Author: Aarvi Rahul Shah, Student at Veer Narmad South Gujarat University, Surat
Same sex marriage or marriage between two males or two females is not yet recognized in the Indian society. Even though section 377 of Indian penal code was decriminalized, the marriage between people of same sex is still not legal in India. The centre gave its views that the decriminalization of section 377 of IPC does not automatically gives right of marriage to the same sex couple. In India the marriages between two persons are governed by the personal codified laws and these personal laws do not contain any provision for the same sex marriages. The Indian society considers same sex marriage as an anathema to their cultural ideology, and thus denies to accept their rights at par with others. When we look at the concept of same sex marriage through a global point of view then, same sex marriages are not alien to other parts of the world. Many countries have legally recognized the same sex marriages and have given them equal rights and opportunities.
This article throws light on the inequality faced by the same sex couples in the patriarchal society and the need of providing them with equal rights and opportunities. As we live in a modern 21st century society, the utmost need is felt for the equal recognition of LGBTQ community as well as homosexual marriages.
The supreme court of India has through a long history of jurisprudence, has passed judgments aimed at protecting couples and relationships that went against societal norms. From protecting the inter-caste couples, to interfaith couples and even interracial couples, the constitution has granted people equal protection from violence and recognized that, in a multi-faith and secular nation like ours, Indian minorities deserve this special protection when attacked by orthodox social forces. In the case of Navtej Singh Johar, a dancer who identified as belonging to the LGBTQ community, filed a writ petition in the Supreme Court in the year 2016, seeking recognition of the right to sexuality, right to sexual authority and right to choice of sexual partners as a right guaranteed under article 21 of the Indian Constitution. In the year 2018 the Supreme Court of India in the case of Suresh Kumar Kaushal V/s Naz Foundation upheld the validity of section 377 of IPC that criminalizes the carnel intercourse “against the order of nature”. In a landmark judgment the Supreme Court chose to lift the colonial-era ban on the gay sex. After this historical judgment the same gender couples can now live together without any fear of attribution but on the sad note their union is still not recognized by law. As the Constitution of India embodies the provisions for the “right to equality” for all its citizens, but do we see the same equality in reality? Although the same gender couples are given the freedom to live together, build a relationship without any bias to the gender still they are still not given the equal recognition when it comes to marriage.
Having been denied for decades, their freedom to express themselves it is high time now that the LGBTQ community is pushed a step forward to “eligibility to get married”. Marriage laws in India only recognizes heterosexual unions, depriving same sex couples of state benefits as well as social and legal benefits and recognition that a married couple enjoy. In a very recent phenomenon three petitions were filed in Delhi High court and the center had said that even though the same gender relationships have now been recognized, but their inclusion in the personal laws has been a difficult endeavour. Even though the homosexuality has been decriminalized, the marriage between two men or two women has not yet found a place in the personal laws, the reason being that the age old Hindu rituals and customs do not tend to accept the union between the persons of same gender. The age old customs only recognize and bless the marital union between a biological man and a biological woman.
Same gender marriages have now been recognized and given equal importance in many countries of the world and first of that being DENMARK. After Denmark UNITED KINGDOM and UNITED STATES OF AMERICA followed the path and legalized the same sex union. While India has decriminalized the homosexuality, it still doesn’t recognize the marital union of same sex couples on the grounds of “preventing the sanctity of marriage”. But in true sense it is denying the fundamental rights to its own citizens.
HOMOSEXUALITY IN ANCIENT INDIA
The Indian Mythologies like Ramayana and Mahabharata and even the temples of Khajuraho give us a prime example that the homosexuality was in practice in ancient India and was even equally recognized unlike the present scenario. The scriptures of Khajuraho temple depict the images of women embracing other women and the men displaying their genitals each other. Scholars have explained that this was the act of acknowledgement of homosexual relationships. Another Indian epic Mahabharata has an interesting story about the character named Shikhandini. Shikhandini was a transgender warrior and the daughter of King Dhrupada. Shikhandini was responsible for the defeat and killing of Bhishma. The Mahabharata did not only include a transgender character but narrated it as a strong and a fierce warrior. And today, as we live in the 21st century the transgender community is seen differently and inferior than other genders. We hardly see any transgender who is given any position in jobs, educational institutions etc. Yes the times have changed and people are welcoming the transgender community in all walks of life, and to name a few Madhubai Kinnar is India’s first transgender mayor from raigarh, Laxmi Narayan Tripathi India’s first transgender Asia-Pacific representative at UN, Joyita Mondal India’s first transgender civil judge, but still there is a long way to pave and the battle for equal recognition continues.
SAME-SEX MARRIAGE AND PERSONAL LAWS
In India marriages and weddings have a strong religious and cultural significance as well as social importance. In India Hindus, Muslims, Christians have their different personal laws in relation to marriage, succession etc. The Hindu Marriage Act governs Hindus, Sikhs, Jains and Buddhists. All Indian Personal laws appear to envisage marriage as only a heterosexual union. The recognition of same sex marriage under these personal laws is quite a difficult task as the people of these religions tend to follow the ongoing and age old customs and rituals and see the homosexual unions as a big turndown. If we want to include the homosexual union in the pursuit of the personal laws then many significant changes have to be made in the provisions of these personal laws. The Bombay High Court in the case of State of Bombay V/S Narasu Appa Mali, held that personal laws cannot be tested against the touchstone of Fundamental Rights, moreover the traditional Hindu laws have not provided the provisions for same sex marriages even though the traditional literature of India has many references to the same sex relationships. To give the recognition to homosexual unions various approaches in the form of amendments in the personal laws need to be made. The difficulties in this approach apply to personal laws as the final course would be the statutory amendment in the personal laws but the same would be difficult to achieve in practice.
CIVIL UNION: A FAIR ALTERNATIVE?
One alternative is to seek the legal recognition of homosexual couples not through marriages but civil unions. The advantage of the civil union being that it faces less opposition, atleast on the religious grounds. However, only giving an option of civil union and excluding the same sex marriage is in itself remarkably discriminative. If this approach of civil union were to be adopted in India then it would be necessary to enact a new law governing civil union. Moreover along with the new enactment the prevalent regulations of the Indian Succession act 1925, Guardians and wards act 1890 etc. would also be required to get amended. Thus on tactical grounds this would amount to become a complicated and lengthy process.
SPECIAL MARRIAGE ACT
The Special Marriage act of 1954 was enacted with the main aim of dealing with the inter-caste marriages and inter-religion marriages. Nowadays the youth have their own saying and chose to marry anyone of their choice considering the compatibility between them rather than marrying someone only on the basis of similar caste or religion. All the religions are equal and there should be no barrier on inter-religion marriages. The underlying requirement for a valid marriage under this act is the CONSENT of both the parties to the marriage. Caste, religion, race etc. can’t act as hurdle if both the parties to the marriage are willing to marry each-other. With the emergence of the Special Marriage act in India, many noteworthy changes have been seen in the Indian Succession act. The Indian Succession Act now recognizes the marriages under the Special marriage act and the children of the persons married under this act or the marriage registered under this act will be subject to the provisions of the Indian Succession act in the case of succession of property.
Yes the Special Marriage Act allows people belonging to any religion, caste, race etc to marry each-other with the consent, then why are the homosexual unions are not included in the Special Marriage Act? If the Special Marriage Act is said not to discriminate people on the basis of their caste and religion then why does there exists such discrimination for the LGBTQ community? If the homosexual unions are given recognition under the Special Marriage act then it will result into landmark changes in the lives of LGBTQ community. They will finally have the legal recognition that they have been asking for years. In a recent happening, the Delhi High Court on response to the two separate pleas filed by homosexual couples to get married under the Special Marriage Act said that marriage is not defined under the special marriage act and everyone interprets what marriage is in accordance with the customary law. The homosexual couples who want to get married under the special marriage act are denied the rights of their union and because of this they are denied many other rights in the form of owing the house together, having a joint insurance policy, joint bank accounts etc. If the Special Marriage Act applies to all the people regardless of their caste and religion then the marriages under the special marriage act shall not discriminate on the basis of sexual orientation of the people and shall apply to everyone irrespective of their caste, religion, race and sexual orientation.
The legalization of homosexual relationships in itself won’t end the discrimination faced by people who are in a long term relationships with others of the same sex. It would require the legalization of these long term sane sex unions in par on par with the heterosexual marriages. There are captivating practical legal benefits such as succession, maintenance, pension right etc. which are available to the married couples which are denied to the homosexual couples as their relationships are not legally recognized. In addition to this the heterosexual marriage does not essentially differ from the same sex marriage from the psychological point of view. If the homosexual unions are legalized, then that will amount to huge benefits in terms of social and health benefits that the children of the homosexual couples are likely to benefit in numerous ways. The very recent event of the Madras High Court judge seeking psychological help to better understand the same sex relationships has left everyone spellbound. The learned judge said that he wants to have a better understanding of the same sex relationship before passing any judgment. This sets a strong example that it is not the lesbian or a gay person who need any psychological treatment but it is the people who think that being lesbian or gay is just a phase or a disease. We have reached a peak where the LGBTQ community now needs equal recognition to stand at par with everyone. The same sex marriages thus need to be legalized for the want for equality in every flied.
 Navtej singh Johar and ors. V. Union of India thr. Secretory Ministry of Law and Justice on 6th sept, 2016.
 Naz Foundation V. Government of NCT of New Delhi and ors. 160 Delhi Law Times 277