Author- AKANCHA KAILASH BBA.LLB 9th Semester, Amity University Ranchi, Jharkhand
TASK- Legal Article on: Same Sex Marriage
Abstract
We cannot disagree that the foremost debatable topic in most of the countries, particularly in Asian nation is that of a similar sex marriage. There has continuously been fuss regarding the same, round the nation as there are some people, who are in support and there are some those who oppose the same sex marriage on the grounds of non-secular and social acceptability. Currently it all started once the section 377 was decriminalized and was command unconstitutional by the Supreme court of India.
Before this, the those who were accustomed engage within the carnal intercourse, at their own will, against the order of nature were punished, in simpler words, the folks that entered sexuality, with the person of their own gender, willingly, were punished. So clearly, the Supreme court of India decriminalized the above-mentioned section which talked only about sexuality with the same-sex and not marriage with the same-sex, and so this decision has led to varied petitions filed By groups and individuals posing for giving the marital rights to same sex couples because as having sexual activity with the same gender isn’t considered as an offence anymore, then why giving marital rights to the same-sex couple is a problem.
In today’ world, several countries have accepted the same-sex marriage, however this remains a sensitive issue in India, because of the assorted prolonged ancient and social notion of families. As, in India there is no uniform code that deals with marriage, most religious communities have their own personal laws managing the same, as that of Hindu Marriage Act, Parsi Marriage Act, etc., similarly, inter-religion marriages are dealt by The Special Marriage Act which of the country are dealt by The Foreign Marriage Act. And every one of the preceding acts promote heterosexual marriages and not same marriages.
And an equivalent is command by the court in numerous cases. So, briefly heterogenous marriages are not acceptable in Asian nation as per the present laws. However, there’s possibility, that laws will change, amendments are created in Favor of same sex marriages however once more the acceptance of the same among various social and non-secular belief is in question, because the bill can solely be passed with relation to same sex marriages once there is enough support.
Now as referred to above, numerous different countries have familiar same-sex marriage, now the query arises will India supply criminal popularity to marriages of the homogenous couples, which can be solemnized abroad.
To escape the ban on same sex marriage, the homogeneous couple of India tend to go abroad and solemnize their marriage in jurisdictions of the countries that allow homogenous marriages and India does not recognize such type of marriages neither legally nor socially. Our legal system provides that the marriage of people will be governed by their religion-based Acts and provisions.
The court further mentioned that the Special Marriage Act, deals with the inter caste or inter faith marriages, and was only enacted because have been no customs for the same, in answer this the petitioners said that they weren’t seeking relief from such grounds, but under laws like that of SMA and FMA, they mentioned that by not allowing the ladies to marry are hindering their rights like that of family insurance etc., and thus violates article 21 of the constitution.
Introduction
The word ‘LGBTQ’ refers to a diverse group of persons who do not fit into the heteronormative concept of gender and sex. Because there is no conclusive definition of the phrase, the acronym is frequently used with the ‘+’ symbol to indicate that the collective is not exhaustive. The phrase, however, refers to lesbian, gay, bisexual, transgender, and queer. It relates to both sexual orientation and gender. While gay, lesbian, and bisexual are sexual orientations, transgender refers to a gender who does not identify with the male-female binary. The term ‘queer’ is widely used to refer to the collective’s ‘queerness’. The phrase encompasses other categories such as intersex, asexual, and so on. It is a complex concept that necessitates a knowledge of gender and sexuality as facets of human existence. This group questions the heteronormative standard that has become the default, with the goal of finding their own identities within the gender and sexuality continuum. The LGBTQ community has made significant progress in terms of social acceptance around the world. In India, the struggle has been lengthy, with the judiciary stepping in to help the group. The Indian legal system, which was founded on English law, had legally repressed sexual minorities under Section 377 of the Indian Penal Code, which has since been repealed. Transgender people are in a better position because they are recognised as the third gender, but the legislation droughted for them has received a lot of criticism. Sexual minorities have faced systematic oppression and have been forced to live in anonymity. There is a clear lack of understanding, and discrimination can be seen in a variety of ways, including transgender people being excluded from social organisations and denied work or employment; same-sex couples having no guaranteed rights to marriage, reproduction, or adoption/maintenance, among other things. However, even after the decriminalisation, social rights remain denied, and one of them which is before the courts in India, is marriage rights of same-sex couples. This is the logical next step for the community to ensure a normal living, but the government’s constant opposition has made it incredibly difficult. Marriage is an important part of a person’s identity in political, legal, social, and economic terms. It is a legal institution that establishes the recognition of a relationship between two people under numerous personal laws. It is of enormous public importance since it encompasses many rights and duties such as property, legacy, and other linked advantages that arise from marriage. According to Article 16 of the Universal Declaration of Human Rights, the family constituted by a lawful marriage is the natural and essential social unit entitled to protection from both the state and society (UDHR 1948). A legal marriage is a contract between two people that must meet specific legally recognised standards.
Marriage is regarded as a holy sacrament (Samskara) and a lifelong partnership in Hinduism. “Kanyadan,” which means “gift of the daughter,” is a significant Vedic ritual and tradition. The concept of “Dharma,” or “duty,” governs the roles and obligations of couples. The Islamic community believes that marriage, also known as “Nikah”, is a social contract that emphasises consent and the Mehr/Dower provided by the groom. Within the context of marriage, Islamic teachings provide guidance for family life and duties. Meanwhile, within the Christian church, marriage is viewed as a holy union that is blessed by God through the act of exchanging rings and taking vows, which frequently occurs
The Special Marriage Act of 1954 allows for marriages between people of different religious beliefs, though they are not as common as marriages between heterosexual couples. The primary distinction between marriage and same-sex marriage is the eligibility criteria for those seeking to enter a marital union. This issue is of utmost significance for LGBTQ rights activists and supporters worldwide, and its relevance goes beyond the realm of law to include broader social and cultural perspectives towards the LGBTQ population.
THE INDIAN EXPERIENCE
India is fundamentally conservative. India is a secular nation that protects everyone is right to practise, preach, and propagate any religion of their choice. Being religious, many aspects of society and personal rules are based on faith. This contains aspects of same-sex relationships. An examination of the history of same-sex relationships paints an intriguing picture of a shift from an open, liberal culture to a conservative one. This was supported by legal sanctions imposed by the British in India under the Indian Penal Code, notably Section 377. This provision rendered such partnerships punishable by imprisonment and fines, establishing an environment of control and discrimination against same-sex couples. The ensuing decriminalisation process took decades before being handled in 2018 with the Navtej Johar case. Throughout history, there have been several references to same-sex relationships and transgender people in various Indian kingdoms. The concept of gender fluidity is reflected in Vedic times and Hindu scriptures, as well as art and architecture. Some of the most well-known examples include Valmiki’s Ramayana, which mentions Hanuman seeing rakshasa women kissing in Lanka3; the birth of King Bhagirathi; the temples of Khajuraho, Ellora caves in Maharashtra, and Sun Temple in Kornak; and Vatsyayana’s well-known text, Kama Sutra, which deals with sexuality, eroticism, and emotional fulfilment of life.
Khajuraho’s temples are a remarkable illustration of historical community tolerance. The Chandela dynasty built these temples between 950 and 1050 AD. The sculptures in the temples represent same-sex relationships, including an open depiction of uncovered men and women embracing each other erotically and fluidly. Similar photos can be seen in Kornak’s Sun Temple. The Ellora caves, which depict the life of Gautam Budha, the founder of Buddhism, also include paintings of men and women having same-sex intercourse. These different examples demonstrate the existence of a liberal culture that was judgement-free and publicly exhibited them in places as prominent and prestigious as a temple.
Baburam is the most well-known work in Islamic literature that discusses same-sex attraction. Sufi poets such as Sufi Saint Bulleh Shah and Sarmand Kashani, to name a few, have made similar references.8 With the establishment of the British Empire in India, societal and legal standards shifted towards a more Anglicised vision of society. Western ideas, particularly those shaped by the Church, were forced on the Indian system. The legal system in India was created by the British, and homosexuality became a criminal crime after Lord Macaulay droughted the Indian Penal Code.
This legal regulation coincided with the social infusion of moral right and wrong, as well as the perception of immoral behaviour. Morality, combined with religious interpretations of life after death, caused society to question such acts, effectively stripping them of civility and humanity. This outlook was ingrained in society and even after independence, the legal system retained the Indian Penal Code and with-it Section 377. The British, who introduced such a provision in the legal sphere, repealed the provision in their own nation in 1967 but in India, the struggle continued till 2018.
JUDICIAL REVIEW OF LGBTQ RIGHTS IN INDIA
A judicial review of LGBTQ rights in India finds that, while the legislative has been passive on the issue, the judiciary has been assertive in recent years. Specifically, throughout the last decade, the Supreme Court has issued numerous key decisions that have prepared the road for the acknowledgement of this marginalised group’s fundamental rights. The parliamentarians’ failure to solve this issue illustrates the Parliament’s conservative bent, which required a liberal judiciary. The following are some of the Supreme Court’s most famous decisions on the issue.
- Naz Foundation v Government of NCT Delhi
In this landmark case the Delhi High Court deemed Section 377 of the Indian Penal Code unconstitutional. The ruling, which was based on a Public Interest Litigation filed by the NGO, cleared the door for a legal review of British-era law. The Court found it a breach of Articles 14, 15, and 16 of the Indian Constitution (all rights centred on the notion of equality).
- NALSA v. Union of India
This case came in the aftermath of the criticised judgement in Suresh Kumar Koushal v. Union of India11. In Suresh Kumar, the Supreme Court re-criminalised Section 377, which was decriminalised in Naz Foundation. The National Legal Services Authority led the charge towards raising relevant questions in favour of the transgender community. This judgement declared transgender persons as the third gender. A comprehensive set of guidelines, protecting the rights and freedoms of the transgender community, was laid down in the judgement. After that, legislative developments followed to provide a clear statute that shall forward their rights. There were extensive debates and versions of law presented which culminated in 2019 with the Transgender Persons (Protection of Rights) Act, 2019. While the law is necessary and does have some positive aspects, it has a major issue, i.e., of administrative interference by requiring that each person would have to be recognized as ‘transgender’ based on a certificate of identity issued by a district magistrate. This is a major issue considering the sensitivity of the subject. Justice (Retd.) K. S. Puttaswamy v. Union of India Granting the right to privacy as a facet of Right to Life and Liberty, Article 21, this judgement held that privacy in an integral part of a human’s life and that it extends to all individuals, notwithstanding gender and sex.12 In the judgement, Justice Chandrachud observed that the LGBTQ community should be entitled the right to privacy, particularly autonomy and freedom from interference from the state. A special observation was made in context of the right to choose partners of one’s own choice, sexual freedom, and autonomy. Navtej Singh Johar v. Union of India13 This judgement decriminalised homosexuality in India by reading down the infamous Section 377. Striking down the section to the extent that it criminalised consensual intercourse between two consenting adults, the judgement held that the section violated Articles 14, 15, 16 and 19(1)(a) of the Constitution. The right to live with dignity, the freedom to autonomy and choice in personal life were recognised, drawing inspiration from the Puttaswamy judgement.
CONCLUSION
Because of India’s diverse religious traditions, religious considerations for same-sex marriages may be problematic. Anti-Discrimination Laws in our society are desperately needed to fully protect LGBTQ+ persons; even with marriage rights, more comprehensive anti-discrimination legislation is required.
Overall, the fate of same-sex marriage in India will be determined by a combination of public opinion, legislative action, and ongoing activities. Even if there remain barriers, there is hope that same-sex marriage will be recognised in the future as LGBTQ + rights become more widely accepted. Same-sex marriage faces a mixed future. Despite the possibility of legislative reform and growing acceptance, societal conservatism, and the lack of more comprehensive LGBTQ + rights continue to be barriers.
It is time to realise that there is a group among us who have a different sexual choice than heterosexuals, and that sexual preference is only one component of their lives. They are just like any other heterosexual human being. The focus should be on social involvement with the goal of inclusiveness. This should be normalised, and the concept of shame should be eliminated. There is no reason to be offended by one’s sexual partners; it is a matter of personal choosing. A clear legislation can be immensely useful not only in establishing a sense of uniformity in legal protection for social, economic, and cultural rights, but it will also provide a means of ensuring justice. A legislative legislation will empower them to question incidents of abuse, violence, and prejudice, giving them an important voice. Despite a recent setback, there are indications that same-sex marriage in India may advance in the future. Progress in social and legal reform is frequently gradual and takes time. Polls show that people are becoming more accepting of LGBTQ+ rights, and most of them support legalising same-sex couples.
As the activism continues, LGBTQ + campaigners are likely to strive for increased cultural acceptance and legal improvements. However, some impediments remain, such as conservative elements who believe the ruling party’s socially conservative principles will hamper the adoption of new laws.
