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SAME-SEX MARRIAGE: AN ANALYSIS

INTRODUCTION

In the 18th– 19th century, when India was existing in the middle of poverty and tapering mindset, where even the inter-caste and inter-religious people were not accepted, a writ[1] was filed in the High Court of Delhi for Section-377 of IPC[2] to be declared unconstitutional. On 6th September 2018, the LGBT community and modern India won the war against dogma when a bench of the Supreme Court ordered to decriminalize section 377 of IPC. The judgment gave LGBT community equal rights and status in society, but still, it wasn’t a big win. Same-sex marriage is still an issue as the constitution doesn’t expressly recognize the right to marry as a fundamental or constitutional right. LGBTQ people are still not recognized by the law and society to be worthy spouses. Now, many petitions are there at hand to legalize same-sex marriage so that those people also have the right to marry like normal and live a common life. The constitution implicitly recognizes the right to marriage irrespective of gender. Many countries have recognized same-sex marriage, but in a country like India, it will take time because marriage is not only a legal system here. It also constitutes a social phenomenon with it.

BACKGROUND

Same-sex marriage’s first case was reported in 1987 when two policewomen tied knots together. Since then, many such cases have been reported day by day. The recent one is the famous Indian athlete accepting her same-sex relationship and requesting the LGBT community to be more courageous. After certain cases, lawyers went up together for the “The Marriage Project” This initiative aims to make same-sex marriages legal in India.

CURRENT SITUATION

India is a land of many customs and beliefs. Marriages here are considered to be a very strong social and legal institution. It comes with legal rights and social responsibilities. The right to marry, which is given under Article 21 (right to life) of the constitution[3], has given everyone the right to choose a partner of his/her choice. In Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors[4], it was decided that Article 21 grants freedom of life and liberty, which goes beyond simple continued existence to include a meaningful life that is lived with dignity. A requirement for establishing the rights guaranteed by Article 21 of the constitution is inherent human dignity. Marriage has been deemed a fundamental right under Article 21 of the Constitution[5] by courts because it is essential for maintaining personal dignity and living a meaningful existence. The Supreme Court case of Shakti Vahini v. Union of India[6] illustrates the same point.

Even in the Hindu Marriage Act, 1955[7] and the Special Marriage act of 1954, it is nowhere mentioned that marriage is only between a woman and a man. The two major acts are gender-neutral. Looking upon that, if LGBTQ marriage does not violate any of the personal laws and if even the masses want same-sex marriage to be allowed, then what is the harm in enacting it? Why are we restricting marriages to only between a man and a woman? Are we still following orthodoxy? The situations have changed, and the legal system has evolved; then why are we not giving equal rights to sexual minorities, i.e., LGBT?

On September 8, 2020, four representatives of LGBT filed a PIL in Delhi High Court establishing that they should be allowed to exercise their right to marry under the Hindu marriage act of 1955. They should not be deprived of their constitutional rights. The Madras high court once held that a transsexual person could get married as a bride under the Hindu marriage act. The court ordered that the marriage of the petitioner be registered. Even after all this, LGBT people don’t have the basic rights of adoption, marriage, etc.

The Supreme Court of the US determined in Obergefell v. Hodges[8] that same-sex marriage results from the right to marry, which is a fundamental right. The state cannot discriminate against any person on the basis of caste, race, religion, sex, or place of birth, according to Article 15 of our constitution.[9] This indicates that preventing same-sex marriages is a blatant infringement of our fundamental rights.

WHAT IS HAPPENING AROUND THE WORLD?

In the following nations, same-sex unions are permitted and recognised: Brazil, Chile, Cuba, Costa Rica, Columbia, Ecuador, Finland, France, Germany, United States, Australia, Austria, Belgium, Uruguay, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, New Zealand, Norway, Portugal, Spain, South Africa, Slovenia, Sweden, Switzerland, Taiwan, United Kingdom, and Argentina. There are a total of 33 countries across the world that have recognized same-sex marriage.[10] The first of them is the Netherlands which recognized same-sex marriage in 2001. Most of the nations recognizing such marriages are developed nations, mainly from America and Europe. Costa Rica gave recognition to same-sex marriages in May 2020. The recent one to recognise it is Mexico in December 2022. As a step ahead, Andorra will recognize and bring a law on it on 17 February 2023. More nations will recognise same-sex marriages in the near future, and the LGBTQ community will finally achieve the equality for which they have fought for so long.

CONCLUSION

The fact is that the main problem with the legalisation of same-sex marriage is that people start rejecting it on the basis of several socio-cultural aspects. Tushar Mehta argued that same-sex marriage is against our social, cultural and legal beliefs. It is very disheartening that it took nearly 24 years to just decriminalize homosexuality. At that time, after 24 years, it was made at least legal to love each other but now it is so tough to even exercise the right to marry someone of their own choice.[11]

The marriage of LGBT should be registered under the Special Marriage Act[12] irrespective of the political and cultural angle because the gay community is not related to any specific religion. No one will stop the recognition of marriage under the Special Marriage Act in the name of culture and values. Merely changing the law will not give recognition. The mindset of society has to be changed. Now that we have the freedom to expression, people should be made aware of the ground realities. They should understand that everyone has the freedom to choose their life partner. The equal status, recognition, and respect that the LGBT community has been fighting for so many years should be given.

Author(s) Name: Kashish (GLC, Mumbai)

References:

[1] Writ Petition (Criminal) No. 76 Of 2016

[2] The Indian Penal Code, 1860, s. 377

[3] The Constitution of India, 1950, art. 21

[4] 1985 SCC (3) 545

[5] The Constitution of India, 1950, art. 21

[6] [2018] 9 SCC 382

[7] The Hindu Marriage Act, 1955

[8] 576 U.S. 644 (2015)

[9] The Constitution of India, 1950, art. 15

[10] Same-sex marriage < https://en.wikipedia.org/wiki/Same-sex_marriage#:~:text=of%20the%20same%20sex%20or%20gender.%5B1%5D%20As%20of%202023%2C%20marriage%20between%20same%2Dsex%20couples%20is%20legally%20performed%20and%20recognized%20in%2033> accessed on 17th February, 2023

[11] <https://blog.ipleaders.in/same-sex-marriage-a-fight-for-eaquality/#:~:text=The%20main%20issue,Marriage%20Act%2C%201954> accessed on 17th February, 2023

[12] Special Marriage Act, 1954