Legalisation of Same Sex Marriage: A Dream or Reality?
Updated: Dec 19, 2021
Authored by Nikita Anand, GNDU Regional Campus, Jalandhar.
A major breakthrough in the human rights of all the human beings around the world took place after the horrendous World War 2. The countries realized that war is not an answer to their problems. They also realized that human beings are the actual beneficiaries and subjects of the international law. Human Rights are the rights given to all the human beings around the globe irrespective of their religion, gender, caste, creed, color, sex, nationality, language, region, race, ethnicity or any other ground. The basic inalienable and indivisible human rights include right to freedom of speech and expression, right to humane conditions for work, right to education, and freedom from slavery, political rights and so on. One such important right is the right to marriage. No one should be denied these basic rights are they essential for protection and maintenance of dignity of an individual and provide him an environment for his growth and development. Former Chief Justice of India has said “Human dignity is the quintessence of Human Rights.”
History of the Homosexuals in India
Historians have long argued that pre-colonial Indian society did not criminalize same-sex relationships, nor did it view such relations as immoral or sinful. Hinduism has traditionally portrayed homosexuality as natural and joyful. Hinduism also acknowledges a third gender and has a strong tradition of portraying them positively; there are multiple characters in the Mahabharata who change genders, such as Shikhandi, who was born female but identified as male and eventually married a woman. Bahuchara Mata is the goddess of fertility, worshipped by hijras as their patroness.
The modern homophobia took its shape after the colonizers stepped foot in our country and enacted section 377 in the IPC which continued for more than 70 years. The Britishers labeled the hijras as criminal tribes. It is ironical that our constitution provides basic fundamental rights of equality, life, liberty to every citizen of this country but we for the last 70 years continued to ignore the LGBT Indians labeling them as irrelevant, immoral, unnatural, and irreligious.
Legalisation of Same Sex Marriage
In the largest constitutional democracy, the citizens of India get all the basic human and constitutional rights such as right to speech, expression, life and personal liberty. One of the most imperative right of a citizen is the right to choose your partner and marry them. India is a country of relationships, marriage, kinship etc but it has also been the country for policing inter-caste marriages, inter racial marriage and same-sex marriages. Citizens believe in the union of marriage but unfortunately there are many people in our country who cannot get their marriage registered and those are the people belonging to LGBTQ+ community. We have marriage laws pertaining to different communities of our country such as Hindu Marriage Act, Muslim Personal Law, and Christian Marriage Act all of which apply to the heterosexual marriages only and have no provision for homosexual people whatsoever. In India, two consenting adults of any sexuality or sexual orientation can have a social marriage but there are no legal safeguards of their rights.
In 2018, a landmark judgment changed the scenario of the rights of the LGBTQ Indians. The case of Navtej Singh Johar v. Union of India decriminalized homosexuality and abrogated the section 377 of the Indian penal code which was a colonial legal provision. This judgment stated that LGBTQ+ Indians account for 5-7% of our population and it is necessary for that the values of nondiscrimination, equality, freedom of expression are extended to them as is their right.
“History owes an apology to these people and their families. Homosexuality is part of human sexuality. They have the right of dignity and free of discrimination. Consensual sexual acts of adults are allowed for the LGBT community.”
— Justice Indu Malhotra
The next step toward ensuring equality to the LGBTQ+ people is giving them all the other basic civil rights and liberties such as right to marry , right to adopt etc. that our Constitution so bestows on the citizens. These topics are still considered as a taboo and majority of people refrain from discussing it anywhere. Same sex marriage is not illegal or legal in India, there are no adverse consequences or penalties with simply solemnizing a same sex marriage, but having said that Marriage equality is one of the most basic rights for a citizen and the LGBTQ+ community is still devoid of it. In April 1954 when the proposed Special Marriage Bill was being debated in Rajya Sabha a Congress MP from Bihar, Tajamul Hussain, raised the question of how the law might deal with sex change. Hussain asked "If the husband changed into a woman and the wife into a man what should happen to such a marriage? Would it become void?" Hussain’s query was brushed off as irrelevant at that time, but it is not irrelevant today. The special marriage act 1954 is somewhat heterosexual in nature. There is no particular law in India relating to marriages of the LGBTQ community people. For example the Hindu Marriage Act lays down guidelines for a marriage only between an 18 year old girl and 21 year old boy. Nowhere in the act has it mentioned about marriage of a girl with a girl or of a boy with another boy.
There are two aspects of same sex marriages in India; the social aspect is that any two consenting adults are allowed to marry each other in presence or not of their family and friends and many people post the abrogation of section 377 are able to do that . But the legal aspect of marriage is that it bestows certain rights and responsibilities on the couple such as right to adopt, inheritance , maintenance which are included in the heterosexual marriages but not in the same sex marriages.
Many LGBTQ Indians prefer going and residing abroad to get married as they certainly feel they do not have the legal freedom in India such as Keshav Suri, the executive head of Delhi based Lalit Suri Hospitality Group that operates the Lalit chain of hotels married his partner Cyril Feuillbois in Paris. This affects the efficiency of the production capacity of the country as the workforce decreases with them leaving the country. Presently 30 countries around the globe have enacted national legislations which allows same sex marriage including Netherlands, Belgium, Canada, Spain, Norway, Sweden, Portugal, USA, England, Wales, Scotland, Taiwan, south Africa, Argentina , Iceland, Uruguay, new Zealand, brazil , France, Luxembourg, Finland, Ireland, Greenland, Colombia, Germany, Malta, Australia, northern Ireland, Ecuador and Austria.
In 2015 an LGBTQ activist- Harish Iyer’s mother approached many leading newspapers for placement of a matrimonial advertisement which said:
“Seeking 25-40, Well Placed, Animal-Loving Vegetarian GROOM for my SON (36 5’11”) who works with an NGO. Caste No Bar (Though IYER preferred).”
She was rejected by all the newspapers but in the end Hindustan times picked it up. Marriage is a very personal choice and everyone living in this country must be entitled to make one. In a country where marriage advertisements show the actual monetary interest of people rather than finding a good human being , this ad was an acceptance and welcome of the gay people openly in this country where it was illegal at one point.
Same sex marriage registration petition
India is a marital society, many people in this country believe in this institution of marriage but getting married for the people belonging to the LGBTQ community is nearly impossible. What is the point of being openly gay or lesbian in India if the person still can’t marry the person of their choice? On June 12th 1967, the U.S Supreme Court unanimously struck down the law that prohibited interracial marriages in Loving v. Virginia, same way inter-caste marriages are still frowned upon in India.
Many petitions regarding the same have been filed in the Supreme Court of India and the High Courts of the country one of them is of Nikesh Pushkaran and Sonu MS got married in a secretive ceremony after abrogation of section 377 in a temple in Kerala but when they went to get their marriage registered under Special Marriage Act, the officer in charge refused to register their marriage because the said act does not pertain to the needs of homosexuals in India. As there was no official seal on their union they were subjected to immense agony, pain and above all the prejudice. Lack of recognition of their marriage violated their fundamental rights to equality, equal protection before law, life, liberty and non discrimination.
So they filed a writ petition in the Kerala High Court seeking legalization and registration of same sex marriages in India. Justice Anu Sivaram of Kerala HC has agreed to hear their plea and thus has sent the notice regarding the same to central and state governments. Their journey has definitely not been the easiest one. Abolition of section 377 recognized them as humans and gave them the right to conjugate but life is about more than just sex. They need the basic civil liberties that all the other hetero-sexual people enjoy.
Development of a country is possible only if all the citizens happily work towards that goal but it is imperative for the government to be vigilant and towards every section of the society and not turn a blind eye on the minorities especially. With the legalization of same-sex marriages in India, gay people would be eligible for many liberties such as adoption, insurance, inheritance etc. The journey for gaining all the rights, liberties and responsibilities of LGBTQ Indians is a long one and the end goal for it is acceptance. It is the social change in the mindset of people i.e. when they stop discriminating, judging the LGBTQ Indians that is when the war against homophobia will be won. Thus if any two people want to make a commitment of marriage, they should be permitted to do so, and excluding one class of citizens from the benefits and dignity of that commitment demeans them and insults their dignity and violates their fundamental and human rights.
References-  Definition of human rights. https://www.humanrights.com/  Mahabharat story. https://en.wikipedia.org/wiki/Shikhandi  A landmark judgment decriminalizing homosexuality https://indiankanoon.org/doc/168671544  A better change https://www.thebetterindia.com/23796/indias-first-lgbt-matrimonial/  USA’s historical judgment legalizing homosexuality https://www.history.com/topics/civil-rights-movement/loving-v-virginia
 India’s first gay wedding after scrapping of section https://timesofindia.indiatimes.com/city/kochi/meet-keralas-first-gay-couple-to-get-married/articleshow/70643012.cms