Author: Manya Pankaj Kumar Prabhakar, a Student of Shree L.R Tiwari College of Law
ABSTRACT
Marriage is a sacred relation between two people that is recognized by law. Although, marriage is not a fundamental right under our constitution. But there are laws like HMA, Special Marriage Act, Muslim Personal laws that recognized marriages between two people. Same -sex marriage refers to the union between two individuals of same gender. It has been a controversial and debate topic for ages in India as there is no legal recognition to it. However, various judgement of SC declined to legalise same – sex marriages but recently in 2018, in Navtej Singh Johar Case, SC struck down IPC sec 377 and decriminalise consensual homosexual act which made significant impact on LGBTQ+ community. This article examines the constitutional dimensions, relevant case laws, recent judicial developments and petitions filed before Supreme Courts.
INTRODUCTION
The issues of same-gender marriage continues to spark debate in India as it involves granting marital rights to the couples of the same sex. Countries like Australia, Austria, Argentenia, Brazil made same-sex marriage legal. Argentina was first country to legalise same-sex marriage in 2000. As of 2024, 38 countries have legalised same- sex marriage. Though India has not legalised it because of combination of religious, cultural and legal arguments against it. In Indian society marriage means a relation between male and female so that their generations could grow. There is misleading conception in our Indian society that same sex marriage is new modern thing that is happening around the country. But In Vedas, Mahabharat there is concept called homosexuality that have already been mentioned on it. Homosexuality sculptors have been made on temples wall that signifies that homosexuality is not new born concept. Still there are many people who don’t know about it and those who know, they considered same-sex marriage a taboo. Recently, in 2018, In Navtej Singh Johar Case SC struck down IPC sec377 and decriminalise consensual homosexual act. This judgement of SC made relief for LGBTQ+ Community.
In 1981, a notable early example of same-sex relationship in India occurred in Madhya Pradesh, where two female police officers Leela Namdeo and Urmila Srivastava entered into a union. Formerly, in 2023 renowned sprinter Dutee Chand submitted a petition to the SC advocating for the legal acknowledgement of same-sex marriages, but the court ultimately dismissed the plea. In Supriyo v. UOI case SC said that same-sex marriage is the matter of parliament as they would decide and make law on it.
CONSTITUTIONAL DIMENSIONS
ARTICLE 19: RIGHT TO EQUALITY
As individuals have the autonomy in matter of marriage then why the same-sex couples don’t have. Hence, denying same- sex couples the right to choose partners as other couples do have violates the equality clause, as it is arbitrary discriminations based on sexual orientation.
ARTICLE 15: NON-DISCRIMINATION
Although article 15 does not explicitly include sexual orientation. But In Navtej Singh Johar case, the SC recognized discrimination on sexual based orientation as unconstitutional.
ARTICLE 21: RIGHT TO LIFE AND DIGNITY
An Individual have right to make personal choices and it is a fundamental aspect of article 21. Hence, excluding same -sex couples undermine their dignity and autonomy.
LEGAL CASE LAWS
NAVTEJ SINGH JOHAR V. UOI (2018)
It was the relief landmark judgement for LGBTQ+ Community. The honourable SC in his ruling struck down the IPC sec 377 which says about criminalizing homosexual act.
SC decriminalized homosexual act as it violates the fundamental rights to equality, privacy and dignity of LGBTQ+ individuals, (violation of art 14,15,19,21).
This judgement made a significant impact on LGBTQ+ community and allowed individuals to express their sexual orientation without fear of criminalization.
SHAFIN JAHAN V. ASOKAN K.M(2018)
Though this case is not directly linked to same-sex marriage but in this case SC in his judgement ruled that the couples have the right to choose their religion and partner.
Therefore, this case signified the importance of individual autonomy and choice in matter of marriage and religion and underscored the right to choose a partner as inherent to article 21.
SUPRIYO V. UOI (2023)
SC in his ruling with 3:2 majority denied legal recognition of same- sex marriage under the existing marriage laws and said, it is the matter of legislature and they should make a committee and decide on the topic. Majority said that as marriage is not a right and same-sex marriage has not been mentioned in Special marriage act. They should not be given the right to marry. However, CJI and Justice Krishna Kaul favoured that LGBTQ+ individuals have the right to civil union.
Civil Union: Recognition of civil union that confers rights like inheritance, maintenance, adoption, tax benefits etc… without altering personal laws is the possible middle path.
This route is adopted in countries like Italy, Czech Republic.
LEGAL BARRIERS IN EXISTING MARRIAGE LAWS
India has several marriage laws based on religion:
- Hindu Marriage Act, 1955
- Muslim Personal Law
- Special Marriage Act, 1954
- Parsi Marriage and Divorce Act,1936
- Christian Marriage Act,1872
The above personal laws define marriage as a union between man and woman. These definitions exclude same-sex couples both explicitly and implicitly.
Special Marriage Act 1954: Even this secular law which allows interfaith civil marriages, does not recognize same-sex unions.
CONCLUSION
Same- sex marriage is one of the most significant civil rights issues of the 21st century. As of 2024, a total of 38 countries has granted legal recognition to same-sex marriages, yet India continues to withhold such recognition. While marriage itself may not be classified as a fundamental right, individuals retain the freedom and personal autonomy regarding whom to marry. Exclusion of same gender people from the rights violate their constitutional rights given in article 14, 15, 21. Countries like in USA, South Africa and Nepal where same- sex marriage is a constitutional right and SC directed the government to frame laws to permit same-sex marriage. Hence, India should amend the Special Marriage Act,1954 to be gender- neutral and must move toward affirmative recognition.
FAQs
Q1. What is same – sex marriage?
Ans: Same-sex marriage is the union between two individuals of same gender.
Q2. What was the judgement given in Supriyo v. UOI by honourable SC?
Ans: With 3:2 majority the SC in his ruling denied same – sex marriage recognition. SC said that it is the matter of parliament to make law on it and government should form a committee to discuss over the concerned topic.
Q3. When was the first same- sex marriage reported in India and why India has not legalized the same- sex marriages yet?
Ans: The first same- sex marriage in India was reported in 1981 when two policewomen married with each other. India has not recognized the same -sex marriage due to the combination of religious, cultural and legal argument against it.
Q4 How many countries have decriminalized same- sex marriage and which country was the first to do it?
Ans: As of 2024, 38 countries have decriminalized the same-sex marriage. Netherland was the first country that made same-sex marriage legal.
Q5. What was the judgement given in Navtej Singh Johar Case?
Ans: SC in his judgement struck down IPC sec 377 and decriminalized consensual homosexual act. It was the relief judgement for the LGBTQ+ community.
