a significant period of time, in addition to ‘sharing household’ as defined in Section 2(s) of the Act.

The Supreme Court of India first recognised the concept of live-in relationship as a valid marriage in the case of Badri Prasad vs. Dy. Director of Consolidation, wherein a fifty year old arrangement was presumed to be legal. It was then decided in the case of Payal Katara vs. Superintendent Nari Niketan & Ors that such a lifestyle is not illegal in the eyes of law and cannot be construed as an offence, though “they may be immoral for the Indian society”. In the landmark judgment by the Supreme Court bench of Justices MY Eqbal and Amitava Roy in April 2015 ruled that couples in live-in relationships are to be presumed legally married, thus reducing the social stigma. In their words, “live-in relations are neither a crime nor a sin”. The Supreme Court further held in S. Khushboo vs. Kanniammal & Anr that living together is a right to life, under the direct purview of Art. 21 of the Constitution.

1. Same-Sex Marriage: 377 of the Indian Penal Code was upheld in what turned out to be a black day for human rights in India, when the Supreme Court overruled the Delhi High Court judgment of 2009 and criminalized homosexuality in Suresh Kumar Kaushal vs. Naz Foundation.

Art. 377 IPC reads ‘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 term which may extend to ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. Consent has been regarded as no defense to such an offence.

This makes sexual intercourse between gays, lesbians, bisexual and transgender a punishable offence. They are regarded as outlaws, and are not accepted as a part of the society. The apex court dismissed the plea of pardon that this judgment violates the fundamental rights under Articles 14, 15 and 21, solely on the basis that such a liaison is against nature and God’s architecture or scheme of intention.

However, I may bring into focus a major distinction: ‘same-sex marriage’ may not be prosecuted, it is the consummation of such an ‘unnatural relationship’ that is a criminal offence. The Indian Judiciary has failed to simplify the oppressive colonial laws, lest do away with them. In December 2000, the Netherlands became the first country to legalize same-sex marriage, with rights to adopt children and divorce. The novel revised civil marriage statute now reads, a marriage can be contracted by two people of different or the same sex.

CRITICAL APPRECIATION AND CONCLUSION

The foundation of cohabitation and same-sex marriage lies in individual freedom to choose. On one hand when the founders of the Indian Constitution guaranteed fundamental rights of right to equality (Art. 14), right to no discrimination solely on the basis of sex or sexual orientation (Art. 15), and right to personal liberty (Art. 21) to each citizen, the populace still has condescending eyes upon people who tend to defy social norms. To face the harsh reality, even a rapist in this world is not so much ostracized even after committing a ghastly crime than the members of the LGBT community are disdained. Is it even rational? Clearly not. The time is ripe for the legislation for securing the rights of every individual, for love is not a crime, nor is its form of expression.

The Judiciary has to come out of its closet and ensure that each and every individual lives his or her life the way they wish to, without fearing the consequences. Living in the fear of being persecuted limits a person’s right to liberty. Social recognition will only begin after the laws of the land take a staunch stand on providing legal aid to people of all the palates.

[1] Domestic Violence Act, 2005, Sections 2(a), 12 read with 18, 19, 20, 21, 22