Author: Bhumika Gurjar, Department of Law, Prestige Institute of Management and Research, Indore
INTRODUCTION:
Same-sex marriage, commonly referred to as gay marriage, is the union of two people of the same legal gender. Marriage between same-sex couples will be legalised and recognised in 36 nations by 2024, with a total population of 1.5 billion people (20% of the world’s population). The most recent countries to legalise same-sex marriage are Greece, Aruba, and Curaçao in the Netherlands. Two more nations, Liechtenstein and Thailand, are scheduled to begin performing same-sex marriages in late 2024 or early 2025.
Men’s marriages have been recorded from the first century. Michael McConnell and Jack Baker were the first same-sex couple to marry legally in modern times, in 1971 in the United States. The first law establishing marital equality for same-sex and opposite-sex couples was approved in the continental Netherlands in 2000 and went into effect on April 1, 2001.The application of marriage law equally to same-sex and opposite-sex couples varies by jurisdiction and has resulted from legislative changes to marriage law, court rulings based on constitutional guarantees of equality, recognition that same-sex marriage is permitted by existing marriage law, and direct popular vote, such as referendums and initiatives.
HISTORY:
A few experts believe that in the early Roman Empire, some male couples performed traditional marriage rites in front of acquaintances. Male-male weddings are published by sources that parody them; the participants’ emotions are not documented. According to many historical traditions, the emperor Nero performed two public weddings with males, once as the bride (with a freedman Pythagoras) and once as the groom (with Sporus); there may have been a third in which he was the bride. In the early third century AD, the emperor Elagabalus is said to have been the bride in a wedding to his male counterpart. Other adult males at his court had husbands, or claimed to have husbands in imitation of the emperor.Roman law did not recognise marriage between males, but one of the reasons given in Juvenal’s satire is that performing the rites would raise expectations that such weddings would be formally acknowledged. As the empire became Christianized in the fourth century, formal prohibitions on male marriages emerged.
TERMINOLOGY:
Use of The Word Marriage:
Anthropologists have tried to define marriage in a way that takes into account the social construct’s commonality across civilisations. Many proposed definitions have been criticised for failing to acknowledge the presence of same-sex marriage in particular cultures.
All major English dictionaries have updated their definitions of marriage to either drop gender specifications or supplement them with secondary definitions that include gender-neutral language or explicit recognition of same-sex unions, in light of several countries revising their marriage laws to recognise same-sex couples in the twenty-first century. The Oxford English Dictionary has recognized same-sex marriage since 2000.
Alternative Terms:
The terms marriage equality and equal marriage were used by some advocates of same-sex marriage’s legal recognition, including Marriage Equality USA (established in 1998), Freedom to Marry (founded in 2003), Canadians for Equal Marriage, and Marriage for All Japan, to indicate that their objective was for same-sex marriage to be acknowledged on an equal footing with opposite-sex marriage.
MARRIAGES IN INDIA:
In India, marriages can be registered under the Special Marriage Act of 1954, the Muslim Personal Law Application Act of 1937, or the Hindu Marriage Act of 1955, depending on the applicable personal law. Ensuring the protection of the rights of both husband and wife is the responsibility of the judiciary. Regardless of the religion or creed practiced by either side, the Special Marriage Act, 1954 provides provisions for civil marriage for all Indian citizens living abroad as well as those living in India itself. When someone gets married under this law, the Special Marriage Act governs the union rather than their own personal laws.
STATUS OF SAME-SEX MARRIAGE IN INDIA:
Earlier Views of the Supreme Court on Same-Sex Marriages
According to Shafin Jahan v. Asokan K.M. and others (2018), marriage is a fundamental right.
Referencing both Article 16 of the Universal Declaration of Human Rights and the Puttaswamy case, the Supreme Court ruled that Article 21 of the Constitution guarantees an individual’s right to marry the person of their choosing.
The Indian Constitution’s Article 16(2) states that discrimination cannot be practiced solely on the basis of a person’s religion, race, caste, sex, descent, place of birth, domicile, or any combination of these.
The freedom of every person to make decisions that are essential to pursuing happiness is a fundamental right guaranteed by the Constitution, and this includes the right to marry.
PRESENT SCENARIO:
A five-judge Constitution Bench of the apex court headed by Chief Justice of India ruled in a 3:2 verdict against giving constitutional validity to same-sex marriages stating The Indian Constitution recognises the right to marriage as a statutory right rather than as a fundamental or constitutional one. Even though marriage is governed by a number of legislative acts, 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.
Arguments Raised Against Same-sex Marriage:
Religious and Cultural Beliefs: A lot of religious and cultural groups hold the view that a man and a woman should be the only partners in marriage.
Procreation: Some claim that same-sex couples are unable to create biological children and that this is the main reason for marriage.
Legal concerns: There are worries that permitting same-sex unions could lead to legal complications with property rights, taxes, and inheritance.
Problems with Adopting Children: Adopting children by queer couples can result in stigma, discrimination, and detrimental effects on the emotional and psychological health of the kid. This is particularly true in Indian society, where there is not always
acceptance of the LGBTQIA+ population.
CONCLUSION:
Denmark was the first nation to formally recognise same-sex relationships in 1989. Same-sex couples were granted “most rights of married heterosexuals, but not the right to adopt or obtain joint custody of a child” through the establishment of registered partnerships. The Netherlands as a whole became the first nation to extend marriage laws to same-sex couples in 2001. Most established democracies throughout the world allow same-sex marriage; notable exceptions include South Korea, Italy, Japan, and the Czech Republic. Although most states that allow same-sex marriage permit those couples to jointly adopt like other married couples do, adoption rights are not always addressed. Although Kosovo is taking the initial steps, no Muslim-majority country in the world recognises same-sex marriage. Some nations, like China and Russia, impose restrictions on the promotion of same-sex marriage. Same-sex marriage is legal in the majority of developed democracies across the globe, with the Czech Republic, Italy, South Korea, and Japan being prominent exceptions. Adoption rights are not usually addressed, even though the majority of states that recognise same-sex marriage also allow those couples to jointly adopt, just like married couples do. While Kosovo is making progress, no nation with a majority of Muslims worldwide has legalised same-sex unions. Certain countries—such as China and Russia—impose limitations on the encouragement of same-sex unions. Same-sex marriage is expected soon in Liechtenstein and Thailand, and is under consideration by the legislature or the courts in Japan,] Nepal, and Venezuela.
In India A five-judge Constitution Bench of the apex court headed by Chief Justice of India ruled in a 3:2 verdict against giving constitutional validity to same-sex marriages. All five judges on the Bench, agreed that there is no fundamental right to marry under the Constitution of India.
(Navjet Singh Johar and others v. Union of India 2018):
The SC held that members of the LGBTQ community “are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution” and are entitled to equal citizenship and “equal protection of law”.
FREQUENTY ASKED QUESTIONS:
1.What rights do LGBTQ+ individuals have in India apart from marriage?
LGBTQ+ individuals in India have gained several legal protections, including the right to privacy, protection against discrimination, and the right to live with dignity. Additionally, the Transgender Persons (Protection of Rights) Act, 2019, provides certain rights and protections to transgender individuals.
2. Is Same-Sex Marriage Legal in India?
As of now, same-sex marriage is not legally recognized in India. While the Supreme Court of India decriminalized homosexuality in 2018 through the landmark decision in Navtej Singh Johar v. Union of India, the court did not legalize same-sex marriage. Efforts to legalize same-sex marriage are ongoing, with petitions filed in various courts.
3. Are there any legal protections for same-sex couples in India?
Although same-sex couples do not have the legal right to marry, they are increasingly gaining visibility and some informal recognition in society. However, legal protections such as inheritance rights, adoption rights, and spousal benefits are not currently available to same-sex couples in India.
4. What can same-sex couples in India do to protect their relationship legally?
Same-sex couples in India can take certain steps to protect their relationship, such as drafting wills, powers of attorney, and cohabitation agreements. While these measures do not equate to the legal status of marriage, they can offer some level of protection and recognition.
