Legality of same sex marriages in India by Ashish Srivastava

This research paper aims to make people aware of the rights of the LGBT community & also the present status of the legality of same-sex marriages in India.

CHAPTER-1: INTRODUCTION

Human beings are the most ironical character in this world. We are very much obsessed with the concept of equality but when it comes to applying the equality concept in real life situation we tend to hold our steps. Everywhere we hear people talking about equal opportunities, equal rights but do they really mean it.No, a big no to it and the classic example of it is the ignorant behaviour of the society towards the transgender community, bisexual community etc collectively known as LGBT community. There are many no. of cases in our day to day lives where the LGBT community have suffered discrimination just because of their sexual orientation is different from that of common people. Now it has become very important for me to make you all aware about some[1] home truths regarding being an LGBT in India. Today, homosexuality and uncanny people may be acceptable to some Indian youths than before but when it comes to the acceptance of their sexuality and freedom to openly express their gender choices within the boundaries of family, school or home still remain a far-fetched dream or a constant struggle for LGBT ( lesbian, gay, bisexual, transgender) people.

In Urban India where social media and other awareness programs have increased the awareness of LGBT Rights, the scenario looks more upbeat for gay men than for transgender people or lesbian women. While urban LGBT voices that are heard through several online platforms forming an important part of LGBT activism, these expose only a small part of the diverse challenges faced by the community. Far away from gay pride parades, meet-ups and heated discussions on Twitter, families in rural India have their own ways of dealing with LGBT individuals. In some parts, secret honour killings are planned so that the only way for a young gay man to survive is to run away in the cover of the night from the scene to some city, with no money or social support.

In other parts of the country, lesbian women are also subjected to family-sanctioned corrective rapes, which are often committed by their own family members. Vyjayanti Vasanta Mogli, a transwoman LGBT activist and public policy scholar at Tata Institute of Social Sciences, Hyderabad, who has openly spoken about her abuse at school, the discrimination that she had suffered long back says that lesbian women and transmen in rural areas end up at the bottom of the hierarchy when it comes to basic human rights within the unit of family and village.

She also talks about B.R. Ambedkar sayings when talking of the rural socioeconomic environment. “Ambedkar thought of the village as a unit of violence and that is most true for LGBT issues,”. “Village medics and babas often prescribe rape to cure lesbians of homosexuality. Refusal to marry brings more physical abuse. Stories of family acceptance that you see on TV and other media are more of an urban phenomenon.”Even in educated urban areas of the country, suicides by lesbian women are not very uncommon. It comes as no surprise to us that a tribunal recently ruled that the only danger to lesbians in India is from their own families.

The recent study has found that there are various factors responsible for the stigmatization of the LGBT communities but one of the most important factors of all is the parent’s reaction towards homosexuality. The study goes on to further conclusion stating that most LGBT people are acceptable to the families only if they are ready to behave like heterosexuals. Mogli, one of the members of LGBT community warns people about the widespread practices of forcing the members of LGBT community for ‘corrective therapy’ by their family members after she came out of a psychiatric ward. She shared her horror feelings when she was being kept in a psychiatric ward and was treated like a criminal. All these instances show how the LGBT community are often being subjected to various kinds of discrimination in the country like India.

The main objective of this research paper is to make people aware of the rights of the LGBT community and also the present status of the legality of same-sex marriages in India. This research paper also aims to provide some suggestive measures for the lawmakers as to in which manner the legal recognition can be given to the community of LGBT community. We the people of India are generally very much concern about the concept of equality and whenever it comes to apply it in practical life we always tend to hold our step back. This research paper also aims to cover all the difficulties that may come in giving legal recognition to the community of LGBT and how the suggestive measures mentioned in this research paper will outweigh all those obstacles.

CHAPTER-2: LITERATURE REVIEW

• [2]Trehan,Anil(2018) observed that on the basis of the whole discussion on the aspect of same-sex marriage that is should it be legalised or not, this is more of a religious debate than a political one, in which I have given my arguments in favour of decriminalizing it, I finally conclude by saying that homosexuality is not an offence, it is just a way of pursuit of happiness, a way to achieve sexual happiness or desire. I can see absolutely no reason, apart from blind prejudice, which prevents two gay people going through a civil ceremony which will give them the rights and securities which heterosexual couples enjoy. Marriage is a sign of commitment and love. If two men or two women want to show that commitment, how does that destroy or damage the ideals of marriage? In my view, it clearly demonstrates it. In today’s era, we are living in an age which respects the individual’s right to choose. India is supposed to be the land of the free. In our society, people have branded homosexuals as queer. Yet homosexuality is not new nor is it against the Indian culture, it has always existed and with much lesser prosecution, than under Section 377 IPC, which is based on the British Offences against the Persons Act.
• [3]Khanna, Ananya (2015) observed that same-sex marriages should be given a legal status in India. Homosexuals often feel like an outcast in society. The best way they can integrate completely into the society would be by legalising their relationships. That is, marriage will help eliminate the stigma attached to being a homosexual. By giving them a married couple status, not only do they get social acceptance, but also the benefits a married couple enjoys in India: social security, property inheritance, right of raising a child, health care facilities, etc. Forcing them to marry out of their choice and against their sexual inclination not only disturbs their life but also destroys the life of their partner.

CHAPTER-3: LAW REGARDING SAME-SEX SEXUAL ACTIVITIES

• HISTORY– The erotic sculptures of Khajuraho Temples are famous for depictions of homosexual activity. Historians have long argued about the perception of pre-colonial Indian society towards LGBT people and further argued that they did not criminalise same-sex relationships, nor did they view such relations as immoral or sinful rather they were living a normal life as that of common people. Transgender individuals held high positions in courts of Mughal rulers in the 16th and 17th centuries. Hinduism, India’s largest religion, has traditionally portrayed homosexuality as natural and joyful, though some Hindu texts do contain the contention against homosexuality. Hinduism also acknowledges a third gender known as hijra. Some other classical examples can also be seen in Mahabharata in which genders such as Shikhandi who is born female but identifies as male and eventually marries a woman. Bahuchara Mata is the goddess of fertility, worshipped by hijras as their patroness. Modern societal homophobia was introduced to India by the European colonisers and the subsequent enactment of Section 377 by the Britishers which stood for more than 70 years after Indian independence.
• CONTEMPORARY TIMES– In 2003, the Indian Government said that legalising homosexuality would “open the floodgates of delinquent behaviour”[4]. In 2009, the Delhi High Court decision in Naz Foundation Govt. of NCT of Delhi[5] found Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution. Section 377 stated that: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine,” with the added explanation that: “Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. But subsequently, in another case, namely Suresh Kumar Kaushal v. Naj foundation[6],2013 case by the Supreme Court of India overturned the Delhi High Court case Naz Foundation v. Govt. of NCT of Delhi and reinstated Section 377 of the Indian Penal Code. Supreme court also stated that judicial intervention was not required in this issue and the court finally decided to recriminalize sexual intercourse “against the order of nature”.In another case of Fazalrab v. State of Bihar[7] the Supreme Court was dealing with a case where a man had homosexual relations with a boy with the consent of the boy. The Supreme Court in 1983observed that: ‘the offence is one under Sec. 377, IPC which implies sexual perversity.[8]But in the year 2015 Shashi Tharoor, a member of the Indian National Congress party, introduced a bill for the repeal of Section 377, but it was rejected in the House by a vote of 71-24.

In August 2017, the Supreme Court unanimously ruled that the right to individual privacy is an intrinsic and fundamental right under the Indian Constitution held in the case of Puttaswamy v. Union of India.[9]The Court also ruled that a person’s sexual orientation is a privacy issue, giving hopes to LGBT activists that the Court would soon strike down Section 377.[10]

In January 2018, the Supreme Court agreed to refer to the validity of Section 377 to a large bench and heard several petitions regarding it. In response to the court’s request for its position on the petitions, the Government also stated that it would not oppose the petitions, and would leave the case to the discretion of the court. A hearing began on 10^th July 2018. Activists view the case as the most significant and “greatest breakthrough for gay rights since the country’s independence”, and it could have far-reaching implications in a long run for other Commonwealth countries that still does not accept the concept of homosexuality. And finally on 6^th September 2018, in the case of Navtej Singh Johar & Ors. v. Union of India[11] the Supreme Court issued its verdict. The Court unanimously ruled that Section 377 is unconstitutional as it violates the fundamental rights of autonomy, intimacy and identity, thus legalising homosexuality in India. The Court explicitly overturned its 2013 judgement. Supreme court also stated that Criminalising carnal intercourse is irrational, arbitrary and manifestly unconstitutional. Supreme court also guided the government to create public awareness regarding the decriminalisation of homosexuality and to eliminate the stigma members of LGBT face.

CHAPTER-4: INTRODUCTION TO THE CONCEPT OF MARRIAGE AND RIGHTS PERTINENT TO IT:

Marriage is a socially and ritually recognised institution, traditionally between a man and a woman. Marriage is an integral part of every person’s life.[12] It plays a very vital role in human beings life. It is through marriage only that the human race has propagated future generations. Marriage is the most important institution of human society. It is a universal phenomenon and works as the backbone of human civilisation. We can say that Marriage is as old as the institution of the family. Both these institutions are vital for the existence of the society. The family depends upon the Marriage. Marriage regulates sex life of human beings, thereby giving them a chance to procreate, thus aiding the survival of the human race. Marriage creates new social relationships and reciprocal rights between the spouses.

Each and every one of us has the Right to Marry. Right to marriage is provided under the human right charter that to under the heading of” Right to have a family”. In the Indian Constitution, this right has not been mentioned specifically. But it is interpreted under Article 21 that Right to Marry is a universal right. It is available to all persons but whether it includes same-sex marriage still remain a big question. Marriage right is recognised at international level but in India, there is no special law for marriage right. Marriage right is mentioned under various covenant but it does not include a person of same-sex marriage. In the very famous case of Lata Singh v. State of Uttar Pradesh[13] the Supreme Court viewed the right to marry as a component of right to life under Art 21 of Indian Constitution the court observed that: “This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste marriage the maximum they can do is that they can cut off social relations with the son or daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste marriage” Indian society is a conservative one. Still, people are not open to new ideas. Even in contemporary times when the corners of the whole world are expanding, people in India still hesitate to establish lifelong relations with people or their castes and religions. In such a scenario where the minute issue of caste is still considered a taboo, accepting same-sex marriages becomes all the more difficult. A society where people are killed in the name mixing caste or religion, same-sex marriages are inconceivable. But what about these LGBT community people. Are they not the living species.

Don’t they have feelings in them? Indeed they do have then why they are always being subjected to various forms of discrimination. All these questions still remain unanswered.

CHAPTER-5: ISSUES AND CHALLENGES OF SAME-SEX MARRIAGES

The outbreak of HIV/AIDS which has been spread in the western countries to a great extent by homosexual activity between males has led to allegations and counter-allegations. Same-sex acts are punishable by death in nine countries around the world.[14] Present legal status of same-sex marriage in India is that Homosexual intercourse was a criminal offence in India until 2009 under Section 377 of the Penal Code. This made it an offence for a person to voluntarily has carnal intercourse against the order of nature. Whilst convictions under this section were rare, with no convictions at all for homosexual intercourse in the twenty years to 2009, Human Rights Watch have said that the law was used to harass, HIV/AIDS prevention activists, as well as sex workers, men who have sex with men, and other LGBT groups. The group documents arrests in Lucknow of four men in 2006. But with the recent judgement of Navtej Singh case, consensual sex between two homosexual was legalised. It was a great victory and relief for LGBT people but it was not the final victory. We need to take into consideration the fact that the law is still silent on the legality of same-sex marriages. Apart from the harsh legal scenario, homosexuals face social stigma as well.

Same-sex marriages are still unimaginable as an instance of sexual relations between a couple of the same sex draws hatred and disgust. There is an entrenched system of dowry in the Indian culture to protect which the system of same-sex marriages are discouraged. If both parties are male, or if both parties are females, who would pay a dowry to whom will be a big question. The Indian society is steeped in tradition and this reflects on the legal system as regards inter-personal relationships. It is a need of the situation to give legal recognition of long-term same-sex unions, on par with heterosexual marriages.[15] A further utilitarian argument was made after a detailed survey of social science research on the subject that same-sex and heterosexual relationships do not differ much in their essential psychosocial dimensions, that marriage confers substantial psychological, social, and health benefits and that same-sex couples and their children are likely to benefit in various ways from a legal recognition of the homosexual relationship as marriage.

CHAPTER-6: LEGAL RECOGNITION TO SAME-SEX MARRIAGES: A NEED OF PRESENT SITUATION

As I have mentioned above that human beings are the most ironical character is this world and the article that I came across has given even more weight to my claim. While after the judgement of decriminalising consensual sexual acts between two adult homosexuals, everyone was enjoying the victorious moment, a surprising news came into the picture. If we do not have any problem with the consensual sexual act of two adult homosexuals then why we are opposing the contention of giving legal recognition to same-sex marriages.[16] A government functionary, who spoke on the condition of anonymity, said, “Decriminalisation of same-sex acts was fine but the government would oppose any demand to legalise same-sex marriage.”

A day after the Supreme Court read down Section 377 of the Indian Penal Code, India LGBT people say that the next step in the legal fight for them will be for legal recognition of same-sex marriage and some civil rights such as inheritance of property, and sharing insurance etc. But the union government seems to be unhappy about it. The Union government, which left it to the court to decide on the legality of section 377, has indicated that it is likely to oppose any petition for same-sex marriage. If equality of LGBT persons is now a fundamental right, then right to marry, bequeath property, share insurance (medical and life) are all part of this. If we are very much concern about the rights of LGBT people, about their respect and dignity then it is unconstitutional and insolent to deny that.

If we really want to adhere to the principle of equality, we must take into consideration the civil rights of LGBT people.[17] We must also take into consideration giving legal recognition to the relationship of LGBT people by recognizing same-sex marriages. In India, marriages and weddings are considered as a sacred thing and it is culturally as well as socially important. Marriage is considered to be a sacrament and the religious ceremonies are an essential part of the marriage. This perhaps explains the many instances of lesbian marriages, including the performance of religious ceremonies, the exchange of garlands in temples or quasi-legal friendship contracts in several reported cases. For example, in 1988, two policewomen married each other in a Hindu ceremony. Though their marriage could not be registered and they were suspended from their jobs, their marriage was accepted and supported by their families and community. It is interesting that the various reported lesbian marriages have been largely between small-town, lower-middle class or between non-English speaking women who are not connected to the LGBT movement.

In this backdrop, the most satisfactory course of action would be the recognition of same-sex marriages under Indian personal marriage laws and it is, in fact, possible too. As we all know that in India, Christians, Muslims and Hindus have different laws in relation to marriage, succession etc. The Hindu Marriage Act that governs Hindus, Sikhs, Jains and Buddhists state that a marriage may be solemnised between any two Hindus. It also specifically provides that the bridegroom should have attained the minimum age of twenty-one and for the bride, it is eighteen. The Christian Marriage Act provides that the age of the man shall be twenty-one and the age of the woman eighteen. Since Muslim marriages are not governed by a statute, there is no statutory definition of ‘marriage’, but in general, it is considered to be a contract for the purpose of procreation. Thus, all Indian personal laws appear to as only a heterosexual union. But if we ponder upon the present personal laws we may think of giving legal recognition of same-sex marriages and some of the suggestive measures are recognition of same-sex marriages can be obtained by –

• Interpreting the existing laws to permit same-sex marriages.
• Considering the LGBT community as a separate community, the customs of which permit same-sex marriages.
• Reading down the Hindu Marriage Act, 1956 to allow same-sex relationships, on the ground that it would otherwise be rendered unconstitutional, or amending the Act to permit same-sex relationships.

CONCLUSION:

Thus if we really want to make this country equal in a literal sense we have to take some bold steps towards LGBT community. As we know that day by day the people of India is slowly moving towards the LIBERAL concept, good days may not be too far from us. People must be ready to accept the new ideas and then only we’ll be able to make this country a better place to live in.

By – Ashish Srivastava

NLU Ranchi

REFERENCES:

PRIMARY SOURCES:

• THE HINDU MARRIAGE ACT, 1955.
• THE INDIAN PENAL CODE, 1860.
• THE CONSTITUTION OF INDIA, 1950.

SECONDARY SOURCES:

• Diwan, Paras, Law of Marriage and Divorce (Delhi: Universal Publishing Co., 2002).
• Ravichandran, N. “Legal Recognition of Same-sex Relationship in India”. Journal of India Law and Society, Volume(5). retrieved from http://docs.manupatra.in.
• Gregory M. Herek, Legal Recognition of Same-Sex Relationships in the United States: A SocialScience Perspective, 61(6) Amer. Psycho. 607-621 (2006).
• (2017, March, 9th). Issues and challenges of same-sex marriages in India. Retrieved from https://blog.ipleaders.in.
• Puja Mondal, “Essay on Marriage: Meaning, Functions and Forms,” available at http://www.yourarticlelibrary.com/marriage/essay-on-marriage-meaning-functions-and-forms/8592.
• After historic section 377 verdict, govt. set to oppose same-sex marriages. (2018, October 13th). retrieved from hindustantimes.com.

WEBSITES REFERRED:

• scconline.com.
• manupatra.in.

[1] Patel, R. (2016, August 27^th).Being LGBT in India: Some home truths. Retrieved from https://www.livemint.com

[2] Trehan, Anil. (2018, October 21). Legal recognition of same-sex marriages in India: An Overview. Retrieved from http://www.supremecourtcases.com

[3] Khanna, Ananya. (2015, January 12). Same-Sex Marriages In India. Retrieved from https://www.lawctopus.com

[4] Suresh, Mayur. (2018, September 6^th).”This is the start of a new era for India’s LGBT Communities “

[5] (2009) DLT 27

[6] CIVIL APPEAL 10972 OF 2013

[7] AIR 1983 SC 323

[8] (2015, December 19^th).”India parliament blocks MP’s bill to decriminalize gay sex” retrieved from https://www.rappler.com

[9] (2017) 10 SCC 1

[10] Ganguly, Meenakshi. (2017, August 24^th).” Government Should Now Repeal Law Criminalizing Gay Sex” retrieved from https://www.hrw.org

[11] W.P.(Crl.) No. 76 of 2016

[12] Puja Mondal, “Essay on Marriage: Meaning, Functions and Forms,” available at http://www.yourarticlelibrary.com/marriage/essay-on-marriage-meaning-functions-and-forms/8592

[13] AIR 2006 SC 2522

[14] Abhyu. (2017, March, 9^th). Issues and challenges of same-sex marriages in India.Retrieved from https://blog.ipleaders.in

[15] Gregory M. Herek, Legal Recognition of Same-Sex Relationships in the United States: A Social Science Perspective, 61(6) Amer. Psycho. 607-621 (2006).

[16] After historic section 377 verdict, govt. set to oppose same-sex marriages. (2018, October 13^th). Retrieved from www.hindustantimes.com

[17] Ravichandran, N. “Legal Recognition of Same-sex Relationship in India”. Journal of India Law and Society, Volume(5). Retrieved from http://docs.manupatra.in/newsline/articles/Upload/B07BDF52-0AA4-4881-96AC-C742B9DB217D.pdf

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