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  • Nayan Varsha Greaves

Same-Sex Marriage in India: Where Do We Stand and Where Do We Go from Here?

Written by : Nayan Varsha Greaves, LL.M., Government Law College, Kozhikode

Abstract:

India's legal stance on same-sex marriage has made great strides since the groundbreaking 2018 Supreme Court ruling that overturned Section 377 of the Indian Penal Code and eliminated the criminalization of same-sex relationships. However, the question of granting legal recognition and legitimacy to their marriages remains a topic of contention. This paper delves into the intricacies and complexities surrounding the legal status of same-sex marriage, and by exploring the current state of affairs and considering potential pathways forward, this paper aims to contribute to ongoing discussions on achieving marriage equality.

Introduction

India is renowned for its rich cultural heritage and diversity, featuring countless customs and traditions that are deeply ingrained in its very fabric. When it comes to marriage, India's distinct ceremonies stand out in their uniqueness; they are not merely about the joining of two individuals but rather about the unification of two families, which ultimately leads to the strengthening of the familial bond. Each community in India holds its own distinct traditions when it comes to marriage. The laws concerning marriage in India dictate that people from different communities must follow certain rules in order to get legally married.

As society continues to change and evolve, so do the changes and evolutions that take place in the attitudes and perspectives of those within it. As humans adapt to new circumstances and experiences, an inevitable evolution occurs. Along with these changes, societal norms also undergo a shift, mirroring the values and beliefs of the collective group. Yet, there are instances where society resists certain changes that challenge long-held norms and beliefs. One such example that has sparked intense debates in recent years is the acknowledgement of same-sex relationships and their right to marry. In 2018, the Supreme Court of India, by striking down Section 377 of the Indian Penal Code, decriminalized homosexuality and thereby recognized same-sex relationships in India. This monumental moment sparked a major transformation in the country's legal system. Although the milestone was celebrated, the other issue of legally recognizing their right to legally marry in India continues to evolve and present new challenges.

This topic demands careful contemplation of the voices advocating for equal rights and validation, as well as the reservations expressed by those with entrenched traditional or cultural beliefs. As we dive into this conversation, the hurdle lies in fostering a constructive dialogue that unites these opposing perspectives, respecting individual rights while acknowledging the impact of cultural and religious influences on societal values.

 

Same Sex Marriage: Exploring the Concept and Historical Evolution

The legal Information Institute Defines “Marriage as the legal union of individuals.”[1]

“Homosexual” comes from a Greek prefix homo, which means “same”, and these words together constitute the phrase “same-sex”.[2]

Same-sex marriage is the legal union of two people who share an intimate connection with someone of the same gender, reflecting their inherent sexual orientation towards individuals of the same sex.

According to Encyclopaedia Britannica;

“Same-sex marriage, the practice of marriage between two men or between two women.”

This idea boldly defines the outdated belief that marriage should only be between a man and a woman. It embodies equality and the freedom to love without any limitations or biases.

In various countries around the world, same-sex marriage is subject to varying levels of legal recognition. The term commonly used to describe these relationships is "civil union," which grants these couples similar rights as to marriage, but only at the state level. There are 34 countries across the globe where same-sex marriage is legalized.[3]

India has a long-standing history of homosexuality, dating back to prior colonial rule. Its vibrant cultural and religious landscape has long recognized same-sex relationships in all their diverse forms. For example, the temples in Khajuraho, where carvings and artwork depict men openly displaying their genitals to one another and women embracing each other. [4]

During British rule, there was a marked shift in attitudes towards homosexuality, ultimately resulting in the criminalization of same-sex relationships with the introduction of Section 377 under the Indian Penal Code. The Code included provisions that branded homosexuality as an "unnatural offence, “Thus, by invoking Section 377, the state can punish those who engage in "unnatural lust" with imprisonment and fines. The language used in the law, which specifies the phrase "carnal intercourse against the order of nature," leaves room for the unjust criminalization of consensual sexual acts between adults, leading to widespread discrimination and violence targeting the LGBTQ+ community. These harmful societal and familial pressures amplified the struggles faced by homosexual individuals, who often felt compelled to conceal their sexual orientation and live in constant fear of legal consequences.

Despite facing initial hurdles, such as the dismissal of the writ petition in 2001, the LGBTQIA+ rights movement tenaciously pressed on with its legal battle. Multiple petitions were subsequently filed in different High courts and in the Supreme Court of India, ultimately leading to the groundbreaking Navtej Singh Johar judgment [5]in 2018. In this pivotal decision, the Supreme Court has boldly decriminalized consensual same-sex activities by striking down Section 377. The court held that, “What happens between two people of the same sex in their own private domain must be shielded from government and official intrusion. “In the aftermath of this landmark ruling, the Specter of criminalization was lifted, and same-sex couples were finally able to envision a future where marriage equality could become a reality.

Invisible Unions: Legal Barriers Faced by Same-Sex Relationships

India has a vibrant blend of diverse population of cultures, religions, and traditions. In this varied landscape, the institution of marriage carries immense cultural, social, and legal significance.

Upon examination of the current provisions within Indian matrimonial laws, it becomes apparent that none of the personal laws listed include any provisions for the marriage and matrimonial rights of homosexual couples. The Hindu Marriage Act 1955 refrains from using gender-specific terminology, resulting in differing views on the possibility of same-sex couples being able to wed. In Hindu marriages, it's not uncommon for couples to exchange vows without obtaining official certification. In such cases, if legal intervention is needed, judges would carefully review evidence of the marriage, such as photos and recordings. Without proof of the rites being performed, a Hindu marriage cannot be considered valid. If the couple is of the same sex and has completed all the required processes and rituals, they are denied official recognition. Despite being wed in every sense, their union is not acknowledged in the eyes of the law.

Also, The Muslim personal laws in India commonly follow conventional beliefs and only acknowledge marriage between a man and a woman. Finally, the Indian Christian Marriage Act 1872 does not outright forbid same-sex marriage, whereas the Canon Law, particularly within certain Christian denominations, may explicitly prohibit same-sex marriage. The Islamic and Christian perspectives on gender and marriage reflect theological interpretations that uphold binary notions of gender and prioritize heterosexual unions.

Unlike the laws mentioned above which are based on religious beliefs, the Special Marriage Act of 1954 is a truly secular law that allows individuals to marry the person they love, regardless of their religious background. The Act safeguards individuals' succession rights and inheritance claims, guaranteeing that they maintain the legal advantages they would have under their personal laws. Whereas the act does not specifically state the marriage between same-sex individuals, Section 4 of the act speaks about the marriage between two persons. However, the section, when interpreted literally, does not mention the solemnization of same-sex marriage.

This stands in contrast to the rights enjoyed by heterosexual couples, regardless of their marital status or living arrangements. While no explicit provision dictates that marriages under these Acts must be strictly between individuals of opposite genders, this is implied through conditions such as the minimum age requirement for both parties and grounds for divorce. Despite news reports of same-sex marriages being solemnized in various religious ceremonies, the absence of a clear legal framework legalizing such unions leaves them in a Gray area.Vinoda Adwekar and Rekha Chaudhary's visit to the Registrar of Marriages in 1993 proved to be an important example of the confusion surrounding same-sex marriage laws.[6] Initially, the women were not turned away, but their request for a marriage certificate sparked an emergency meeting with judges and law enforcement. This situation also raises the question of whether inquiring about a specific law prohibiting same-sex marriage is the most effective approach. Perhaps a better angle would be to examine the possibilities for same-sex couples to legally wed within the current rules.

In addition to that, the existing legal framework creates enormous obstacles for same sex couples looking to adopt or have children through surrogacy. Due to the 2016 changes to surrogacy laws, they are effectively prevented from pursuing these reproductive options, depriving them of the chance to have a family and experience the joys of parenthood. Furthermore, the lack of recognition of same-sex unions in the law only serves to perpetuate discriminatory practices[7].

This means that same sex couples are unable to access certain rights and benefits that are afforded to heterosexual couples. Whether it is inheritance or tax benefits, pension or compensation rights, these couples are unfairly denied crucial legal protections, leaving them vulnerable and at a financial disadvantage, especially during times of loss.

Legal Enigma: Investigating the Role of Judiciary

For the first time in 2014, the Supreme Court rendered a verdict in National Legal Services Authority vs. Union of India,[8] recognizing transgender individuals as a "third gender" and granting them the fundamental right to define their own gender identity. This pivotal ruling is a significant milestone in the fight for gender equality. The court deemed this provision a violation of fundamental rights protected under Articles 14, 15, and 21 of the Indian Constitution. However, the decision of Suresh Kumar Koushal v. Naz Foundation [9] effectively overturned this ruling. The Supreme Court maintained that it was the responsibility of the legislature to amend such laws, and that the judiciary could not unilaterally alter aspects of the statute. By overturning the criminalization of same sex relations, the Supreme Court has taken an important first step in promoting equality and granting rights to the LGBT community in India.

But, recently, the topic of legalizing same-sex marriage has sparked an ongoing conversation that has captured widespread attention. This hotly debated topic has been at the forefront of discussions since April 2023, when the Supreme Court began listening to petitions on the matter. Recently, on October 17, 2023, the Supreme Court rendered its decision to reject the appeal for the right to marriage for queer individuals in India. In that unanimous ruling, Chief Justice Chandrachud highlighted that marriage legislation is passed by Parliament and subject to amendment by state legislatures, it is not explicitly recognized as a fundamental right under the Constitution.[10] Furthermore, he made a strong remark that, single parents may raise their children in a loving and caring environment regardless of their sexual orientation and added that, "CARA Regulation 5(3) indirectly discriminates against atypical unions. A queer person can adopt only in an individual capacity. This has the effect of reinforcing the discrimination against queer community”

Hope Amidst Challenges:

Thus, a major legal hurdle arises from the contention that the state has no obligation to safeguard the freedom to marry whoever one chooses, regardless of gender identity. This is based on the state's desire to uphold heterosexual relationships for the betterment of society. Moreover, concerns are expressed about the upbringing of children in non-heterosexual partnerships, stressing the absence of a mother or father figure and its alleged impact on the child's well-being. Marriage traditions often prioritize biological parenthood above adoption, making it difficult for same-sex couples who don't fit these traditional expectations to gain acceptance. As a result, it becomes clear that aligning legal recognition with societal norms and interests is a complex and challenging task.

But the latest changes to India's laws, the Bhartiya Nyaya Sanhita (BNS), gives a beacon of hope for the same-sex individuals by defining "gender" in Section 2(10) of the BNS to encompass "transgender" in addition to "male" and "female," there is a clear recognition and validation of the diverse identities within the trans community[11]. This progressive legislative move demonstrates the evolving understanding and inclusion of the LGBTQ+ community within the country's legal system.

As we explore the situation in India, it is crucial to gain insights from the progress and obstacles encountered in the United States concerning the legalization of same-sex marriage. The journey towards marriage equality in the United States has been difficult and filled with ups and downs.[12] It all began with the iconic Stonewall riots of 1969, which sparked the gay rights movement. In the following decades, activists tirelessly fought for fundamental rights, such as decriminalizing same-sex relationships and eradicating discrimination. However, it was not until the late 1980s that the battle for same-sex marriage truly gained significant traction. It was in 1993, when a case in Hawaii challenged the exclusion of same-sex couples from marriage, that the issue was thrust into the national spotlight, igniting a fierce debate across the country. Despite attempts to impede progress, such as the enactment of the Defense of Marriage Act in 1996, the tide turned in 2013 with the landmark United States v. Windsor decision. Finally, in a historic victory, the Supreme Court's ruling in Obergefell v. Hodges [13]in 2015 made same-sex marriage legally recognized.

Steps to legalizing Same-Sex Marriage:

Over the years, acceptance of homosexuality has also grown in India. A recent poll conducted by Pew Research Center in May 2023 showed that 53% of adults say same-sex marriage should be legal, while 43% oppose it.[14]

In order to successfully legalize same-sex marriage in India, a holistic and well-planned approach must be taken to overcome the numerous legal, social, and cultural challenges. Moving forward, a careful and strategic plan is necessary to pave the way towards equality for all.

To pave the path towards progress, a careful and balanced approach must be taken in drafting legislation to address the needs of the LGBTQ+ community while also considering the concerns of those with traditional views on marriage. This may involve enacting laws that legally recognize same-sex marriage while respecting religious institutions' freedom to define marriage based on their beliefs. The enactment of a secular law similar to the Special Marriage Act to legalize same-sex marriage, which does not infringe on religious rights in India, is one of the most probable solutions.

Conclusion:

The journey to legalize same-sex marriage in India is complex, involving legal, societal, and cultural factors. Despite milestones like the 2018 Navtej Singh Johar ruling decriminalizing same-sex relations, recognizing same-sex marriages remains a challenge.

In addition to marriage, crucial considerations such as inheritance, adoption, and healthcare rights must be formally recognized and safeguarded by the law to ensure equitable treatment and security for all members of society. Achieving this goal calls for a comprehensive approach to legislative revisions, one that fully acknowledges and tackles the varied needs and obstacles encountered by the LGBTQIA+ community. To enact national legislation and government policies to protect the rights of same-sex couples and prohibit discrimination based on their sexual inclinations and gender specification, such as medical-claim benefits to spouse, pension benefits, ex-gratia employment, tax reduction benefits under the Income Tax Act, and replacing ‘name of husband or wife’ with ‘name of spouse’ in various government schemes and policies.

While Legalization of same sex marriage may not currently be widely accepted in the social and political sphere of India, persistent discussion, activism, and legal examination, will undoubtedly lead to advancements in the future.

As we ponder the question, "Same-Sex Marriage in India: Where Do We Stand and Where Do We Go from Here?" it becomes evident that our journey is more than just a legal pursuit; It is a collective effort to uphold justice and ensure equality for all individuals. It is a call for societal transformation of the fundamental principles of equality and human rights.

References:

Citation Style Used: Bluebook 20th Edn

Articles:

·         Dr Somlata Sharma, Legal recognition and protection of same sex relationships in India: an analysis (2023)

·         Aneesha Sulthana S H, Shabu A. & Thomas S, (2021) Acceptance of homosexuality among Indian youth. International Journal of Indian Psychology, 9(1), 346-361.

·         Bhogle Satchit, The Momentum of History – Realising Marriage Equality In India (2020)

·         Maurya, A (2018) Is legalisation of homosexuality a threat to Indian society?

·         Banerjee, K. (1999). Gender stratification and the contemporary marriage market in India. Journal of Family Issues, 20, 648

·         Desai S. and Andrist L. (2011). Gender Scripts and Age at Marriage in India, Demography, 47 (3),667–687

 

 

 


[1] The legal Information Institute, https://www.law.cornell.edu/wex/marriage#

[2] Prasad, A. (2022, July.). Homosexuality in India – The Invisible Conflict. Research Gateway https://www.researchgate.net/publication/361792971_Homosexuality_In_India_-_The_Invisible_Conflict

Last visited on 14-02-2024

[3]  Fernandes, A. (2023, March 13). Which countries in the world allow same-sex marriages? DH Deccan Herald https://www.deccanherald.com/india/which-countries-in-the-world-allow-same-sex-marriage-1199817.html

Last visited on 14-02-2024

 

[5] Navtej Singh Johar v. Union of India 2018 (10) SCALE 386

[6] Ruth Vanita writes: How two laws and religion in India are open to same-sex marriage Indian Express https://indianexpress.com/article/opinion/columns/ruth-vanita-writes-laws-religion-india-same-sex-marriage-8318389/

Last visited on 10-02-2024

[7] Explained: Why same-sex couples in India are seeking conjugal rights when homosexuality is decriminalised Wionews https://www.wionews.com/india-news/explained-why-same-sex-couples-in-india-are-seeking-conjugal-rights-when-homosexuality-is-decriminalised-583772 Last visited on 09-02-2024

[8] National Legal Services Authority vs. Union of India AIR 2014 SC 1863; (2014) 5 SCC 438

[9] Suresh Kumar Koushal & Anr vs Naz Foundation & Ors AIR 2014 SUPREME COURT 563,

[10]   Supriyo @ Supriya Chakraborty & Anr v Union of India (2022) Writ Petition (Civil) No. 1011 of 2022

[11] The BNS: A missed opportunity for gender inclusivity and LGBTQ+ rights Deccan herald https://www.deccanherald.com/opinion/the-bns-a-missed-opportunity-for-gender-inclusivity-and-lgbtq-rights-2694568 Last visited on 01-02-2024

[12] JAE WON SHIN COMING OUT OF THE CLOSET: A COMPARATIVE ANALYSIS OF MARRIAGE EQUALITY BETWEEN THE EAST AND WEST. https://nyujilp.org/wp-content/uploads/2017/11/NYI404.pdf

 

[13] 135 S. Ct. 2584

[14] 53% of Adults in India Support Legalisation of Same-Sex Marriages, Finds Pew Research Center: The wire https://thewire.in/lgbtqia/53-of-adults-in-india-support-legalisation-of-same-sex-marriages-finds-pew-research-center last visited on 14- 02-2024

 

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