Author: AAROHI JAIN , RENASSIANCE Law College
ABSTRACT
Homosexuality in India has always been a complex historical, cultural, and legal trajectory, shaped by ancient traditions, colonial legacies, and modern socio-political movements. Ancient Indian texts, such as the Kama Sutra and Hindu scriptures, portray same-sex relationships with subtlety, suggesting a degree of acceptance in pre-colonial society. However, British colonial rule introduced Section 377 of the Indian Penal Code in 1861, criminalising homosexual acts. Post-independence, this law persisted, fostering discrimination and marginalisation of the LGBTQ+ community. With time, the 21st century marked significant shifts: the decriminalisation of homosexuality in 2018 by the Supreme Court in *Navtej Singh Johar v. Union of India* overturned Section 377, affirming the rights to equality and privacy. Despite legal progress, societal attitudes remain mixed, with urban areas showing growing acceptance through pride parades and activism, while rural regions often retain conservative views. Challenges like family rejection, workplace discrimination, and lack of comprehensive legal protections persist. This paper describes the interplay of history, law, and culture in shaping the evolving landscape of homosexuality in India, highlighting both progress and ongoing struggles for full acceptance and equality. Social aspect of marriage and adoption.
INTRODUCTION
Same-sex marriage is the union between two individuals of the same gender. Indian law does not recognise same-sex marriage, and there are ongoing efforts and discussions aimed at its recognition and legalisation. Currently, the LGBTQ community actively questions the right to marry, as delays in the decision violate their right to equality and freedom to enter into a union. This will not only provide fundamental rights to the community but also signal the long-awaited acceptance of their relationships by society; it will also protect those relationships. This article explores the legal complexities surrounding same-sex marriage, as it raises questions regarding various laws such as BNSS and BNS. By examining the relevant case law and proposing potential reforms, this article aims to shed light on the social and legal aspects of same-gender marriage.
DISCRIMINATION ON THE BASIS OF NATURE OF MARRIAGE
The Indian law developed from crimializing same sex relation with the british and European influence to decriminalizing with the landmark judgement of Navtej Singh v/s union of India. But whole section was not scrapped off only a part of section which allows consent sexual relationship of two people of same sex was decriminalise. The Chapter XVI of IPC section 377 read as follow
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.
- But the legislature still violates the fundamental rights of citizens as right to marriage to two people of same sex is still void and unconstitutional in constitution of India. The serious of petition has been filled in different high courts questioning the inclusion of marital rights to LGBTQ + couple, from various family law as Hindu marriage act to foreign marriage act (1969). These law define marriage as a institution between a man and a women. The special marriage act (1959) does not completely discriminatory in terminology as it state the marriage between one bride and groom . The institution of marriage provide rights and privileges to the married coupled and homosexual couple denied the same rights and privileges. Marriage furnisd the right to maintenance. right to adoption, right to inheritance and succession rights. The legally wedded couple can one a joint bank account, ability to named each other nominee in insurance policy but these privileges are not provide to homosexual couple
VIOLATION OF FUNDAMENTAL RIGHTS AND DPSP
The Non recognition of homosexual couple violates the fundamental rights and natural rights of citizens and these are reside by various Jugdements.
Article 21 – The non- recognition of marriage of homosexual couple violates the right to marriage of a person of own’s choice which is guaranteed in the case common cause v/s union of India (2018). The right to dignity is another right which suffer due to non – recognition of marriage and this is also s in the case of K Puttuswamy and Navtej Singh Johar. The non recognition of same sex marriage also violates the right to sexual intimacy of homosexual couple which was stated in the case Madhubala v/s state of Uttarkhand (2020).It is against the institution of marriage which was affirmed in the case johep Singh v/s union of India was also affected.
Article 14 & 15 – The non – recognition of homosexual marriage violated the right to equality to choose partner as others and importance of equality is already affirmed in landmark case Shahraybano begum v/s Union of India. the discrimination on the basis of gender and sex, which is forbidden under article 15 (1), was also highlighted when non heterosexual couples are denied to marry.
Article 25 – Freedom of conscience and practice of religion, which ensures the religious right is violate when the non – heterosexual couple’s right to conscience is violated, as this right is not limited in nature, it is absolute.
Article 38, 39 (a) and 44 – The directive principles of state policy are the guidelines provided to the state for the future. The article 38 guide states to remove inequality in statute, facilities and opportunities to its citizens, article 39 (a) constitution requires to treat all its citizens equally, whereas article 44 encourages the state to enact the standard civil law.
CASE LAWS
1. NALSA vs. the UNION OF STATES – This was a landmark judgement by the Supreme Court that recognised the third gender and affirmed their constitutional rights, including the rights to self–identify. The court held that transgender individuals are entitled to protection under the Constitution of India.
2. SHAKTI VAHINI VS THE UNION OF INDIA – This judgement recognised the right to choose the partner as a fundamental right of every citizen of India.
3. MADUBALA VS STATE OF UTTARKHAND – The Uttarakhand High Court provided an important comment on the freedom of adult homosexual couple to select and live with each other without being subjected to social or parental pressure.
CONCULSION
Although homosexuality was decriminalised by the verdict of the Supreme Court in 2018, other liberty and civil liberties, such as marriages, adoption and insurance, are still unavailable for gay and lesbian couples. Even after the year of discrimination against homosexuality in India, India’s government response to recognition remains unchanged. It’s past time to acknowledge that same sex couples have the same constitutional right to marry, choose a partner like everyone else.
FAQS
1. Can a homosexual couple have any right or privileges on property or succession?
The same sex couple does not enjoy any form of property rights, as couples are not attached to any form of legal relation and are not considered a normal couple.
2. Does the whole article 377 get decriminalised?
Only half of Article 377 was decriminalised which allow homosexual couples to enter into sexual relation but the other part of the law continued in effect.
