Need For Legality Of Same-Sex Marriage
This article “Need For Legality Of Same-Sex Marriage” deals with the importance of marital status, right to marriage, view under Personal Laws and Special Marriage Act and Legal Obligation. Introduction Although the same-sex community is free of criminalisation what about its marital status? Is there any law saying that same-sex couple is the same as heterosexual couple. This… Read More »
This article “Need For Legality Of Same-Sex Marriage” deals with the importance of marital status, right to marriage, view under Personal Laws and Special Marriage Act and Legal Obligation.
Introduction
Although the same-sex community is free of criminalisation what about its marital status? Is there any law saying that same-sex couple is the same as heterosexual couple. This article talks about the importance of marital status in general and why homosexuals do need such status. Further, the article explains under which law can the homosexuals convey their marital status and what has to be done.
Apart from that, the article focuses on special marriage act too with respect to the inclusion of same-sex marriage. The article has, in brief, discussed the right to marriage, the community of LGBT in India and the legal obligation to provide them with the marital status.
In a conservative society like India, it is a curse to be queer. Till recently, the law criminalised homosexuality, but thoughts are laid upon the question as to the marital status of such beings. The focus of the judgment Navtej Singh Johar v. Union of India was mainly on the decriminalisation of section 377 or can also be considered as decriminalising the consensual sex between adults who are not heterosexual. So the research below mainly talks about same-sex marriage and legal recognition as per the personal laws.[1]
I. Is marital status important for LGBT?
Marriage is defined as a legal union or a contract between two people and same-sex marriage is defined as “The ceremonial union of two people of the same sex; a marriage or marriage-like relationship between two women or two men”.[2]
Marriage as well as its legal recognition of same-sex or LBGT unions is important for their personal life and is useful for avail certain basic amenities and benefits. In the sense of personal and social life, it is observed that mere acceptance of their marriage and giving it a legal recognition will render respect and dignity to that community, hence, their inclusion as a part of society.
The legal recognition of same-sex marriage will also help them with other issues like adoption facility, maintenance and allowances, property rights and succession. Apart from the above, the economic rights that are derived out of workmen’s compensation act, pension rights and employee provident fund are also linked with the marital status of an individual.[3]
As rightly stated by Chief Justice Deborah Poritz in Lewis v. Harris[4], the same-sex couples are also entitled to the title of marriage, when the majority questioned as to what is there in the name. The minority was of the view that without the title of marriage, the benefits and rights were a failure on the part of the legal system to treat equally and give equal protection to all.
The fact that such judgment was denying the title of marriage due to reasons that the children of such couple would mentally suffer and differ to that of a heterosexual couple was altogether disproved and opined that marriage by a same-sex couple was a fundamental due process right.[5]
II. Right to Marriage
Every person has a vested right to marry and have a family, which has been recognised in article 16 of the Universal Declaration of Human Rights.[6] Further in India, the Supreme Court in the Hadiya case declared that right to marriage had been observed under the right to life, as it is the individual’s integral choice and society has no role to play.[7] The same is decided in the Privacy case, where it is considered that family, marriage and sexual orientation are integral to the dignity of the individual and hence are private in nature. [8]
Taking into consideration above facts it is contended that marriage being a private issue and state must take measures to assist the individuals and set up a framework for the legalisation of marriage rather than act religiously and prohibit any person from marrying.
III. Same-Sex Marriage under Personal Law
1. Hindu Personal Law
In Hindu Marriage Act, 1955, the word marriage is not defined. It was never mentioned in the said act that marriage is between a man and a woman. Rather it mentions them as two Hindus.
And moreover, the law is not expressly prohibiting the concept of same-sex marriage.[9] But the usage of terms like “Bride” and “Bridegroom” in section 7, made the language of the act heteronormative in nature.[10] Therefore, as the act in itself is so flexible, merely altering the terminology will be sufficient for removing the heteronormativity of the said act and thus, allowing the homosexuals to marry as per the provisions of the Hindu marriage act.
2. Christian Personal Law
In the Indian Christian Marriage act 1872, nowhere the homosexuals were prohibited from marriage. Similar to the Hindu Marriage Act, marriage was not defined in this act. But it never used the terms Bride and Bridegroom, which makes it flexible enough to include homosexuals into its purview. The solemnization of the marriage and its legality as per section 4 and 25 framed it as the marriage between two persons.[11] Thus, Christian personal law was open and flexible enough to include same-sex marriages.
But the problem with this act was that the divorce act of India uses the heteronormative tone and as the dissolution of Christian marriages is done as per the provisions of that act[12], it is required that the divorce act be interpreted in such a manner as to include homosexuals.
3. Muslim Personal Law
The concept of homosexuality is considered to be prohibited in Islam[13] likewise in Christianity. However, the western nations like the US, which have declared that homosexuality as legal are mainly Christianity followers.[14] Although, as the procedure laid down in the Quran for marriage is heteronormative, some claim that homosexuality is expressly prohibited. While others say that there is no express prohibition but just non-inclusion.[15]
Further, the divorce under Muslim personal law uses the terms “husband” and “Muslim woman” which means there is the least scope under Muslim personal law for same-sex marriage.[16] Hence, the state must either come up with a specific law dealing with same-sex marriage or else modify the special marriage act to include an Islamic couple of same-sex.
4. Special Marriage Act
In the Special Marriage Act, there is no express provision with respect to same-sex marriages on many occasions husband and wife is mentioned; thus, the act in itself is not gender-neutral. This can cause problems while applying this act during a marriage. For example, in explanation (1A) of section 27 of the act, it is said that,
“A wife may also present a petition for divorce to the district court on the ground, ― (i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.”[17]
Now if the petitioner is a male, then the question will arise if a male can file a divorce on these grounds because it is expressly provided that a “wife” (i.e. a female) can file a divorce on these grounds. Another example will be section 36 where a right has been given to the wife that,
“Where in any proceeding under Chapter V or Chapter VI it appears to the district court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as having regard to the husband’s income, it may seem to the court to be reasonable.”[18]
In this case, too if the couple is a homosexual male with one person with a stable income, then the application of this section will be difficult. Here we can’t simply apply this section and say that in the case of homosexual males, the person with no independent income will be able to claim money from the other partner. This is because these provisions were drafted by the legislature solely to benefit the women keeping in mind the upliftment of women in the Indian community. So, the application of this section in case of homosexual males will be against the legislative intent.
However, in the absence of no express proviso against homosexual marriage and the recent decision of the Supreme Court legalising homosexuality, it can be safely concluded that a marriage under the act will be legal. Complications will arise only in cases where a right or duty has been given explicitly to a male or a female.
IV. Same-sex Community in India
Ironically enough homosexuality was recognised as a normal sexual orientation, and it was not being made an issue of social taboo in the ancient ages. We get that proof from manuscripts and other Hindu texts. Rigveda, one of the major sources of Hindu law, says, “Vikriti Evam Prakriti” which means things that may seem to be unnatural are also natural.[19] Many scholars say that this relates to the recognition of homosexuality as a rather natural phenomenon.
Even the ancient Hindu text on sexuality, eroticism and emotional fulfilment in life called Kamasutra which was written as early as 400BCE to 300CE by Vatsyayana gives references to homosexuality by dedicating its ninth chapter on human homosexual behaviour.[20] Other ancient literature like Arthashastra portrays homosexuality as a lesser offence with the lowest grade of fine than many kinds of heterosexuality.
Homosexuality is portrayed as a natural thing in many historical monuments across the country such as the Khajuraho temples in the caves of Ajanta and Ellora and the Konark Sun Temple in Odisha there are images of women and men engaging in sexual activity with their own gender.
Among the Muslims, Islam forbids same-sex marriage. However, it grew very common among the sultans of the Delhi sultanate who used to get into sexual relationships among other men. Among the Mughals Babur in Baburnama, his autobiography talks about his infatuation for a teenage boy. Even among the Mughals, those of the novel class used to engage in homosexuality which was considered as “true love”, and it existed among those in central Asia.[21]
V. Legal Obligation: Inclusion of Same-sex Marriage
In India, there were many petitions filed for same-sex marriage and its legalisation. Recently, the supreme court of India had dismissed a review petition filed, to review the judgment of Navtej Singh Johar v. Union of India, and discuss the civil rights of homosexuals which include marriage, succession, maintenance etc.[22]
Although the judgment seems to be incomplete or uncertain with regard to civil rights of the homosexuals, the act which was passed in 2019 for safeguarding the rights of transgender seems to make it clear.
The Transgender Act 2019 is wide and in chapter 2 of the act laid down a few grounds on which it strictly prohibits any kind of discrimination of transgender and their rights.[23] Thus, the act seems to have covered the ambit of civil rights of transgender community into its purview and have made an ambiguous implication that all the above personal laws must be amended accordingly and it is suggested that there is a uniform civil code for to legalise the same-sex marriage by widening the scope of marriage in India too at par with other foreign nations.
VI. Conclusion
As it remains criminalised for so long, the Indian community finds it difficult to accept the same-sex couple or in that case the same-sex marriage. Homosexuality is hardly accepted in India, even though it is legal. It is clear that today’s generation is tolerant and freely welcomes the third gender. However, the taboo must be eradicated once for all. This would help the society to grow up and normalise homosexuality. And it is high time for the legislature to act on this issue and make laws regarding the aspect of same-sex marriage and divorce and other civil rights.
[1] Navtej Singh Johar v. Union of India (2018) 10 SCC 1 (SC)
[2] Bryan A.Garner (ed.), Black’s Law Dictionary (2008)
[3] Nayantara Ravichandran, ‘Legal Recognition of Same-sex Relationships in India’ (2013) 5 JILS 95, 98-100
[4] Lewis v. Harris 908 A. 2d 196 (NJ 2006)
[5] Matthew T Cook and Jason E Shelly, ‘Recognition of Same-Sex Marriage’ (2007) 8 Geo J Gender & L 683, 695-697
[6] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR)) art 16
[7] Shafin Jahan v. Asokan K M 2018 SCC Online SC 343 (SC)
[8] K S Puttaswamy v. Union of India (2017) 10 SCC 1 (SC)
[9] R Venkadesh Kumar & Arulkannappan, ‘A Study on the Legal Recognition of Same-Sex Marriage’ (2018)120(5) IJPAMS 2945, 2948
[10] The Hindu Marriage Act 1955, s 7
[11] The Indian Christian Marriage Act 1872, s 4 and 25
[12] The Divorce Act 1869
[13] Huda, ‘What Does Islam Say About Homosexuality’ (Learn Religious, 20 Jan 2019) < https://www.learnreligions.com/homosexuality-in-islam-2004396 > accessed 12 February 2019
[14] Baker v. State 744 A. 2d 864 (Vt. 1999)
[15] Muhsin Hendricks, ‘Islamic Texts: A Source for Acceptance of Queer Individuals into Mainstream Muslim Society’ (2010) 5 The Equal Rights Review 31, 37
[16] The Dissolution of Muslim Marriage Act 1939
[17] Special Marriage Act 1954, s 27
[18] Special Marriage Act 1954, s 36
[19] Stephen Hunt, The Ashgate Research Companion to Contemporary Religion and Sexuality (Ashgate 2012) 368
[20] Sengupta, Refractions of Desire, Feminist Perspectives in the Novels of Toni Morrison, Michèle Roberts, and Anita Desai (Atlantic 2006) 21
[21] Sherry Joseph, ‘Gay and Lesbian movement in India’ (1996) 31 Economic and Political Weekly 2228 < https://www.jstor.org/stable/4404520 > accessed 6 Feb 2020
[22] Shalender, ‘SC Junks Plea on Civil Rights for LGBTQ’ The Tribune (India, 13 Aug 2019) < https://www.tribuneindia.com/news/archive/sc-junks-plea-on-civil-rights-for-lgbtq-817174 > accessed 2 February 2019
[23] The Transgender Persons (Protection of Rights) Act 2019, s 3
