Author: Somala Viplava, Sri Padmavathi Mahila Vishwavidyalayam
To the Point
Same Sex Marriage is not legalised in India.This question was leaved to the parliament by the Supreme Court to legalise it or not.Same Sex Marriage is legalised in more than 30 countries over the world including the countries like Europe and America.Same marriage is very closely related to homosexuality.
Use of Legal Jargon
some key provisions and government schemes related to same-sex marriage :
Constitutional Provisions
* Article 14 : This article promotes the equality which includes homosexual/same-sex couples in India. This also has been interpreted for the protection of the rights of LGBTQ+ individuals, including those who are in same-sex relationships.
* Article 15 : It Prevents discrimination on grounds of religion, race, caste, sex, or place of birth. The Supreme Court has ruled that sexual relationship of same sex are protected and removed gender discrimination under this article.
* Article 19 : It gives freedom to speech and express their views freely . It has been used for the rights of same-sex couples to marry and living together.
* Article 21 : It gives right to protection of life and personal liberty. The Supreme Court has directed that this article applies to same-sex couples too, giving them protection for their lives and personal liberty.
Other Laws
* Special Marriage Act, 1954 (SMA) : It gives rights to civil marriages in India or Indian nationals who are there in outside the India. Even Some courts also have been petitioned to interpret this act to include same-sex marriages in this act.
* Protection of Women from Domestic Violence Act, 2005 : This Act gives protection to women in live-in relationships and it also includes those in same-sex relationships.
* Criminal Procedure Code, 1973 : It includes women in live-in relationships which also include same sex relationship for a “sensible period” for the purpose of alimony and maintenance.
Government Schemes and Initiatives
* Ministry of Finance clarification : This Scheme allows the persons who are in same-sex live-in relationships to open joint bank accounts and name their partners as beneficiaries in case of death for claiming of these benefits.
* Department of Food and Public Distribution advisory : It is a department under the government to give advises to the state governments for the identification of partners involving in same-sex relationships as members of the same family for ration card purposes to gain benefits given by the government.
The Proof
The proof related to same-sex marriages includes various provisions like:
Legal Provisions
– Court judgments :In Landmark cases like Supriyo v. Union of India (2023) and
Navtej Singh Johar v. Union of India (2018)
In these cases the court stated that the same-sex married couples are protected legally with limited extention by Indian Laws.
– Statutory provisions
The Statutes like the Special Marriage Act, 1954, and the Indian Penal Code (IPC) have been interpreted and questioned in courts to recognize same-sex marriages as like other sex marriages(marriage between two different sex).
Social Evidence
– Public opinion :
Through public opinion growing acceptance and gaining support for same-sex marriages in Indian society, mainly among young generations and urban people.
– LGBTQ+ activism : LGBTQ Organizations have played a important role in supporting for same-sex marriage rights and questioning discriminatory laws.
Personal Evidence
– *Testimonies*: Personal stories and testimonies from same-sex couples highlighting their experiences, struggles, and desires for legal recognition and social acceptance.
– *Relationship documentation*: Documents like joint bank accounts, shared property deeds, and other evidence of long-term commitment can demonstrate the stability and commitment of same-sex relationships.
Expert Evidence
– Sociological studies : Societal research on the benefits of same-sex marriage,which includes improved mental health, economic stability, and social cohesion.
– Psychological evaluations : By taking expert opinions regarding the well-being and relationship quality of same-sex couples.
International Evidence
– Global trends : Many countries in the world have legalized same-sex marriage,and recognized the rights and dignity of LGBTQ+ individuals.
– International human rights : International Organizations like the United Nations organisations have made the importance of recognizing and protecting the rights of LGBTQ+ individuals, including their right to marry and right to live-in-relationship
Abstract
Same Sex Marriage means the marriage betwen the two persons of same gender.Same Sex living relationship is very closely related to homosexuality.Same Sex Marriage is not legalised in India but provided limited rights to them for cohabitation.
Same Sex Marriage is neither a Fundamental Right nor a Constitutional Right under the Indian Constitution,but it’s a Statutory Right under the Indian Laws.It confers limited rights to them through the Statute made by the Parliament.
Eventhough, the marriage is dealt with various Statutory provisions,If they need it’s recognition as a Fundamental Right it has made only through judicial decisions,such decisions are binding on all other courts ( lower courts) in India under Article 141 of the Constitution of India.
In India marriages are registered under the various Acts such as Hindu Marriage Act,1955, Special Marriage Act,1954 and for Muslim marriages,the Muslim Personal Law Application Act,1937, under these laws they doesn’t recognised Same Sex Marriage as a Fundamental Right.
Even the Supreme Court also left the power to the Parliament to decide on this matter and made laws for them.
Case Laws
Cases related to Same-Sex Marriages in India
* Supriyo @ Supriya Chakraborty & Anr. v Union of India (2023 INSC 920) : In this landmark judgement, two same-sex couples questioned the Supreme Court to give recognition to the same-sex marriages in India. They argued that the Special Marriage Act, 1954, violates the rights of same-sex couples by denying their registration for matrimonial benefits. The Supreme Court directed that
– No Fundamental Right to Marry : In Indian Constitution there is no fundamental right to marry for them,and the Court didn’t recognize LGBTQIA+ persons’ right for marriage under the Special Marriage Act,1954.
– Civil Unions : A five judge bench,with 3:2 majority held that same-sex couples do not have the right to constitute as afamily, while Chief Justice of India D.Y. Chandrachud and Justice S.K. Kaul were disagreed and argued that queer couples have a right to constitute a family.
– Adoption : The Court directed that the unmarried non-heterosexual couples nothing but the married LGBTQ+ cannot have the right to adopt the child, with Chief Justice Chandrachud and Justice Kaul are disagreed.
Judges views
– Chief Justice D.Y. Chandrachud:
He Stated the importance of judicial review and argued that the Court acts within its powers to state whether the fundamental rights of queer persons are being violated or not. He also said that queer pair have a right to gather a civil associations.
– Justice S.R. Bhat:
He disagreed with the Chief Justice, and stated that the Court cannot made a similar legal regime for queer persons and that marriage existence depends on the laws made by the state.
– Justice S.K. Kaul:
He supported the words of Chief Justice which is the right to gather people to form civil associations and gives support to the structural nature of violation against LGBTQ+ people.
Precedent cases
* NALSA vs Union of India (2014) : In this case the court recognized other genders and made equal rights for homosexual persons.
* Navtej Singh Johar vs. Union of India (2018) : In this case the court guaranteed equal rights to homosexual persons as like others.
* Shafin Jahan v Asokan K.M (2018) and Shakti Vahini v Union of India (2018) : In these cases the court stated that inter-faith and inter-caste marriages, but they were differentiated in the Supriyo case as they include both biological genders of men and women.
Conclusion
As per my suggestion we can’t recognise Same Sex Marriage as a valid marriage in India. We strongly believe that our country as a socio-cultural society they cannot have enjoy married benefits as like opposite sex marriage couples.Because,they do not make family and they do not have capacity to produce children and children are considered as the assets of the country if they do not have capacity to produce children there is no development to the country.
So,we cannot recognise their marriage as legal,but we can made some strong laws to protect them in the society.Government recognising them for some government roles by including their gender as third gender by giving chance to allowing them for exams.
But some Jobs like military they are not allowing them.So,we need to made strict rules by making statutes for them,but we can’t recognise their marriage as a legal marriage.
FAQS
1. Is Same Sex Marriages have legal status in India?
A. No,Same Sex Marriages do not have legal status in India.
2. Is Same Sex Marriage is a Fundamental Right under the Indian Constitution?
A. No,it is not a Fundamental Right or a Constitutional Right under the Indian Constitution.
3. Is Same Sex Marriage is a Statutory Right?
A. Yes, Same Sex Marriage is a Statutory Right under the Indian Laws.
