Marriage is considered a social and sacred institution in India. Generally, it is regarded as a male-female relationship. As society is gradually becoming more permissive, homosexual marriages are more accepted all over the world. In India, the right to marriage is considered a constitutional right and has gained importance all over the world. The right to marry someone according to their own will is considered a fundamental right in India, yet the same right is not given to homosexuals, they have been discriminated against based on their genders for a long time. The issue of same-sex marriage is prevalent in our country for a long time. They are also denied many of the legal and economic privileges automatically bestowed by marital status.
In various countries, polls show that there is rising support for legally recognizing same-sex marriage across race, ethnicity, age, religion, political affiliation, and socioeconomic status. Every Indian citizen has the right to choose which civil code will apply to them based on their community or religion. However, the law is silent on the point that whether same-sex marriages are legal or illegal and there is no law governing such marriages, adoption or inheritance, etc. The struggle of the LGBTQ Community for recognition of their rights is toilsome and the end to those struggles is a beautiful destination of equality for all and respect for one’s preferences.
Who Are Homosexuals?
It is a common inclination that people of one sex are sexually or candidly pulled in towards people with inverse sex, i.e., guys are pulled in towards females and vice versa. In some cases, at times and now and again this sexual or emotional attraction isn’t towards inverse sex rather it is towards a similar sex people. This same-sex fascination is known as homosexuality and people with such orientation are called homosexuals. Another term LGBTQ is likewise usually utilized for people with gay introductions; LGBTQ is an acronym for lesbian, gay, bisexual, transgender, and queer, or questioning. These terms are used to describe a person’s sexual orientation or gender identity.
- Lesbian: A woman whose enduring physical, romantic, and/or emotional attraction is to other women. Some lesbians may prefer to identify as gay or as gay women.
- Gay: The adjective used to describe people whose enduring physical, romantic, and/or emotional attractions are to people of the same sex. Sometimes lesbian is the preferred term for women.
- Bisexual: A person who can form enduring physical, romantic, and/or emotional attractions to those of the same gender or those of another gender. People may experience this attraction in differing ways and degrees over their lifetime
- Transgender: An umbrella term for people whose gender identity and/or gender expression differs from what is typically associated with the sex they were assigned at birth. People under the transgender umbrella may describe themselves using one or more of a wide variety of terms— including transgender.
- Queer: An adjective used by some people, particularly younger people, whose sexual orientation is not exclusively heterosexual. Typically, for those who identify as queer, the terms lesbian, gay, and bisexual are perceived to be too limiting and/or fraught with cultural connotations they feel don’t apply to them.
- Questioning: Sometimes, when the Q is seen at the end of LGBT, it can also mean questioning. This term describes someone who is questioning their sexual orientation or gender identity.
Homosexuality is not new to our culture, it existed back in ancient times. Even in Rig-Veda, we can witness sculptures and vestiges depict sexual acts between women as revelations of a feminine world where sexuality was based on pleasure and fertility. We can also witness male homosexuality in medieval Muslim history. The instances of homosexuality can be traced all over the world and India was no exception to it. In Kamasutra, there is a description of homosexual acts. There always have been shreds of evidence of same-sex relationships.
The Cultural residues of homosexuality can be seen even today in a small village Angaar in Gujarat where amongst the Kutchi community a ritualistic transgender marriage is performed during the time of the Holi festival. This wedding which is being celebrated every year, for the past 150 years is unusual because Ishaak, the bridegroom and the bride, both are men. However, with the advent of Brahmanism, the same-sex relationship started losing its significance, they were suppressed by the Aryan invasion in 1500 B.C. There are references to punishments for gay and lesbian behaviors under Manusmriti. In 1974, we witnessed some radical changes, where homosexuality was no longer seen as abnormal behavior and was removed from the classification of mental disorder.
Religious Standing Of Same-Sex Marriages
Under Hindu law, homosexuality existed in ancient times. We can trace instances of homosexuality through texts and scriptures. We can witness descriptions of homosexuality in Kamasutra as well as through sculptures of the temple at Khajuraho. However, with the advent of Brahmanism, we started losing instances of homosexuality.
Under Islamic law, homosexuality was considered a sin and punishable crime against God. Muhammad himself had stated, “If you find anyone doing as Lot’s people did, kill the one who does it, and the one to whom it is done.” He even went so far as to condemn the “appearance” of homosexuality, when he cursed effeminate men and masculine women and ordered his followers to “Turn them out of your houses.”
Under Christian law, the concept of homosexuality was always debatable. It was accepted by some and was condemned by some. Very recently, people started accepting homosexuality and made laws to protect their rights.
Marriages Under Different Personal Laws In India
Under Hindu Marriage Act
Section 5 of the Hindu Marriage Act, 1995, clearly mentions that the bridegroom must be of twenty-one years of age and the bride must be of eighteen years of age at the time of marriage. The Hindu Marriage Act, 195 applies to Hindus, Sikhs, Buddhists, and Jains.
Indian Christain Marriage Act, 1872
Section 60 of the Indian Christain Marriage Act, 1872 mentions that the man must be of twenty-one years of the and the woman must be of eighteen years of age at the time of marriage. Christain marriages are governed under Hindu Christain Marriage Act, 1872.
In Islamic law, marriage is considered a contract between two parties, and the purpose is to legalize sexual relations between two parties. All Muslims are governed under Islamic law.
Special Marriage Act, 1954
It allows a special type of marriage between parties irrespective of their faith and religion who don’t wish to be bound by their laws. This act is also applicable to heterosexual couples as it mentions words like male and female to define the age.
Interpretation of Few Terms Under Personal Laws
- The above acts use male/female or woman/man only to describe the age in the act. Else, homosexuals can be included under different personal laws.
- The above acts do not expressively mention that the marriage should be solemnized only between two opposite genders. Hence, homosexuals also get married under different personal laws.
- A homosexual couple can be interpreted as a bride and bridegroom. It does not necessarily have to be two brides or two grooms.
- In the above acts, under most of the sections, the term used is party or person. Hence all the acts are neutral except for using the term male/female or man/women under few sections.
Law And Homosexuality In India
The last century witnessed major changes in the conception of homosexuality. In 1974, homosexuality was no longer considered abnormal behavior and was removed from the classification of mental disorder. In India, a person cannot be prosecuted for being homosexual or homophilic but the sexual act of sodomy is a criminal offense.
On September 6, 2018, a five-judge bench of the Supreme Court of India decriminalized section 377 of the Indian Penal Code that previously criminalized ‘carnal intercourse against the order of nature with any man, woman or animal’, making it an ‘unnatural’ and a punishable offense. The section will continue to apply only in cases of bestiality, carnal intercourse with minors, and in cases of no consent. Ever since its inception in 1860, section 377 was interpreted and taken to ban homosexual relations in India, without making any distinction between ‘consensual’ and ‘non-consensual’ acts; without clearly defining what is ‘natural’ and ‘unnatural’, and who is to decide what is against the order of nature.
The existence of section 377 had along the years left the LGBTQ community of India devoid of an absolute ‘identity’ in consideration of their sexual orientation, thus, further infringing upon their constitutional rights of equality, privacy, and other civil rights. With the decriminalization of section 377, homosexual relations become legal, creating space for the recognition of the LGBTQ community as equal citizens, their rights of marriage, adoption, accessibility to all civil services, employment opportunities, and other fundamental rights that the constitution of India guarantees to its citizens.
The Nalsa Judgement
The decision of the National Legal Service Authority vs Union of India coitized gender-based discrimination and brought a ray of hope to homosexuals. The bench consisted of Justice K.S. Panicker Radhakrishnan and Justice Arjan Kumar Sikri. They gave legal identity to all the individuals whose gender doesn’t match with the accepted standards of society. The Supreme Court declared the transgender as “third gender”. It is considered as a landmark judgment because the Supreme Court affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to them, and gave them the right to self-identification of their gender as male, female or third gender. This judgment proved to have a revolutionary impact on laws related to adoption, marriage, and inheritance.
This judgment was delivered after the court upheld the validity of Section 377 of the Indian Penal Code in the case of Suresh Kumar Koushal vs Naz Foundation. The judgment only focused on recognition of the third gender and left Koushal’s judgment uninterrupted. Few mandates were made by the court directing State and Centre Governments:
- Not recognizing the third gender in criminal and civil statutes in terms of property, adoption, and marriage is clear discrimination against them.
- The third gender community is treated as “socially and economically backward classes” and therefore the government should provide welfare schemes to uplift them.
- The government is directed to create awareness for the proper incorporation of the community into society.
- They should provide proper medical treatment to the community as well as provide HIV/ Sero- surveillance measures to them.
Why Same-Sex Marriage Should Be Legalised In India?
The legal status of same-sex relationships and marriages has always been in dispute as there is no clear policy for the LGBTQs in India. They should be treated no differently than their heterosexual counterparts and should be able to marry like anyone else. A recent study of sexual practices in rural India by the United Nations Population Fund (UNFPA) found that `male-to-male sex is not uncommon. A higher percentage of men in the study reported having male-to-male sex than sex with sex workers. The survey covered 50 villages in five districts of five states with feedback on sexual practices from close to 3,000 respondents and in-depth interviews on intimate habits from 250 people. Close to 10 percent of unmarried men and 3 percent of married men reported having had sexual intercourse with other men in the past 12 months.
In a 2019 survey, 62% of the respondents said that they didn’t approve of same-sex marriages. Society is not going to rush to embrace gay marriage but waiting for societal acceptance might delay marriage equality, and the right to adopt children, by years. The introduction of same-sex marriage will benefit same-sex couples as it will reduce prejudice and discrimination against them and will enhance their safety, self-esteem, health, and wellbeing.
Same-Sex Marriages Around The World
In 2001, Netherlands became the first country to legalize same-sex marriage. It is legally acceptable for a man to marry a man and for a woman to marry a woman in the Netherlands. The way they welcome same-sex marriage was an inspiration for a lot country. Countries like Belgium, Spain, Canada, Africa, Norway, Iceland, and Mexico also legalized same-sex marriages however, some same-sex couples fear that their marriage won’t be held as legal in every country. At present, 29 out of 125 countries have legalized same-sex marriage.
Under Australian federal law, same-sex marriages are treated as a de facto union. Same-sex couples are prevented from marrying by the definition of marriage contained within the federal Marriage Act (1961), as amended in 2004 by the Howard Government. In the United States, same-sex marriage was legalized on 25 June 2015. The court ruled that the denial of marriage licenses to same-sex couples and the refusal to recognize those marriages performed in other jurisdictions violates the Due Process and the Equal Protection clauses of the Fourteenth Amendment of the United States Constitution. In India, same-sex marriage is not legalized and is considered immoral and violative of customs and religious beliefs. They stand at risk of losing their reputation, loved ones, and social standing for being what they are.
Recent Case Laws
Shakti Vahini vs Union of India, 2018
In this case, the Supreme Court held that denying an individual the freedom and choice to marry a person of their choice is against the fundamental right given under the constitution of India. Two adults have the right to marry out of volition. This judgment was however delivered in the backdrop of Khap panchayats indicating the constitutional right of a free choice and the right to marry as being a fundamental right protected by Articles 19 and 21.
In this case, it was held that denying the members of the LGBTQ Community the full expression of the right to sexual orientation is to deprive them of their entitlement to full citizenship under the Indian Constitution. To secure the rights of the LGBTQ community is a very important step, legal recognition of same-sex marriages should be the next step.
Justice K.S.Puttaswamy (Retd) vs Union of India, 2018
In this case, it was held the responsibility lies with the judiciary to rightfully interpret and expand the scope of individual rights. A careful and combined reading of these landmark judgments will guide us to a constitutional path where the right of marriage can be extended to include homosexual couples as well.
Homosexuals face discrimination every day. They have to struggle even for basic human rights. India does not acknowledge same-sex marriage or civil unions. Additionally, it does not possess a unified marriage law. Though judgments have played an important role in removing the stigma that is attached to LGBTQ Community. While we may now be a more liberal country with this celebrated judgment, many Indians are still far from accepting the LGBTQ community as “natural”. Though their closet life and struggle with dual identities don’t just stem from the legal consequences of their sexuality. It stems from the social stigma around it. It stems from the branding of an entire spectrum of sexuality as unacceptable, deviant, and “unnatural” among their families, friends, and peers.
Decriminalization of Section 377 does very little to solve their problems. Those who are out and proud, breathe a sigh of relief, for not being bound by Section 377 but what about the closeted LGBTQ population in our society, which is still in shackles of our conservative mentality. It is time we woke up to the real understanding that homosexuals are as normal as you and me and deserve the same rights.
Frequently Asked Questions (FAQs)
Can a man marry another man in India?
No, a man cannot marry another man in India because Indian laws do not recognize same-sex marriage.
What is the status of Section 377 of the Indian Penal Code, 1860?
On September 6, 2018, the Supreme Court of India held that Section 377 which criminalized gay sex was unconstitutional and struck down unanimously.
What does LGBTQ stand for?
LGBTQ is an acronym for lesbian, gay, bisexual, transgender, and queer, or questioning. These terms are used to describe a person’s sexual orientation or gender identity.
It is a landmark decision of the Supreme Court of India in 2018 that decriminalized all consensual sex among adults, including homosexual sex.
What was held in the Nalsa Judgement?
It is considered as a landmark judgment because the Supreme Court affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to them, and gave them the right to self-identification of their gender as male, female or third gender.