SAME-SEX MARRIAGE IN INDIA
By: Sakshi Jha, a student at Symbiosis Law School, Hyderabad
ABSTRACT:
Same-sex marriage is a union of two individuals of the same sex. Even after getting recognition from the law, the concept of same-sex marriage receives a mixed reaction from the people. While some find it repulsive and opposing, others embrace and support it. The idea of same-sex marriage has been a significant social issue. While it is practiced in some parts of the world, it has been frowned upon in other parts. This article will examine the notion of same-sex marriage with the help of various case laws.
Keywords: Same-sex marriage
INTRODUCTION:
India is a culturally diverse nation. The occurrence of same-sex marriage and transgender people in numerous kingdoms has been mentioned numerous times in our history. Ancient same-sex partnerships and marriages are also shown in a variety of artistic and architectural works. A couple of examples of same-sex weddings in the past are the Ellora Caves in Maharashtra and the Sun Temple in Orrisa.
In the past few decades, the concept of same-sex marriage has gained recognition in India. The Supreme Court has rendered numerous significant rulings over the past ten years that have cleared the path for this underprivileged group’s basic rights to be recognised. The Parliament’s conservative bent, which required a liberal court to redress, is reflected in the MPs’ failure in this area. A few of the important Supreme Court decisions are:
- Naz Foundation v. Government of NCT Delhi (2010):
In this instance, it was claimed that Section 377 violates the basic rights protected in Articles 14, 15, 19, and 21 of the Constitution since it permits consensual sexual relations between two adults in private.
In this case, the Court acknowledged the petitioners’ arguments and ruled that the portion of Section 377 that prohibited adults from engaging in consensual private sexual acts was extra vires.
- Suresh Kumar Koushal and another v. Naz Foundation & Others :
In this case, the Supreme Court set aside the judgment of Delhi High Court which declares sec 377 of IPC as unconstitutional. Here the court stated that every legislation enacted by the Parliament or State legislature carries with it a presumption of constitutionalityIf a law is passed without being amended, it may indicate that the legislature decided to keep it that way. In the end, the court determined that section 377 was constitutionally permissible. However, the court left it open for the Legislature to remove or amend the law.
- Navtej Singh Johar and others v. Union of India (2018):
In this case, Section 377 of the Indian Penal Code—which deemed “carnal intercourse against the order of nature” a crime—was substantially overturned by a five-judge Supreme Court bench.
The Court ruled that Articles 14, 15, 19, and 21 of the Constitution are violated to the extent that Section 377 makes private, voluntary sexual actions by adults—that is, anyone over the age of 18 who are able to consent—criminal. It is made clear, therefore, that this kind of consent must be free consent—that is, entirely voluntary and free from compulsion or duress.
Recently, in a 3:2 decision, the Chief Justice of India led five-judge Constitution Bench of India’s highest court decided against granting same-sex marriages constitutional legitimacy. According to the CJI’s ruling, the court cannot amend the Special Marriage Act (SMA) 1954 to include people of the same sex as partners, nor can it strike down the SMA 1954. The Supreme Court ruled that state legislatures and Parliament should make laws regarding it. The bench, however, said that same-sex partners can join in a union. The Indian Constitution recognizes the right to marriage as a statutory right rather than a fundamental or constitutional one. Even though several legislative acts govern marriage, India’s Supreme Court rulings are the only ones that have led to marriage’s recognition as a basic right. As per Article 141 of the Constitution, a court anywhere in India must follow such a statement of law.
Chief Justice of India (CJI) recognized that living together is a fundamental right and that the government must legally address the social implications of these kinds of partnerships. Even though the Supreme Court has not legalized same-sex marriage, the Chief Justice of India (CJI) said that same-sex partners can adopt children. This is so because it has not been mentioned anywhere that only heterosexual partners can raise and take care of children. Homosexual partners can take care of and raise children just as well as any heterosexual partners.
CONCLUSION:
In this article, we saw that although same-sex marriage / homosexual marriage has been in our culture for a very long time, it still has not been accepted by the citizens of our nation. The citizens of our country still find the concept of same-sex partners or homosexuality alien. The recent Supreme Court ruling as well although it did not legalize same-sex marriages, the Chief Justice of India (CJI) said that homosexual couples can still get into a union and can adopt kids as well.
