Author: Vrinda, National Law School of India University, Bangalore
To the point
The demand for the legal recognition of same-sex marriage in India led to confrontation with its personal laws which are based on religion. These laws regulate the matters related to marriage, adoption, inheritance, and other family matters across the religious communities. These personal laws are found in Hindu, Muslim, Christian, and Parsi traditions which exclude the same-sex couples from legal protections. A significant question is whether such laws can be amended in a way to embrace same-sex unions or if a gender neutral and secular framework like the Uniform Civil Code is required. This article examines the legal and societal barriers to marriage equality while relying on the judicial decisions and constitutional provisions. The article proposes a balanced approach to revise personal law and providing an option of civil marriage.
Abstract
The legal recognition of same-sex marriage in India demonstrated a conflict between religion-based personal laws and the constitutional rights of equality and personal liberty. The personal law statutes, such as the Hindu Marriage Act 1955, Muslim personal law (Shariat) Application Act of 1937 and Indian Christian Marriage Act 1872, define marriage as a heterosexual union between a “man” and “woman”. The narrow definition leaves same-sex couples without any legal protection. This article discusses the possibility of reforming these personal laws or the need for a unified framework to address this exclusion. The landmark judgements like Navtej Singh Johar v Union of India (2018) support a dual approach that honours India’s cultural diversity while securing the inclusive rights. This analysis will further explore the legal ambiguities and practical implications of potential reforms that also align with the constitutional principles of India.
Use of Legal Jargon
The inclusion of same-sex marriage in the Indian legal system is a challenge to the conventional heteronormative foundation of Indian personal laws such as the Hindu Marriage Act, 1955 and the Indian Christian Marriage Act, 1872. These laws are based on the religious doctrine that has been followed for a long time. They defining marriage in gender specific terms, which leaves same-sex unions legally unrecognised. The constitutional articles like Article 14 (equality before the law), Article 15 (Prohibition of discrimination based on sex) and Article 21 (right to life and personal liberty) provide a robust framework to challenge its exclusion. However, India’s pluralistic legal system, which accommodates different religious practices, complicates the efforts for reform. The application of a Uniform Civil Code (Article 44) across the nation could standardise family laws, but also raises practical concerns regarding the cultural autonomy of diverse communities. This article will evaluate whether targeted amendments to the personal laws or a comprehensive secular framework is the better approach to extend marriage equality to same-sex couples.
The proof
The Indian personal laws that regulate marriage, divorce, guardianship, etc, are applied to specific religious communities. The Hindu Marriage Act 1955 defines marriage as a sacred bond between a man and woman, with rituals like “Saptapadi” which reinforce the traditional gender roles. Similarly, in Muslim personal law in Sharia, only heterosexual marriages are permitted. In both the Indian Christian Marriage Act 1872 and the Parsi Marriage and Divorce Act of 1936, marriages are restricted to heterosexual couples. These major personal laws exclude homosexual couples, which prevent them from accessing significant marital rights, including adoption, inheritance, joint property ownership and medical benefits.
The ruling given by the Supreme Court in Navtej Singh Johar v Union of India decriminalised homosexuality, which was punishable under section 377 of the Indian Penal Code (IPC). This judgement also acknowledges sexual orientation as an important aspect of identity and is protected under articles 14, 15 and 21 of the Indian constitution. However, the judgement given in Supriyo v Union of India rejects the legalisation of same-sex marriage while recognising the power of the legislature to take such decisions. This restraint by the judiciary highlights a major gap between the existing statutory framework and the constitutional protections. Due to this gap, there is a dire need for legislative reforms.
A Uniform Civil Code can standardise marriage laws across the diverse community and also ensure equal treatment for all. Nonetheless, religious groups will show resistance to these reforms and there are still concerns about the cultural erosion. Both of these situations are significant obstacles to the process of standardisation. In order to include same-sex marriage, the personal laws can be amended, and it would maintain India’s legal pluralism. But this step may face opposition from the traditionalists. International examples can be considered, such as secular marriage laws in Australia or the inclusive changes that happened in Germany.
These international models provide potential solutions to this issue. A hybrid kind of model, which includes the revision in the personal laws and also a civil marriage option, has the potential to resolve the conflicting interests.
The continuing absence of legal recognition to same-sex marriage couples has dire implications, which will impact rights such as adoption, inheritance, social benefits and medical benefits, etc. Additionally, regional diversity in India, with different levels of acceptance across different states, further complicates any efforts for reform. Therefore, there is a need to complement the legal changes with social initiatives which can help to foster inclusivity in society.
Case Laws
1. Navtej Singh Johar v Union of India (2018)
The Supreme Court in this case held parts of section 377 of the IPC invalid. It includes the unnatural offences, which include consensual same-sex relationships also. This part was decriminalised by the court. The court also further held that the sexual orientation of an individual is protected under articles 14, 15 and 21 of the Indian Constitution. This case establishes a constitutional foundation for a claim based on equality, like marital rights.
2. Supriyo v Union of India (2023)
The court in this case decided on the writ petitions filed by Supriyo and many other homosexual couples. The Supreme Court declined to give legal status to same-sex marriages. They emphasised that marriage laws is a legislative responsibility and they can’t interfere in this matter. They recognised the discrimination faced by the same-sex couples and also urged the Parliament to address the issue. They also asked the legislature to form a committee to look into the issues related to same-sex couples.
3. Shafin Jahan v Asokan K.M. (2018)
This case is known as the Hadiya case. In this case, the court upheld the right to choose one’s partner as an expansion of personal liberty under Article 21. The judgement emphasises the individuals’ autonomy. It supports the arguments for recognising same-sex unions as an extension of individual freedom.
4. Arun Kumar v Inspector General of Registration (2019)
This judgement is given by the Madras High Court. In this case the court recognises a marriage involving a transgender woman under the Hindu Marriage Act 1955. The court adopted a gender inclusive interpretation of the term “bride” in the act and also includes transgenders which identify themselves as women. This ruling shows that even the personal law can be interpreted to accommodate non-heteronormative relationships.
5. Goolrukh Gupta v Burjor Pardiwala (2017)
The Supreme Court in this decision deals with an interreligious marriage which was solemnised under the Parsi law. The court upheld the individual right to maintain one’s personal identity even after the marriage. Although it is not directly related to the same-sex marriage, it reinforces the broader idea of individual choice in matters related to marriage. This idea is relevant to the broader debate on equality for same-sex couples.
Global Perspectives
Marriage equality has been achieved through different approaches globally. Countries like Australia and Germany adopted secular marriage law which allows same-sex unions without changing any religious frameworks. The United Kingdom (UK) revised their marriage laws in 2013 to also include same-sex couples with provision for religious opt-outs for them. The example of South Africa is also relevant here. It’s Civil Union’s Act allows the queer couples to choose between both the civil and the religious marriages. This method helps in striking a balance between inclusivity and diversity. In contrast, the countries with religious legal systems, like Saudi Arabia, face challenges similar to those faced by India. A dual approach with amending the personal laws while providing a secular marriage option could effectively address the diverse legal landscape of India.
Challenges and Considerations
1. Religious Sensitivities: Personal laws are closely tied with the religious identity of a person, and reforms to such laws may face resistance from different communities that see same-sex marriage as contrary to the tradition of their religion.
2. Regional variations: The acceptance of same-sex marriage varies regionally in different parts of Indian states. This presents a need for campaigns at the local level with the reform in the legal system.
3. Constitutional obligations: Articles 14, 15 and 21 of the Indian Constitution mandate equal treatment to all individuals. It obligates the state to recognise same-sex marriages.
4. Broader implications: The decision of recognising marriage must also address related rights of same-sex couples, such as adoption, inheritance, medical and tax benefits. This will ensure comprehensive equality for them.
5. Societal Shifts: The limited acceptance of same-sex relationships in the society requires public awareness campaigns which will further help to support the legal changes.
Proposed solutions
1. Revising personal laws: The amendment in the statutes like Hindu Marriage Act, 1955 to use gender neutral terms such as “spouse” instead of “husband” or “wife” will allow the same-sex couples to marry under the personal laws. The engagement with the religious communities will also help in mitigating the opposition by these communities.
2. Secular Marriage Law: A civil marriage can be introduced that will allow same-sex couples to choose a secular framework. It will provide the homosexual couples the legal recognition for their marriage.
3. Gradual adoption of UCC: The Uniform Civil Code can be gradually implemented in stages in the country. The implementation can start with marriage and inheritance while consulting with the communities to address cultural concerns.
4. Judicial Flexibility: The courts should be encouraged to interpret the existing laws inclusively as used in Arun Kumar case to provide temporary relief for the time being while waiting for the legislative changes.
5. Comprehensive reforms: There is also a need to update other laws related to marriage such as the Hindu Succession Act. It will ensure that the same-sex couples also have equal rights in adoption, property and other social benefits.
Conclusion
The recognition of the same-sex marriages in India needs an approach that balances country’s diverse legal traditions and the constitutional rights. The apex court judgement in the Navtej Singh Johar and Supriyo v Union of India case law demonstrates the need for legislative action to address the existing legal gaps. A dual strategy to modify the personal laws with introducing a secular-laws provides a more practical solution that respects the cultural diversity along with ensuring equality. Examples from the global world can be taken which showcase the possibility of inclusive framework. The regional campaign can help foster societal acceptance.
FAQS
1. What are the personal laws in India?
Personal laws are religion specific law that regulates marriage, divorce, inheritance and other affairs of a particular religion like Hindu, Muslim, Christian and Parsis.
2. What is the reason behind the exclusion of same-sex marriage from the personal laws?
The personal laws define marriages as a heterosexual union while explicitly using words like “man” and “woman” in the statute. It reflects the religious norm that does not address any same-sex relationships.
3. What is UCC (Uniform Civil Code)?
Uniform Civil Code, as the name suggest, is a unified legal framework that is applicable for all the citizen irrespective of their religions. This code will override all the personal laws and ensure equality among all citizens. UCC is envisioned under Article 44 of the Indian constitution as a Directive Principles of State Policy (DPSP) to the state.
4. Is the right to marry a fundamental right under the constitution of India?
The supreme court in Supriyo (2023) judgement held that right to marry is not a standalone fundamental right. However, the court in earlier judgements like Navtej Singh Johar and Shafin Jahan interpreted the right to marry as a broader expansion of article 21 (right to life and personal liberty).
5. Can personal laws be amended to include same-sex marriage?
Yes, these laws can be amended to include same-sex couples also. The parliament has the power to legislate and amend the personal laws. However, the interference by parliament would likely face resistance from the religious communities and they may also raise concern with regard to Article 25 (right to religion).
6. What can be the other option apart from personal law amendments?
Apart from the personal laws, the secular laws like the Special Marriage Act 1954, can be amended by the parliament to make it gender neutral. It avoids any interference with the religious doctrines.
Links
Supriyo v Union of India
https://api.sci.gov.in/supremecourt/2022/36593/36593_2022_1_1501_47792_Judgement_17-Oct-2023.pdf
Navtej Singh Johar v Union of India
https://indiankanoon.org/doc/168671544/
