- Ananya Singh (Vivekananda Institute of Professional Studies)
- Introduction
Marriage is a socially and legally recognised relationship, often including a man and a woman. It is governed by laws, norms, conventions, beliefs, and attitudes that specify the spouses’ responsibilities and rights and grant status to their children.1.
Although most marriage laws utilise terminology that is gender-neutral, marriage is a prevalent connection in society that is exclusively recognised as male-female. Though there aren’t many examples of homosexual weddings being accepted lately, society is gradually growing laxer.
In Navtej Singh V. Union of India2, the Supreme Court struck down Section 377 of the IPC, reflecting a similar change.
Nonetheless, despite a plethora of objections from people and groups advocating for the legalisation of same-sex unions, a number of states have upheld their constitutional bans on homosexual marriage. Additionally, several countries, like India, do not accept same-sex marriage legally. Consequently, homosexual couples are excluded from certain legal and financial advantages that are often associated with marital status, irrespective of the length of their relationship.
These consist of work prospects, the capacity to file joint tax returns, health benefits, and rights arising from the death of a spouse, including inheritance rights abroad, among other things. They could also be particularly relevant in view of the AIDS crisis. All of these advantages support patriarchal de facto marriages in normal culture, but they are inapplicable to homosexuals.
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1 Britannica, The Editors of Encyclopaedia. “marriage”. Encyclopedia Britannica, 29 Mar. 2023,
2 AIR 2018 SC 4321
- Background
Many ancient texts from India attest to the long history of homosexuality in that country. Statues and artefacts from about 1500 BC, together with other ancient literature and the Rig Veda, all portray a feminine realm of fertility and play. A portion of the documentation proving homosexuality.
Throughout the Muslim Middle Ages, images of homosexual practices in the Kamasutra and of young boys maintained by Muslim nawabs and Hindu rulers were documented, along with stories of sodomy among Tantric rit couples.
But with the advent of Vedic Brahmanism and then British imperialism, these exchanges started to become less significant. According to Giti, at the time of the Aryan invasion around 1500 B.C., the growing power of the patriarchy began to tame homosexuality. The Manusmriti mentions whippings, heavy fines, and caste loss as penalties for gay and lesbian conduct.
It serves as a warning to married women that the “waiting of maids” will culminate in a woman having her fingers cut, her head shaved, and a donkey paraded. Manu’s more severe penalties for married women demonstrate the prevalence of these kinds of relationships among married women as well as the greater tolerance of unmarried women.
Author Ruth Vanita examined the legal, theological, and historical facets of several same-sex weddings and suicides that had occurred over the previous three decades in her book “Same-Sex Love in India: Readings from Literature and History” published in 2000. She said that many of the unions may be regarded as legally legitimate since, in accordance with the Hindu Marriage Act of 1955, any union between two Hindus done in accordance with the traditions that are common in one of the two spouses’ communities is legally recognised. In India, the majority of heterosexual Hindu weddings are done only through religious ceremonies, without the need for a marriage permit, and are never recorded with the government.
- Same Sex Marriage In India
Same-sex partnerships have historically been diagnosed in India as a trans-rooted foreign culture-bound sickness. As a result, LGBT organisations are primarily working towards the methodical strategy needed to address every issue that LGBT Indian residents encounter. These organisations had previously focused on passing anti-discrimination legislation and repealing Section 377 of the Indian Penal Code.
LGBT rights organisations, however, remain upbeat and determined to gain the right to same-sex marriage because of the advancements made in a number of Western nations.
In India, marriage and relationships are very important from a cultural and societal standpoint. One of its main components, the divine roles, is what makes anything a sacrament. It explains the several scenarios of lesbian marriages, such how church rituals work and how, in some cases, shrines are exchanged for feasts.
Following the Supreme Court of India’s ruling in Navtej Singh Johar v. Union of India, which decriminalised homosexuality in India in September 2018, a plethora of lawsuits have been brought around the country to address the marriage rights of Indian same-sex couples. The Madras High Court ruled in April 2019 that transgender women are allowed to marry under the Hindu Marriage Act, 1955.
In July 2019, attorneys Tajinder Singh and Anurag Chauhan filed a lawsuit, requesting that the Delhi High Court provide instructions for the formulation of policies and procedures that will authorise same-sex unions in accordance with the Hindu Marriage Act of 1955.In a same vein, a Hindu lesbian couple hoping to get married under the Act in April 2022 had their appeal turned down by the Allahabad High Court.
The Supreme Court reopened the hearing on April 27 since the arguments were still pending over the legal recognition of same-sex marriage in India. The Supreme Court hinted that it may consider issuing a constitutional declaration for same-sex couples that may fall short of granting them marriage rights on Thursday while delaying its decision on a number of petitions seeking the right to marriage for members of the LGBTQIA+ community under the Special Marriage Act, 1954. The petitions faced strong opposition from the federal government and state governments.
- Historical School Of Jurisprudence
The habits and customs of individuals, which vary based on their wants and requirements, serve as the fundamental basis for the Historical School of Jurisprudence. It is sometimes referred to as the continental school of law. This school disapproves of the notions that laws are made by judges and have a heavenly origin. “That branch of legal philosophy which is termed historical jurisprudence is the general portion of legal history,” according to Salmond. It is related to legal history in the same way as analytical jurisprudence is related to the methodical explanation of the legal system.
This school came into being as a response to the natural school of law, which is why. The natural school of law holds that a supernatural force created the law. Another name for natural law is the eternal law. It has been there since the dawn of time. It is intimately related to God’s intentions and moral standards. The natural law is somewhat relevant to the provisions of the Indian constitution.The historical school of jurisprudence emphasises how humans, not a divine source, formed the law. It is in opposition to the analytical school of jurisprudence’s ideology.
The history of law is explained by the Historical School of Jurisprudence. According to this school, the law was not formed; it was found. The primary sources of law are customs, habits, and kings’ judgements. The Historical School of Jurisprudence is supported by jurists such as Georg Friedrich Puchta, Sir Henry Maine, Savigny, and Montesquieu. Montesquieu was the first jurist of the Historical school, according to Sir Henry Maine. Sir Henry Maine was the English Historical School’s jurist.
He was more rational and agreed with the notions of law and codification. The founder of historical education was Savigny. He maintained that laws have a national character and are similar to languages. There are exceptions to the law. Puchta developed Savigny’s theories and maintained that the state and the people are the ultimate source of law and have equal weight.
- Sociological School of Jurisprudence
The goal of sociological education is to create a connection between society and the law. The legal aspect of every issue and every social transformation was given more weight in this school. Law is a social construct with a relationship to society, either directly or indirectly. The goal of the Sociological School of Jurisprudence is to strike a balance between the interests of the state and the person.
Ehrlich once stated, “The centre of gravity of legal development lies in society itself.”
The discipline of sociological school of law examines the connection between sociology and the law. Every idea or topic has two distinct sides. A legal aspect is one, and a sociological perspective is the other. Take Sati, for instance.
The industrial and technological revolution, the political shift away from the laissez-faire doctrine, and the historical school that highlighted the connection between the law and the social welfare state of the modern era all contributed to the development of the sociological approach to jurisprudence. This approach has sought to understand law by examining its social origins, evaluating it as a particular social phenomenon, and, ultimately, judging it based on its social utility.
Laissez-faire has caused everyone to prioritise their own interests over those of the state, the general public, and the welfare of the state. Since the sociological school promotes striking a balance between the interests of the individual and the welfare of the state, it emerged as a reaction against laissez-faire.
- Correlation of Same Sex Marriage with Historical School and Sociological School
The focus of the Sociological School of Law is less on the abstract content of law and more on its practical application. They view the law as a social institution that is fundamentally connected to other scientists and that directly affects society since it is formulated in response to social demands.
Positive theory, or the authority of the sovereign, as well as historical jurisprudence, are entirely disregarded by sociological schools of law.
When talking about the same-sex case, Viswanathan briefly touched on the well-established legal doctrine that, in terms of upholding fundamental rights, the Constitutional Courts do not need to wait for legislative action. This was decided by Honourable Justice RF Nariman in the Navtej Singh Johar case, and he quoted it as saying, “These fundamental rights do not depend upon the outcome of elections.” Furthermore, majoritarian governments are not the only ones who decide what constitutes conventional wisdom in social morality. In the cosmos of Indian constitutionalism, the chapter on basic rights is comparable to the North Star.
Recognising the historical foundations of marriage, one must also note that it is the result of socially created and accepted meanings that are preserved and modified throughout time.
Marriage is the product of people and cultures coming to a general understanding of what it means to be married, not an objective truth. Over time, this term has undergone significant modification.
The idea of same-sex marriage is correlated with sociological school when it is said that heterosexual marriages are the norm and the basis for the state’s existence. This statement has a similar ring to the theoretical foundations of the miscegenation statutes law.
Changes are not limited to sentimental movements towards love and connection. Some sociologists question if the worry around this matter is a reflection of a broader ambivalence regarding a range of trends: The majority of first-time parents and people in their twenties are not married at the time of birth; most mothers today work for pay, including those with children who are not yet old enough to attend school; Americans cohabitate before getting married and wait until almost 30 to tie the knot; divorce rates are approximately 40%.
Lesbian couples bearing children at about the same rate as heterosexual couples have long been a part of LGBTQ families’ contributions to these improvements. Lesbians and homosexuals enjoy equal rights to adoption in the majority of states.
One of the legal schools that came after Natural Law is the Historical School of Jurisprudence. This law also maintains that years of historical evolution have produced laws in general. This examines the idea as well as the history of law.
The historical school promoted the idea that social customs, economic requirements, conventions, religious beliefs, and relationships among state residents all influence the development of laws. The proponents of this school contended that, in contrast to the natural school, which held that law derives from higher authority or sovereignty, law is not created; rather, it is developed from pre-existing resources such as customs and religious ideas.
Hindus view marriage as a sacrament rather than a type of social compact because they hold that all men and women are meant to be parents and to practise dharma in unison, as prescribed by the Vedas. According to the Brahmanas, a man may only be considered “complete” when he marries and has children. As a result, same-sex marriage has not been recognised in accordance with historical scholarship.
CONCLUSION:
In conclusion, the discussion surrounding same-sex marriage in India intersects with various legal and sociological perspectives. Despite historical evidence of same-sex relationships in ancient India and recent legal advancements such as the decriminalization of homosexuality, the recognition of same-sex marriage remains a contentious issue.
The Historical School of Jurisprudence emphasizes the influence of social customs, economic needs, and religious beliefs on the development of laws. From this perspective, marriage is seen as a sacrament deeply rooted in traditional norms and customs, particularly within Hindu culture, which has not historically recognized same-sex unions.
On the other hand, the Sociological School of Jurisprudence emphasizes the practical application of law and its connection to societal norms and demands. Advocates for same-sex marriage often frame their arguments within the framework of societal progress, arguing that legal recognition reflects evolving social attitudes towards equality and human rights.
The ongoing legal battles and societal debates surrounding same-sex marriage in India reflect the tension between these two perspectives. While there is a growing recognition of the rights of LGBTQIA+ individuals, including recent court rulings acknowledging transgender marriage rights, the issue of same-sex marriage remains complex and multifaceted.
Ultimately, the resolution of this issue will likely involve a combination of legal reform, societal evolution, and continued advocacy efforts by LGBTQIA+ rights organizations. As India navigates these complexities, it will be essential to balance respect for cultural traditions with the principles of equality and human rights for all citizens.
