The ability to choose one’s life partner goes to the root of the right to life and liberty as defined in Article 21 and all person including those queer – (chief justice of india D.Y Chandrachud)
Same sex marriage go against india’s culture said by the some sections of indian society.On 6th january Supreme court taken all petitions regarding the same sex marriage from different high courts. The petition are saying that supreme court decriminalised homosexual relationship in 2018 (i.e gay sex is no more illegal) then why should not legalized same sex marriage in 2023? but some are against of it as they arguing its going against our traditional values because the family is the basic unit of our indian society and same sex couple can’t procreate so can’t consitute a family that against our society. The LGBTQ community constitute 7 to 8 percent of the india’s population.
if supreme court decriminalised the homosexuality why should marriage be legalized? There are many family laws in india that regulate the matters of adoption surrogacy inheritance etc and marriage play a crucial part in all these laws and as LGBTQ couple can’t marry legally there marriage is not recognised legally they are deprived of these rights afforded by these indian laws.A same sex couple can’t legally adopt baby in india, according to indian laws a single women can adopt a child of any gender while a single man is eligible only to adopt a male child and also the LGBTQ person can apply for adoption as a single parent with the other partner having no legal rights over the child. and in the another example one couple from LGBTQ community who marries each other in the United States 9 years ago this couple moved to india some years ago they have been going through financial struggle because of the law one of them said he could not get life insurance for his partner and can’t get joint loan to buy a house because their marriage not legally recognised. The LGBTQ peoples saying that such laws create ground for discrimination in society.
Moreover same sex couple lack security and protection from the govt as well as from the society for instance in the case of marriage the heterosexual couple, one partner cannot simple walk away and marry someone else legally but in same sex couple due to lack of legal recognition of their marriage one partner can break off the marriage without any legal consequences.In matter of inheritances the heterosexual spouses can inherit each other property in the absences of a will but that’s not in the case with the same sex couples as spouses property can be inherited by the partner or family there is no law specifying who inherit the property.
As our constitution promised right to liberty equality privacy if a heterosexual couples can legally get married and denying to legalize same sex marriage goes against provision of equality. Right to marriage is fundamental right It held by the supreme court choosing life partners is a manifestation of their freedom of choice guaranteed under Articles 19 and 21 of the Constitution. Consequently, in Shafin Jahan v. K.M. Asokan, the Court stated that the right to marry the person of one’s choice is a fundamental component of Article 21 and if present structure of marriage in india does not recognised same sex marriage then it violate fundamental rights given under the constitution.Supreme court has taken stand even on inter caste marriages and inter religion marriages so why not on same sex marriage? Many legal experts have pointed out that legalized same sex marriage does not necessarily involve changing any article of the constitution all it require is few area to be amend in the Special Marriage Act and legal expert claim that the Act should be made gender neutral.
the LGBTQ community not only deprived of legal and constitutional rights but also deprived support and acceptance from the society so by changing the law peoples opinion could also be change and may increase in societal acceptance and, reduction of police harassment and more acceptance by families.
Countries all over the world have accorded this rights to same sex couples and if this rights are not provided in india then india will faced a brain drain the talented LGBTQ peoples would leave india and settle in foreign countries where same sex marriage are recognised on today india enjoying demographic dividend and LGBTQ community also part of it.
Some of the arguments are also raised against this legalizing same sex marriage like coping of western culture and violating india’s values and same sex marriage violate the fundamental unit of our society i.e family and its goes against the religious values etc but more importantly society should also protect LGBTQ community’s rights ( ex: Equality,freedom liberty etc).
In conclusion the indian constitution has conferred rights to the every citizens so we should also ensure these rights should not deny to same sex couples and reforms must also be carried out to change some criminal laws as well because not just men or women there is a third gender which is subject to some heinous criminal offense thus, they should also be included in the ambit of such offenses.
BY:-
SYED MUSTAQ HUSSAIN 2/3 LAW COLLEGE, a Student of DR B.R AMBEDKAR LAW COLLEGE
