THE JOURNEY OF SAME SEX MARRIAGE FROM VEDAS TO MODERN ERA (By-Swapnil Raj)
THE JOURNEY
OF SAME SEX MARRIAGE
FROM VEDAS
TO MODERN ERA
Its recent conflicts to recognition
in India and Proposed Solution
The Journey of same sex marriage from
Vedas to Modern Era
Its recent conflicts to recognition
in India and Proposed Solution.
Prepared by
Introduction
Indian culture is rich, unique,
diverse and attracted by many people all over the world. It is deep-rooted,
most valuable, rich informative, present and future oriented and a great
advantage to the innovative ideas and thoughts to the world. Indian culture is
extremely influenced by Vedic literature. It is religious and spiritual in
nature and reflects the world as a whole at that period. Vedic literature is
the basic root of Indian culture. It is said to be the treasure of immense knowledge
and influenced by Indian culture and tradition. A unique feature of the Vedic
literature is its adoption of humanistic approach to abstract, unique, confused
and difficult subjects like third gender. The ethical, esthetical, social,
political and economic aspects of life have been taken into account by the
Vedas. Vedic literature is the backbone of Indian culture and society. It
discussed each and everything under human life. It served as a great unifying
force in the Indian sub-continent and all continents and still continues to
hold immense authority in the sphere of spiritual, religious, social, economic
and political relevant literature. In the entire Vedic literature names of a
lane number of Gods and Goddesses are mentioned. Broadly speaking the Vedic
literature (Aparavidya) can be categorized as the Vedas and the Vedangas. The
Vedas are considered to be the oldest literary records of the world and is
generally regarded as the period 1500 BC to 500 BC.
The four types of Vedas are (i)
Rigveda (ii) Yajurveda (iii) Samaveda (iv) Atharvaveda. These four types
consist of four different classes of literary works[1].
Each of these classes belong a greater or a smaller number of separate works,
of which some have been preserved in their true form but many lost in time.
These four classes are: Samhitas, Brahmanas, Aranyakas and Upanishads.
Sometimes, the Aranyakas and Upanishads are treated as part of
Samhitas/Brahmanas.[2] The
Vendangas consists of the six knowledge streams required for understanding of the
Vedas. They are: Shiksha, Kalpa, Vyakarana, Nirukta, Chada and Jyotisha. In
addition to this each of the Veda consists of a secondary knowledge source
called Upveda.Vedic literature is more transparent to deal human biology. In
the Vedic literature the gender of the human being is precisely divided into
three categories according to prakriti or nature. They are pums-prakriti or
male, stri-prakriti or female, and tritiya-prakriti or the third sex
(SvetasvataraUpanisad, Galva 108). Third sex people are also classified under a
larger social category known as the ?neutral gender.? Its members are called
napumsaka (not engage in procreation). Napumsaka people divided into five
different categories, they are: children, the elderly, the impotent, the
celibate, and the third sex. They were all considered to be sexually neutral by
Vedic definition and were protected and believed to bring good luck and
prosperity. This non reproductive category played an integral role in the
balance of human society and nature. Vedic literature underlined that
everything in nature in corporate and has a purpose, role, value and reason for
existence.In Vedic literature human categories considered and assessed the
entire being that includes the gross (physical) body, the subtle (psychological)
body, and a unique consideration based upon social interaction (procreative
status) (Wilhelm, 2004). These assessment and categories of the
“tritiyaprakriti” is centuries before. But in the modern world the concept of
third gender/transgender is first identified ?Transvestite ‘in 1910 from the
German sexologist Magnus Hirschfeld. ?Transsexual' was not identified until
1949, 'transgender' not until 1971, and 'trans' (a very British term) not until
1996 (Stryker &Whittle, 2006).[3]
The fact is that the third gender is a very common term in the ancient Indian
Transgender Identity As hidden in Vedic Literature and Society, which mention
to the highest Hindu population in the world.[4]
Unfortunately, transgender are not
widely recognized and accepted in modern India, except in the Indian State of
Tamil Nadu. In contemporary Indian society there has been much controversy and
confusion concerning the physiology, psychology and position of transgender
persons within the society. But in the Vedic society there were no any
confusion related to the concept of third gender/transgender. In Vedic society
each individual was seen as an integral part of the greater whole. To
understand third gender individual’s peculiar characteristics, physiological
and psychological uniqueness, the ancient Vedic literature in India must help
us, which have thoroughly analyzed and recorded all aspects of human life.
People of the third sex are mentioned throughout the Vedic literature in
different ways due to their physiological and psychological appearances and
uniqueness. Vedic literature concerning everything about third gender like the
causes of their birth, various characteristics, types, practices, problem,
occupations etc. In Vedic society third gender citizens were neither persecuted
nor denied their basic rights like modern Indian society. They were allowed to
keep their own societies or town quarters, live together within marriage and
engage in all means of livelihood never treated as out caste and untouchable
like today. Gay men could either blend into society as ordinary males or they
could dress and behave as females, living as transvestites (Galva 108). They
are especially mentioned as being expert in dancing, singing and acting, as
barbers or hairstylists, masseurs, and house servants. Vedic society was
accepted their skills and capabilities with full support. And transvestites
were invited to attend all birth, marriage, and religious ceremonies as their
presence was a symbol of good luck and considered to be auspicious. In Vedic
society they were not perceived to be a threat and ridicule in any way and were
considered to be aloof from the ordinary attachments of procreation and family
life. In this way they were awarded their own particular status, dignity and
welcomed as a part of civilized Vedic society.
It’s not about two
people being gay: it's about two people who love each other and who have
decided to commit to each other for the exact same reasons any other couple
would get married.
"Transgender"
is an umbrella term that describes people whose gender identity or expression
does not match the sex they were assigned at birth. For example, a transgender
person may identify as a woman despite having been born with male genitalia.
Historical Background
of Transgender
The transgender population in India
is a (in) visible population that is embedded in the Indian society from a very
long time. Transgender are linked with the religious-cultural background and
are considered demi-gods. Descriptions of transgender are in epics like
Ramayana and Mahabharata (Nanda 1996; Krishna and Gupta 2002) and references of
third gender are in Kamasutra also.[5]
Few characters mentioned in the epic Mahabharata include Arjuna as Brihannala
(a eunuch teacher), Shikhandi (reborn as a man) who confronted Bhishma during
the Kurukshetra war, and Lord Krishna as a woman marrying Arjuna’s son Lord
Aravan Hijras worship Goddess Bahuchara Mata (Barbara 1994; Nanda 1996; Lal
1999; Bakshi 2004; Hill and McBride 2007) and the temple is situated in
Bahucharaji, Mehsana district, Gujarat, India.
Transgenders relate themselves to the
Mohini avatar (a woman form) of Lord Krishna and Lord Shiva (in the form of
Ardhanarishvara) (Nanda 1996; Lal 1999). Lord Ayyappa is said to been born to
Lord Shiva and Lord Vishnu. Lord Vishnu took Mohini avatar (Goudriaan1978;
Doniger 1999) and Lord Ayyappa was born (Krishna and Gupta 2002; Kalra et al.
2010). Lord Shiva is represented in the image of Ardhanarishvara, or ‘the Lord
who is half woman’. Lord Shiva and Parvati together in one body are called as
Ardhanarishvara (Krishna and Gupta 2002; Kalra et al. 2010).[6] In
various paintings and sculptures Lord Shiva’s half body is female and half is
male.
Transgenderism/Homosexuality in Vedas
Many Hindu scholars came forward to
support Homosexuality, One of the renowned Hindu scholar “Sri Sri Ravishankar
Prasad said that “Homosexuality has never been considered as crime in Hindu
culture. In fact, Lord ayyappa was born of Hari –Hara (Vishnu & Shiva).
In Vatsyaan's
Kamasutra, all this has been depicted as a
totally inhibition and a crisis of health, but it must be certified that gay
relations existed in ancient India too.[7]
1. According to a legend, Lord Shiva was
conscious of Krishna with Raslila. For this, he took bath Yamuna and took the
form of Gopi. He took the back of Krishna as Gopi and formed Rasli. Poonawala
has called it the attraction of the same gender.
2. According to legend, Shiva and
Parvati once went to Lord Vishnu. On their sayings, Vishnu takes the form of
Mohini. After this, Shiva becomes fascinated by Mohini. In Shiva Purana,
Hanuman is said to be born with the transition of Shiva and Mohini.
3. The monster whom Lord Shiva had
blessed that whatever he would put his hand on, he would be consumed. Bhasmasur
falls behind Shiva only. Shiva asked Lord Vishnu for help. Even though he was a
man, he changed the form of a siren and placed Bhasmasur's hand on his head.
Poonawalla says that it means that despite being a man, the man was spared.
4. Arjun and Alpi's son Arwan are
decided to send them to the battle field. His death was certain. He did not
want to die unmarried. To fulfill his wish, Lord Krishna has a feminine form.
Aravan married Krishna. He spent the night with God and he was killed in
battleground the next day. While being a man, Shri Krishna mourned as a widow.
5. Brhaspati Grah when came to know that
his wife Tara has become pregnant with Chandra, he was angry and curse the
child to be impotent. This child is a Buddha planet. Later, this impotent child
marries as a woman.
6. The story of two widows being
pregnant in the Ramayana period is also prevalent. In it, both widows love each
other and consume magical medicine to be pregnant.
7. The Ramayana period itself mentions
the relationships of monster women. It has been said that monster women loved
other women and kissed them.
8. A story is also narrated to Narada
Muni. He wants to understand Lord Maya's magic. God sends them to the bath in a
lotus tank. After bath, Narada forgets the past and becomes a woman. They are
married to a king, who also have their children. That is, he also originally
lives with a man through sex transformation while being a man.
"It is said in the Vedas that what
is unnatural is also natural
·
'Aravan Dev' is the god of kinars. They even marry them once in a year. Aravan, Arjun and
Nag were the sons of Princess Ulupi. Arjun married Ulupi. Ulupi gave birth to
their son. After the birth of Aravan, Arjun left him.
·
According
to Shiva Purana and other scriptures, Pawan son Hanuman was born with the union
of Lord Shiva and Vishnu's Mohini Avatar. Hanuman ji is considered as the form
of Lord Shiva. Indeed, according to some scriptures, he is a part of Shiva and
Vishnu.[8]
·
The
temple of Khajuraho is also famous for erotic idols. These
temples have different significance because of these idols. When such idols
were made in that period, then it is natural. This was also happening at that
time.[9]
According to Ram dhari singh dinkar
there is no concept of male female Lord shri Krishna says that everyone comes
back to me there is no “Nar and nari“.
Transgender Position in modern era[10]
Transgender persons had been part of
Indian society for centuries. There was historical evidence of recognition of
“third sex” or persons not confirm to male or female gender in near the
beginning writings of ancient India. The concept of “tritiyaprakriti” or
“napumsaka” had been an integral part of the Hindu mythology, folklore, epic
and early Vedic and Puranic literatures[11].
The term “napumsaka” had been used to denote the absence of procreative
ability, presented by signifying difference from masculine and female markers.
Thus, some of the early texts extensively dealt with issues of sexuality and
the idea of third gender which was an established thought therein. In fact, the
Jain text even mentions the concept of “psychological sex”, which emphasized
the psychological make-up of an individual, distinct from their sexual
characteristics. Lord Rama, in the epic Ramayana, was leaving in the forest
upon being banished from the kingdom for 14 years, turns around to his
followers and asks all the ‘men and women’ to return to the city. Among his
followers, the hijras alone did feel bound by this direction and decide to stay
with him. Impressed with their loyalty, Rama sanctioned them the power to
confer blessings on people on auspicious occasions like child birth and
marriage, and also at inaugural functions which, it was supposed to set the
stage for the custom of badhai in which hijras sing, dance and confer
blessings. Aravan, the son of Arjuna and Nagakanya in Mahabharata, offer to be
sacrificed to Goddess Kali to ensure the victory of the Pandavas in the
Kurukshetra war, the only condition that he made was to spend the last night of
his life in marriage. Since no woman was willing to marry one who was doomed to
be
killed, Krishna assumes the form of a
beautiful woman called Mohini and married him. The Hijras of Tamil Nadu
considered Aravan their progenitor and call themselves Aravanis.
Mughal Period
Hijras played a famous role in the
royal courts of the Islamic world, particularly in the Ottoman empires and the
Mughal rule in the Medieval India. They rose to well-known positions as
political advisors, administrators, generals as well as guardians of the
harems. Hijras were consider clever, trustworthy and fiercely loyal and had
free access to all spaces and sections of population, thereby playing a crucial
role in the politics of empire building in the Mughal era. The Hijras also
occupied high positions in the Islamic religious institutions, especially in
guarding the holy places of Mecca and Medina the person of trust, they were
able to influence state decisions and also received large amount of money to
have been closest to kings and queens. Thus hijra frequently state the role of
their status in that period.
British Period
In the beginning of the British
period in Indian subcontinent hijra used to accept protections and benefits by
some Indian states through entry into the hijra community. Furthermore, the
benefits incorporated the provision of land, rights of food and smaller amount
of money from agricultural households in exact area which were ultimately
removed through British legislation as because the land was not inherited
through blood relations.
Criminalization Under the Colonial
Rule
Through the onset of colonial rule
from the 18th century onwards, the situation changed drastically. Accounts of
early European travelers showed that they were repulsed by the sight of
Transgenders and could not comprehend why they were given so much respect in
the royal courts and other institutions. In the second half of the 19th
century, the British colonial administration vigorously sought to criminalize
the hijra community and to deny them the civil rights. Hijras were considered to
be separate caste or tribe in different parts of India by the colonial
administration. The Criminal Tribes Act, 1871,[12]
this included all hijra who were concerned in kidnapping and castrating
children and dressed like women to dance in public places. The punishment for
such activities was up to two years imprisonment and a fine or both. This
pre-partition history influences the vulnerable circumstances of hijra in this
contemporary world.
Criminalization
And Marginalization During Post-Independence Era
However the Act was repealed in 1952 and its
legacy continues and many local laws reflected the prejudicial attitudes
against certain tribes, including against Hijras. Recently, the Karnataka
Police Act was amended in 2012 to “provide for registration and surveillance of
Hijras who indulged in kidnapping of children, unnatural offences and offences
of this nature” (Section 36A), in a similar vein to the Criminal Tribes
Act,1871, According to Section 36A, Karnataka Police Act, 1964, Power to
regulate eunuchs. Historical evolution of transgender community in india MUHGAL
PERIOD (positions as political advisors, administrators, colest to kings and
queens). BRITISH PERIOD: (the provision of land, rights of food and some amount
of ariculture households) In contemporary times ( supreme court - third sex ,
lgbti rights and social procation of welfare policy and schemes for transgender
people ) criminalization and marginalization post-independence (the criminal
tribes act, 1871 and section 36a)[13].
1. preparation and preservation of a
register of the names and places of residence of all eunuchs residing in the
area under his charge and who are reasonably suspected of kidnapping or
emasculating boys or of committing unnatural offences or any other offences or
abetting the commission of such offences.
2. Piling objections by aggrieved
eunuchs to the inclusion of his name in the register and for removal of his
name from the register of reasons to be recorded in writing.
Contemporary Period
The transgender in India is possibly the most well-known and popular
third type of sex in the modern world. The Supreme Court declared for
transgender as third gender.[14]Here
Court has directed Centre and State Governments to grant legal recognition of
gender identity whether it be male, female or third-gender:
Legal
Recognition for Third Gender: In recognizing the third gender category, the
Court recognizes that fundamental rights are available to the third gender in
the same manner as they are to males and females. Further, non-recognition of
third gender in both criminal and civil statutes such as those relating to
marriage, adoption, divorce, etc. is discriminatory to the third gender.
Legal
Recognition for Persons transitioning within male/female binary: As for how the
actual procedure of recognition will happen, the Court merely states that they
prefer to follow the psyche of the person and use the "Psychological
Test" as opposed to the "Biological Test". They also declare
that insisting on Sex Reassignment Surgery (SRS) as a condition for changing
one's gender is illegal.
Public
Health and Sanitation: Centre and State Governments have been directed to take
proper measures to provide medical care to Transgender people in the hospitals
and also provide those separate public toilets and other facilities. Further,
they have been directed to operate separate HIV/Sero-surveillance measures for
transgender people.[15]
Socio-Economic
Rights: Centre and State Governments have been asked to provide the community
various social welfare schemes and to treat the community as socially and
economically backward classes. They have also been asked to extend reservation
in educational institutions and for public appointments.
Stigma
and Public Awareness: These are the broadest directions - Centre and State Governments
are asked to take steps to create public awareness so that Transgender people
will feel that they are also part and parcel of the social life and not be
treated as untouchables; take measures to regain their respect and place in
society; and seriously address the problems such as fear, shame, gender
dysphoria, social pressure, depression, suicidal tendencies and social stigma.
The
Court notes that these declarations are to be read in light of the Ministry of
Social Justice and Empowerment Expert Committee Report on Issues Relating to
transgender people.
The third genders in India have emerged as a
strong faction in the LGBT rights. In the contemporary time the Government of
India introduced so many welfare policy and schemes such as, census, documentation,
issuing of the citizenship ID Cards, issuing passports, social-economic
development and constitutional
safeguards for the transgender people. The Mahatma Gandhi National Rural
Employment Guarantee Act (MGNREGA) is a major initiative of the 11thFive
Year
Plan period which brought employment
opportunities for transgender people. The Ministry of Housing and Urban Poverty
Alleviation is the National Urban Livelihood Mission and Healthcare facilities.
The social, economic, political transformation, Housing, legal measures, Police
Reforms, legal and constitutional safeguards to prevent human rights
violations.
Lesbian, gay,
bisexual, transgender and intersex (LGBTI) people
in India face legal and social difficulties not experienced by
non-LGBT persons. Sexual activity between people of the same gender is legal
but same-sex couples cannot legally marry or obtain civil
partnerships. On 6 September 2018, the Supreme Court of India
decriminalized homosexuality by declaring Section 377 of the Indian Penal
Code unconstitutional. The Court unanimously ruled that individual
autonomy, intimacy, and identity are protected fundamental rights.
Homosexual
Marriages: The Global Scenario
Australia’s final parliamentary vote
came on Dec. 7, just three weeks after more than 60% of Australians — voting in
a nonbinding nationwide referendum — said they favored
legalizing same-sex marriage.
And Austria saw a high court ruling on Dec. 5 that stipulated that gays
and lesbians be given full marriage rights by 2019, unless the country’s
parliament enacts legislation countermanding the order.
Worldwide, roughly two-thirds of the
countries that allow gay marriage – 17 of 26 – are in Western Europe.
Still, a number of Western European nations, particularly Italy and Switzerland,
do not allow same-sex unions. And, so far, no countries in Central and Eastern
Europe have legalized gay marriage.
Along with New Zealand, Australia is only the second nation in the
Asia-Pacific region to legalize same-sex unions. (Taiwan’s highest court ruled in favor of gay unions this year, but gave the country’s parliament
two years to implement the ruling.) In Africa, only South Africa allows gays and lesbians to
wed, which became legal in 2006.
In the Americas, five countries besides the U.S. – Argentina,
Brazil, Canada, Colombia and Uruguay – have legalized gay marriage. In
addition, some jurisdictions in Mexico allow same sex couples to wed.
Not surprisingly, same-sex marriage
has advanced mostly in countries and regions where acceptance of homosexuality
is high. In the U.S., for instance, 70% of adults in a survey conducted in June and July 2017 said that
homosexuality should be accepted.[17]
Countries
That Allow Transgender Marriage
The Netherlands (2000)
In December 2000, the Netherlands became the first country to
legalize same-sex marriage when the Dutch parliament passed, by a three-to-one
margin, a landmark bill allowing the practice. The legislation gave same-sex
couples the right to marry divorce and adopt children. The legislation altered
a single sentence in the existing civil marriage statute, which now reads, “A
marriage can be contracted by two people of different or the same sex.”
Australia (2017)
On Dec. 7, 2017, the Australian Parliament passed legislation
allowing gay and lesbian couples to legally wed. Passage came just three weeks
after Australians voted in favor of legalizing same-sex marriage, by a 62% to
38% margin, in a non-binding, nationwide referendum. Along with New
Zealand, Australia became the
second country in the Asia-Pacific region to to make same-sex marriage legal.
Malta’s parliament almost unanimously voted to legalize same-sex
marriage in July 2017, despite opposition from the Catholic Church on the small
Mediterranean island.
On
June 30, 2017, Germany became the 15th European country to enact legislation
allowing same-sex couples to wed. The 393-226 vote in the nation’s Bundestag
(or Parliament) came just days after Chancellor Angela Merkel surprised many by
saying that members of her ruling Christian Democratic Union should be able to
vote their conscience on the issue even though the party formally opposes
same-sex marriage.
On
April 28, 2016, Colombia became the fourth country in Catholic-majority South
America to legalize same-sex marriage, following Argentina, Uruguay and Brazil.
The country’s Constitutional Court, by a 6-3 vote, ruled that that “all people
are free to choose independently to start a family in keeping with their sexual
orientation … receiving equal treatment under the constitution and the law,”
according to the wire service Agence France-Presse.
Eleven years after same-sex
marriage was first made legal in Massachusetts, the U.S. Supreme Court ruled that the Constitution guarantees it
throughout the country. The 5-4 decision rests in part
on the court’s interpretation of the 14th Amendment, and states that limiting
marriage only to heterosexual couples violates the amendment’s guarantee of
equal protection under the law. Before the ruling, 36 states and the
District of Columbia had legalized same-sex marriage. See a
timeline highlighting changes in state policies from 1995-2015.
Obergefell
v. Hodges,[18] is
a landmark civil rights case in which the Supreme Court of
the United States ruled that the fundamental
right to marry is guaranteed to same-sex couples by
both the Due Process Clause and the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution.
The 5–4 ruling requires all fifty states to perform and recognize the
marriages of same-sex couples on the same terms and conditions as the marriages
of opposite-sex couples, with all the accompanying rights and responsibilities.
Greenland (2015)
Greenland,
an autonomous territory of Denmark, was not subject to Denmark’s same-sex
marriage law, which was enacted in 2012. However, legislators in Greenland
passed a bill in May 2015 to legalize same-sex marriage on the world’s biggest
island.
On May 22, 2015, Catholic-majority Ireland became the first country
to legalize same-sex marriage through a popular referendum. More than
six-in-ten Irish voters (62%) voted “yes” to amend the Constitution of Ireland
to say that “marriage may be contracted in accordance with law by two persons
without distinction as to their sex.”
Zappone & Gilligan v. Revenue
Commissioners & Ors[19] was a High Court case which
was one of the first major events in the debate on the recognition
of same-sex marriage in Ireland. The plaintiffs Ann Louise
Gilligan and Katherine Zappone unsuccessfully sought recognition
of their Canadian marriage.
While some Catholic Church leaders opposed the change, Dublin
Archbishop Diarmuid Martin wrote a commentary in The Irish Times newspaper
before the referendum, saying that he would not tell people how to vote and
that he had “no wish to stuff my religious views down other people’s throats.”
Irish Prime Minister Enda Kenny supported the “yes” campaign.
Same-sex marriage is become legal in Finland started in 2017. The
Finnish Parliament approved a bill legalizing same-sex unions in November 2014,
and Finland’s president, Sauli Niinistö, signed the measure into law in
February 2015. The bill started out as a “citizens’ initiative” – a public
petition with a reported 167,000 signatures.
Finland becomes the last of the five Nordic countries to legalize
same-sex marriage, joining Denmark, Iceland, Norway and Sweden.
On June 18, Luxembourg’s parliament, the Chamber of Deputies,
overwhelmingly approved legislation that will allow gay and lesbian couples to
wed and to adopt children. The bill, which took effect in early 2015, was
championed by the country’s prime minister, Xavier Bettel, who is openly gay.
The changes are part of a larger rewrite of the tiny country’s
marriage laws – the first major overhaul since 1804. In addition to allowing
same-sex couples to marry and adopt, the legislation sets the legal age of
marriage at 18 and eliminates the existing requirement that couples who want to
marry must first submit to a medical exam.
On Feb. 4, 2014, the Scottish Parliament voted overwhelmingly to
approve legislation legalizing same-sex marriage. In addition to allowing
same-sex couples to wed, the measure gives churches and other religious groups
the option of deciding whether or not they want to conduct such marriages. The
two largest churches in Scotland – the Church of Scotland and the Roman
Catholic Church – oppose same-sex marriage and lobbied against the bill.
The law took effect and same-sex couples began marrying in Scotland
in December 2014.
On July 17, 2013, Queen Elizabeth II gave her “royal assent” to a
bill legalizing same-sex marriage in England and Wales. The day before, the
measure had won final passage in the British Parliament after months of debate.
The law only applies to England and Wales because Scotland and Northern Ireland
are semi-autonomous and have separate legislative bodies to decide many
domestic issues, including the definition of marriage. While Northern Ireland’s
legislature in April 2014 voted down a measure that would have legalized
same-sex marriage, the Scottish Parliament passed a bill to legalize same-sex
marriage in February 2014.
The new law in England and Wales, which was a priority for British
Prime Minister and Conservative Party leader David Cameron, allowed gay and
lesbian couples to marry beginning March 29, 2014. However, the law prohibits
same-sex weddings within the Church of England, which continues to define
marriage as between one man and one woman.[20]
On May 14, 2013, Brazil’s National Council of Justice ruled that
same-sex couples should not be denied marriage licenses, allowing same-sex
marriages to begin nationwide. (Previously, about half of Brazil’s 27
jurisdictions had allowed same-sex marriage.)
The conservative Social Christian Party has appealed the Council of
Justice’s decision to the Supreme Court, and Brazil’s legislature may still
weigh in on the issue, leaving some uncertainty surrounding the future of
same-sex marriage in the world’s fifth-largest country.
On May 18, French President Francois Hollande signed into law a
measure legalizing same-sex marriage, making France the 14th country to grant
gays and lesbians the right to wed. Although the bill had passed the National
Assembly and the Senate in April, Hollande’s signature had to wait until a
court challenge brought by the conservative opposition party, the UMP, was
resolved. On May 17, France’s highest court, the Constitutional Council, ruled
that the bill was constitutional.
In May 2012, Hollande was elected and his Socialist Party won
majorities in both houses of France’s legislature. True to their campaign
promises, Hollande and the Socialists have pushed through a law that not only
legalizes same-sex marriage but also gives gay and lesbian couples the right to
adopt children—a provision that has drawn especially strong criticism from
French Catholic leaders.[21]
While recent polls show that a majority of French adults support the
law, opposition to the change has been intense. Since the beginning of 2013,
several anti-gay marriage protests with occasionally volatile crowds numbering
in the hundreds of thousands have taken place in Paris and elsewhere.
On April 17, the New Zealand Parliament gave final approval to a
measure that legalizes same-sex marriage, making the Pacific island nation the
13th country in the world and the first in the Asia-Pacific region to allow
gays and lesbians to wed. The measure won approval by a 77-44 margin in the
country’s unicameral legislature, including support from Prime Minister John
Key, and was signed by the country’s governor-general (a process known as royal
assent) on April 19. The law took effect in August 2013.
In 2005, New Zealand enacted legislation allowing same-sex couples
to enter into civil unions. The 2013 measure not only legalizes same-sex marriage
but also allows for gay and lesbian couples to adopt children.
On April 10, the lower house of Uruguay’s Congress passed
legislation legalizing same-sex marriage, a week after the country’s Senate did
so. President José Mujica signed the bill into law on May 3, making Uruguay the
second Latin American country to legalize same-sex marriage, following
Argentina. Civil unions have been permitted in Uruguay since 2008, and gay and
lesbian couples were given adoption rights in 2009.
Uruguay is among the most secular countries in Latin America. A Pew
Research Center study on the global religious landscape as of 2010 found that
roughly four-in-ten Uruguayans are unaffiliated with a particular religion.
About 58 percent of Uruguayans are Christian; in the Latin America-Caribbean
region as a whole, 90 percent of the population is Christian.
In June 2012, Denmark’s legislature passed a bill legalizing gay
marriage. The measure was enacted into law a few days later when Queen
Margrethe II gave her royal assent to the bill.
In 1989, Denmark became the first country to allow same-sex couples
to register as domestic partners. And in 2010, the country enacted a law
allowing gay couples in registered partnerships the right to adopt children.[22]
With the legalization of gay marriage, the Evangelical Lutheran
Church in Denmark (which is the state church), is required to allow same-sex
couples to marry in churches. However, no member of the church’s clergy is
required to perform the wedding of a gay or lesbian couple. In addition, the
law leaves it up to other religious groups to determine whether or not to allow
same-sex weddings in its churches.
Argentina (2010)
In July 2010, Argentina became the first country in Latin America to
legalize same-sex marriage. In spite of vigorous opposition from the Catholic
Church and evangelical Protestant churches, the measure passed both houses of
the Argentine legislature and was signed into law by President Cristina
Fernandez de Kirchner. The law grants same-sex couples who marry all the rights
and responsibilities enjoyed by heterosexual couples, including the right to
adopt children.
In the decade before the enactment of the same-sex marriage law, a
number of local jurisdictions, including the nation’s capital, Buenos Aires,
had enacted laws allowing gays and lesbians to enter into civil unions.
In June 2010, Portugal became the eighth country to legalize
same-sex marriage. Its parliament had passed the measure legalizing gay
marriage earlier in 2010. But following its passage, Portugal’s president,
Anibal Cavaco Silva, asked the Constitutional Court to review the measure. In
April 2010, the Constitutional Court declared the law to be constitutionally
valid. It was signed by Silva in May of that year and took effect one month
later. Portugal’s gay marriage law does not give married same-sex couples the
right to adopt children.
A measure legalizing same-sex marriage passed the Icelandic
legislature in June 2010. Public opinion polls prior to the vote indicated
broad support for the measure, and no members of the country’s legislature
voted against it. Iceland had allowed same-sex couples to register as domestic
partners since 1996. A decade later, the parliament passed a measure allowing
gay couples to adopt children.
After the new law took effect in late June 2010, the country’s prime
minister, Johanna Sigurdardottir, wed her longtime partner, Jonina Leosdottir,
becoming one of the first people to marry under the statute.
In April 2009, the Swedish parliament voted by an overwhelming
majority to legalize same-sex marriage. Gay couples in Sweden had been allowed
to register for civil unions since 1995.
The 2009 law allows gays and lesbians to marry in both religious and
civil ceremonies, but it does not require clergy to officiate at such
ceremonies. The Lutheran-affiliated Church of Sweden, to which roughly
three-quarters of all Swedes belong, has offered blessings for same-sex
partnerships since January 2007. In October 2009, the church’s governing board
voted to allow its clergy to officiate at same-sex marriage ceremonies.
Since January 2009, gay couples in Norway legally have been able to
marry, adopt children and undergo artificial insemination. The new law, which
was passed in 2008, replaced a 1993 law permitting civil unions. It passed
despite resistance from members of the Christian Democratic Party and the
Progress Party, as well as a public controversy over state funding for
fertility treatments for lesbian couples.
The largest religious group in the country, the Lutheran-affiliated
Church of Norway, initially voted to prohibit its pastors from conducting
same-sex weddings. But the Church of Norway changed course and began
sanctioning same-sex weddings in early 2017.
The South African parliament legalized same-sex marriage in November
2006, one year after the country’s highest court ruled that the previous
marriage laws violated the South African constitution’s guarantee of equal rights.
The new law allows for religious institutions and civil officers to refuse to
conduct same-sex marriage ceremonies, a provision that critics claim violates
the rights of same-sex couples under the constitution.
The new measure passed by a margin of greater than five-to-one, with
support coming from both the governing African National Congress as well as the
main opposition party, the Democratic Alliance. However, the traditional
monarch of the Zulu people, who account for about one-fifth of the country’s
population, maintains that homosexuality is morally wrong.
Spain (2005)
A closely divided Spanish parliament legalized same-sex marriage in
2005, guaranteeing identical rights to all married couples regardless of sexual
orientation. The new measure added language to the existing marriage statute,
which now reads, “Marriage will have the same requirements and results when the
two people entering into the contract are of the same sex or of different
sexes.”
Vatican officials, as well as the Catholic Spanish Bishops
Conference, strongly criticized the law, and large crowds demonstrated in
Madrid for and against the measure. After the law went into effect, the
country’s constitutional court rejected challenges from two municipal court
judges who had refused marriage licenses to same-sex couples. The high court
ruled that the lower court judges lacked legal standing to bring the suits.
Same-sex couples in Canada gained most of the legal benefits of
marriage in 1999 when the federal and provincial governments extended common
law marriages to gay and lesbian couples. Through a series of court cases
beginning in 2003, same-sex marriage gradually became legal in nine of the
country’s 13 provinces and territories. In 2005, the Canadian Parliament passed
legislation making same-sex marriage legal nationwide. In 2006, lawmakers
defeated an effort by the ruling Conservative Party of Canada to reconsider the
issue, leaving the law unchanged.
Belgium (2003)
Beginning in 1998, the Belgian parliament offered limited rights to
same-sex couples through registered partnerships. Same-sex couples could
register with a city clerk and formally assume joint responsibility for a
household. Five years later, in January 2003, the Belgian parliament legalized
same-sex marriage, giving gay and lesbian couples the same tax and inheritance
rights as heterosexual couples.
Support for the law came from both the Flemish-speaking North and
the French-speaking South, and the law generated surprisingly little
controversy across the country. The long-dominant Christian Democratic Party,
traditionally allied with the Catholic Church, was out of power when the
parliament passed the measure.
The 2003 law allowed the marriages of Belgian same-sex couples and
recognized as married those from other countries where same-sex marriage was
legal. Those provisions were broadened in 2004 to allow any same-sex couple to
marry as long as one member of the couple had lived in Belgium for at least
three months. In 2006, the parliament also granted same-sex partners the right
to adopt children.[23]
The only opposition in parliament came
from the Christian Democratic Party, which at the time was not part of the
governing coalition. After the law went into effect, the Protestant Church in
the Netherlands, which then represented about 12% of the country’s population,
announced that individual congregations could decide whether to conduct
same-sex marriage ceremonies. Although Muslim and conservative Christian groups
continue to oppose the law, same-sex marriage is widely accepted by the Dutch
public.
Legal Status of Homosexuals in India
Section 377 30 of the Indian Penal Code (1860) relates to Unnatural
Offences and includes homosexuality within its domain. In India this Law
relating to homosexuality was adopted from the British penal code dating to
19th century. Section 377 states:[24]
“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.”
Similarly section 292 of IPC refers to obscenity and there is ample
scope to include homosexuality under this section.
Also section 294 of Indian
Penal Code, which penalizes any kind of "obscene behaviour in
public", is also used against gay men.
It is important to note here that in England the offence of
homosexuality between consenting partners has been abolished by the Sexual
Offenders Act 1967 (that is in the country of origin of this law) whereas in
India, the consent is quiet immaterial for constituting an offence as defined
under this section.
Thus in India it is primarily section 377 which explains and defines
unnatural offences. It was the section which makes Homosexuality illegal with
life imprisonment or with imprisonment for ten years with fine.
Activists Movement in India
Transgender rights activists have been battling against Section 377
for a decade. In 1994, lesbian and gay groups filed a petition challenging the
law in the Delhi High Court. The case has dragged on for five years and has
evoked strong reactions.[25]In
1996 even members of the Indian lesbian collective Stree Sangam made a
presentation on domestic-partnership laws to a government conference on
marriage and family law.[26]
It was "perhaps the first time that a lesbian/gay group [attempted] to
create public opinion on the issues in such a forum," the group said in a
letter to the gay magazine Trikone.[27]"
In Feb 99 there was second national LGBT 55 conference Indian
National Gay Conference YAARIAN -99. Similarly the attacks on the film ‘Fire’
and ‘Girlfriend’ have led a number of organizations to set up the campaign for
Lesbian Rights. 56 The petition, filed by the voluntary organization, argued that
it is wrong for homosexuality to be a punishable offence in 21st century India.[28]
However the most recent legal challenge comes from the Naaz
Foundation Trust, New Delhi. [29]Naaz
India has filed a writ petition challenging Section 377 in the Delhi High Court
on December 7 th, 2001 on the grounds that include:
Section 377 violates the right to life and personal liberty, the
right to equality and the right to freedom guaranteed to all citizens as
Fundamental Rights under Chapter III of our Constitution.[30]
Similarly
other gay and lesbian groups like Hamsafar of Mumbai, Sahayathrika of kerela,
etc. are also raising gay issues in the mainstream.
MARRIAGE UNDER DIFFERENT PERSONAL LAWS IN INDIA
In India, citizens have a choice to be married under
their various personal laws, or a common law of civil marriage. While none of
the acts have explicitly defined marriage as a union between a man and a woman,
it has been interpreted and understood to mean that a marriage is always
between a man and a woman. Words like ‘bride and bridegroom’, ‘husband and
wife’ imply that the laws are valid only for couples of the opposite sex. The
Hindu Marriage Act, 1955, is applicable for Hindus, Sikhs, Jains and Buddhists.
Section 5 of this Act says that a marriage may be solemnized between any two
Hindus, if the bridegroom has completed the age of twenty- one years and the
bride the age of eighteen years at the time of the marriage. Also, Section 60
of the Indian Christian Marriage Act, 1872, lays down that the age of man
intending to be married shall not be under twenty- one years, and the age of
woman intending to be married shall not be under eighteen years. Thus, both
these legislations have heterosexist underpinnings. In the case of Muslims,
they are governed by Islamic Law itself, rather than any codified law of the
Parliament. As per Islamic law, marriage is a contract, and the purpose of
marriage is to legalise sexual relations between a man and a woman, for the
procreation of children (however, this is not a universal view, with other
competing views existing about homosexuality in Islam).
The Special Marriage Act, 1954, allows for marriages
between individuals from different religions and castes. While no separate
definition of marriage is given, the Act also has heterosexist underpinnings,
such as the definition of a ‘prohibited relationship’ which only considers a
relationship between a man and a woman within certain degrees of familial
relations[31].
Naz Foundation v.
Government of NCT of Delhipassed a landmark judgment, decriminalizing
homosexual intercourse between consenting adults. Section 377 of the Indian
Penal Code was adjudged to violate the fundamental right to life and liberty
and the right to equality as guaranteed by the Constitution of India.[32]
Constitutional
Rights Of Transgender People
Preamble to the
Constitution mandates Justice - social, economic, and political equality of
status.Thus the first and foremost right that they are deserving of is the
right to equality under Article 14. Article 15 speaks about the prohibition of
discrimination on the ground of religion, race, caste, sex or place of birth.
Article 21 ensures right to privacy and personal dignity to all the citizens.
Article 23 prohibits trafficking in human beings as beggars and other similar
forms of forced labor and any contravention of these provisions shall be an
offence punishable in accordance with law.
The Constitution
provides for the fundamental right to equality, and tolerates no discrimination
on the grounds of sex, caste, creed or religion. The Constitution also
guarantees political rights and other benefits to every citizen. But the third
community (transgender) continues to be ostracized. The Constitution affirms
equality in all spheres but the moot question is whether it is being applied.
As per the
Constitution most of the protections under the Fundamental Rights Chapter are
available to all persons with some rights being restricted to only citizens.
Beyond this categorization the Constitution makes no further distinction among
rights holders.
Proposed
Solution/ Conclusion Remarks
In spite of
recognition from vedas to Mughal, britisher and modern scenario the transgender
community didn’t got equality before law. Through, the transgender community was given high position
in mughal period and facing many problems obstacles in British colonial rules.
The government should be eradicated the stigma, discrimination and human rights
violation for the betterment of transgender community. If all this are brought
in their day to day life, it would enlarge the growth of transgender community
in India.
In light of the above statement and
research the question is whether the recognition of same- sex marriage would
leads to equality in the society to transgender?
It is high question in our society
because there is lack of implementation of law in our society.
http://modiejohnson.tripod.com/homosexuality.htm
[3]Historical
Evolution of Transgender Community in Indiahttp://www.trp.org.in/wp-content/uploads/2015/10/ARSS-Vol.4-No.1-Jan-June-2015-pp.17-19.pdf
[5]According to Transgender
folklore, in the epic Ramayana when Lord Rama leaves for exile with Sita and
Lakshmana, he is followed by people and at the banks of the river, at the edge
of the forest he turns and appeals to his followers to wipe their tears and
says ‘men and women please go back and perform your duties’. He turns and never
looks back. While returning back after fourteen years he finds a group of
people still waiting for him. Upon questioning he realizes that the words ‘men
and women’ were not meant for the group and hence they stayed back. This was
the transgender group that waited for Lord Rama for fourteen years. Lord Rama
blessed transgender for their devotion as they waited for his return for
fourteen years (Lal 1999; Krishna and Gupta 2002).
[6]In one of the myths of the Hindu
religion, Lord Shiva breaks off his phallus and tosses it and the phallus
breaks in pieces and extends fertility over the entire earth. Though Lord Shiva
loses the power to procreate, his phallus becomes a symbol of ‘universal
fertility’ and therefore one can trace the cult of lingam (phallus) worship.
This is seen as an exact description with hijras who themselves are impotent
but bless others for fertility (Lal 1999).
https://twitter.com/srisri/status/410810667176697856
https://gupea.ub.gu.se/bitstream/2077/32545/1/gupea_2077_32545_1.pdf
[10]Preeti Sharma, “Historical
Background and Legal Status of Third Gender In Indian Society”, IJRESS, Vol.ED
– 2 (12), December. 2012.
[12]Tmp 20966
Transgender Paper 1488766684 | Transgender
https://www.scribd.com/document/327905779/Tmp-20966-Transgender-Paper-1488766684
[16]https://www.weforum.org/agenda/2017/03/what-you-need-to-know-about-lgbt-rights-in-11-maps
[18]576 U.S. ___ (2015)
[20]Countries That
Allow Gay Marriage Around The World
http://www.pewforum.org/2017/08/08/gay-marriage-around-the-world-2013/
[21]Countries That
Allow Gay Marriage Around The World
http://www.pewforum.org/2017/08/08/gay-marriage-around-the-world-2013/
[24]
KD GAUR Commentary on Indian Penal Code
[25]Urvashi Vaid ‘Building bridges:
thoughts on Identity and South Asian G/L/B/T Organizing’ Trikone Magazine,
Tenth Anniversary Issue, 1996.
[27] http://www.trikone.org/
[28] Naaz Foundation Trust, New Delhi
[29] A group dedicated to halting the
spread of HIV and AIDS in India, where about 7 million people are believed to
be infected.
[30]Although first time the high
court in Delhi has dismissed the legal petition that sought to legalise
homosexuality. The court ruled that the "validity of a law" cannot be
challenged by anyone who is "not affected by it".
[31]
www.lawctopus.com/academike/same-sex-marriages-in-india
[32]
(2014) 1 SCC 1