SAME SEX MARRIAGE

THIS ARTICLE WAS WRITTEN BY SAAKSHI S. RAWAT, A STUDENT OF BENNETT UNIVERSITY.

INTRODUCTION

Same Sex Marriage is marriage of same gender couples, it has been regulated through law, religion, and custom in many countries in world, the legal and social responses have ranged from celebration on the one hand to criminalization on the other. This topic has sparked clashes emotionally and politically amongst the people having different outlooks, the central question remains is whether homosexuals should be permitted to enter into a legally sanctioned marriage, with all the civic and social benefits, just as heterosexual couples can. The benefits including property rights, social status, inheritance rights, adoption, hospital visitation rights, tax breaks and pension rights. Some countries have granted official legitimacy to same sex relationships without giving them the full marriage rights that heterosexual have.

There are arguments from both sides, the arguments against the same sex marriage concentrate on four themes: (1) Same Sex Marriage is contrary to custom, tradition, or nature; (2) It’s a distortion of true meaning or essence of marriage; (3) Wrong because it’s homosexuality; (4) the consequences would be harmful as they would result in uneven family distribution and no children being born.

Proponents generally argue: (1) Permitting same sex marriage is a matter of justice, which demands equal treatment and equal opportunity for all; and (2) allowing it would be beneficial both to homosexuals and society as a whole. (3) Marriage is not about children and they can even adopt kids if they want.

HISTORY OF SAME SEX RELATIONSHIPS

Ancient texts like Rig-Veda which dates back around 1500 BC and sculptures depict sexual acts between women as revelations of a feminine world where sexuality was based on pleasure and fertility. The description of homosexual acts in the Kamasutra, the Harems of young boys kept by Muslim Nawabs and Hindu Aristocrats, male homosexuality in the Medieval Muslim history, evidences of sodomy in the Tantric rituals are some historical evidences of same-sex relationships.

Epics like the Ramayana, Mahabharata and even temples of Khajuraho give enough peep into the ancient times of India to establish that homosexuality was in practice. During the great churning of the milky ocean, according to Matsya Purana, Lord Vishnu took the form of a beautiful woman, Mohini, to trick the demons so that the gods could drink all the amrit. Meanwhile, Lord Shiva saw Vishnu as Mohini and instantly fell for him. Their union led to the birth of a child – Lord Ayyappa.

Later, Manu smriti shows references to punishments like loss of caste, heavy monetary fines and strokes of the whip for gay and lesbian behaviour. In the case of married women, it is mentioned that ‘luring of maids’ is to be punished by shaving the women bald, cutting off two fingers and then parading her on a donkey. The famous law code, Manusmriti provides for punishment to homosexual men and women. Manusmriti says that if a girl has sex with another girl, she is liable for a fine of two hundred coins and ten whiplashes. But if lesbian sex is performed by a mature woman on a girl, her head should be shaved or two of her fingers cut off as punishment.

In the case of males, Manusmriti says that sexual union between two men brings loss of caste. If a man has sex with non-human females or with another man or indulges in anal or oral sex with men, he is liable for punishment as per the “Painful Heating Vow”.  Both sexual systems coexisted, despite fluctuations in relative repression and freedom, until British Colonialism when the destruction of images of homosexual expression and sexual expression in general became more systematic and blatant.

SAME SEX MARRIAGE AROUND THE WORLD

1. Countries which have legalized

More than two dozen countries had legalized same-sex marriage globally as of 2018, and another nineteen countries recognized civil unions and common law marriages; locating only one country within Asia. Europe is the only geographical region in which no country criminalizes consensual same-sex sexual conduct, while twelve countries in Asia and thirty-three in Africa continue to hold discriminatory laws that are considered a violation of human rights in other countries. In Japan and Taiwan, registration of same-sex partnership is possible at the municipal level. The Taiwanese constitutional court recognized marriage rights for homosexual couples in May 2017, mandating that the civil law be amended accordingly within two years.

A majority of ASEAN countries consider same-sex sexual conduct to be legal. Islam plays a significant role in Malaysia, Brunei, and Indonesia, where same-sex sexual behaviours are framed as a moral problem. According to one local LGBTQ activist describing the current penalty against male homo-sexuality, “Singapore is a case study of what happens when you have economic success without human rights” a situation in some ways similar to Hong Kong’s. As China and Laos attempt to copy Singapore’s laws and regulations against the queer community, the LGBTQ populations in this subregion may fall into increasingly disadvantageous social and economic positions.  In September 2015 Thailand enacted a ground breaking Gender Equality Law intended to protect LGBTQ individuals from gender-based discrimination.

2. Marriage and Family

The belief that same sex couples are not fit to be parents has no empirical foundation. Lesbians’ romantic and sexual relationships with other women have not been found to detract from their ability to care for their children. Lesbian couples who are parenting together have often found to divide household and family labour relatively evenly and to report satisfaction with their couple relationships. Likewise, research on gay fathers, suggests that they are also likely to divide the work involve in child care evenly and that they are happy with their couple relationships.

A recent study found that, very few lesbian and gay parents reported any use of physical punishment as a disciplinary technique; instead, they were likely to report use of positive techniques such as reasoning. Being denied the right to marry reinforces the stigma associated with a minority sexual identity, and can particularly undermine the healthy development of a well-adjusted emotional and social attachment style among adolescents and young adults.

LAWS IN INDIA

1. Article 21 of the Indian Constitution

It violates right to liberty guaranteed under Article 21 of the Indian Constitution which covers private consensual sexual relations. The fundamental right to liberty prohibits the state from interfering with the private personal activities of the individual. The concept of privacy is so broad that no comprehensive and all-encompassing definition of the term can be given. In the case National Coalition for Gay and Lesbian equality V. Ministry of Justice, the South African court held that privacy recognizes that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community.

2. Section 377 of Indian Penal Code

The Indian Penal Code 1860 is a monumental contribution to the Indian legal system by the British rulers. Section 377 of the above-mentioned statute deals with unnatural offences which states as follows: “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”

Unnatural offences cover all homosexuality offences as well as the non-consensual penile non vaginal sex and penile vaginal sex involving minors. Questions have been raised constantly on the constitutionality of the above-mentioned section. The most recent one was put up in the case of Navtej Singh Johar v. Union of India. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non- vaginal sex involving minors. A person below 18 would be presumed not to be able to consent to asexual act. In the landmark case of Navtej Singh Johar v. Union of India wherein the 5-judge bench of supreme court pronounced that:

“Criminalization of sexual acts between the consented adults violate their right to equality guaranteed by the Indian constitution Criminalizing carnal intercourse is arbitrary and unconstitutional. LGBT are also entitled to all rights and liberties. This includes the right to partner and to fulfil his/her sexual intimacies in the way he/she likes and should never be discriminated on any grounds.”

LEGALISATION OF SAME SEX MARRIAGE

Why it should be legalized 

1. Legalizing gay marriage also mitigates the discrimination and stigma on homosexuals because making the union or marriage legal gives gay couples the affirmation that they are accepted not only by society but also the state. Marriage is an internationally recognized human right for all people.
2. Marriage is a basic civil right and same-sex marriage is a civil right, right along with freedom from employment discrimination, equal pay for women, and fair sentencing for minority criminals.
3. One of the most advantages of legalizing marriage is the protection it gives the couple when it comes to health care, finances and taxes. If a partner dies, the surviving lover does not have the right to the property under the name of the deceased even if both of them have paid for the property.
4. With legalization, gay couples can now adopt children just as straight couples can. They can even have children of their own through in vitro fertilization or by getting surrogate mothers or sperm donors.
5. One of the major benefits of same sex marriage is that it reduces violence towards the LGBTQ community and the children of such couples are also raised without facing stigma from society.

CONCLUSION

In 21st century, state of mind of the overall public ought to be changed. The underlying advance is sex training in schools and at homes. A kid must feel open to discuss their choices related sexual preferences with their people or instructors. It is basic that teachers understand their student’s situation and guide them as necessities be. Our media and film fellowship are required to be more meticulous while depicting such relationships in their shows and motion pictures independently. They can accept a basic part in offering, learning and scattering certified information about LGBTQ and their sexual choices with the objective that society gets a real photograph of their situation and conditions. Rules for LGBTQ should be made to protect them, many times during harassment people are forced to do sexual activities against their choice, there are no rules or regulations to protect them in such cases due to lack of laws and amendments.

CASE STUDIES

1. Suresh Koushal v. Naz Foundation, (2014) 1 SCC 1
2. Naz foundations Vs Govt. of NCT Delhi & ors.
3. Navtej Singh Johar Vs Union of India, W.P. (Crl.) No. 76 of 2016
4. Tendolkar and Ors. AIR 1958 SC 538
5. Lawrence vs Texas, 539 U.S. 558 (2013)

BIBLIOGRAPHY

1. The Constitution of India, 1950
2. Indian Penal Code, 1860
3. Same-Sex Marriage: The Social and Psychological Implications of Policy and Debates by Adam W. Fingerhut, Ellen D. B. Riggle and Sharon Scales Rostosky
4. Gay and Lesbian Rights in Confucian Asia: The Cases of Hong Kong, Singapore, and Taiwan, by John Cheo
5. Doing Ethics moral reasoning and contemporary issues by Lewis Vaughan, fourth edition, chapter 14.
6. Peter A. Jackson and Gerard Sullivan eds, Gay and Lesbian Asia: Culture, Identity, Community (New York: Harrington Park Press, 2001) or Fran Martin, Peter A. Jackson, Mark Mc Lelland, and Audrey Yue eds. Asia Pacific Queer: Rethinking Genders and Sexualities (Illinois: University of Illinois Press, 2008