Open Access Research Article
LEGALISATION OF SAME SEX MARRIAGE: A WAY TOWARDS REMOVING HOMOPHOBIA FROM THE SOCIETY
Published Paper
Article Details
Abstract
Key Words: LGBTQ, Marriage, Law, Rights,
Equality
Introduction
While giving its judgement in Naz
Foundation v. Govt. of NCT in Delhi[2]
the Delhi High Court used the term,’ queer’ (used as an insult in many
English-speaking countries) which means ‘strange’ or ‘odd’ in the succeeding
phrase: “When everything associated with homosexuality is treated as bent,
queer, repugnant”[3] ,“MSM”
(men who have sex with men)[4] is
useful to prevent HIV transmission. But it ignores the reason of strong
attraction between men and men and simultaneously woman and woman. Thus, these
people are as “same-sex loving persons”.[5]
Same Sex Marriage has become a widespread
issue as it raises questions on the foundation of society and the traditional
concept of family.[6] It has
been associated with the cultural and religious norms[7]
which shows contempt towards same sex marriage/union.[8]
The granting of the same legal status
to cis-gendered people that is the unions that fall outside the traditional
heterosexual marriage (i.e., “one man, one woman”) with to those that fall
within it is referred to as Marriage equality. Marriage Equality is both an
easier and harder milestone to achieve. It is easier because discrimination is
not on the basis of the desire to do a certain act but on the basis of sexual
orientation. It is hard because marriage as a social institution is celebrated
as a union between opposite-sex marriages.
In simple words, religion is
asked to celebrate and recognise the things that are happening behind closed
doors and not to simply ignore and refuse the same.[9]
The way the term marriage is defined
as the union of two people of the opposite sex can be challenged at a
constitutional level, that is, in violation of Right to choose life partner/
Right to life with dignity/ Right to autonomy or discrimination on the basis of
sexual orientation.[10]
The terms Sexual Orientation and
gender identity means the characteristics that every human being possessed. It
was always known by society that some people have physical disabilities and
most people have a religion. However, the concept of sexual orientation and
gender identity does not exist for years. The reason for the non-recognition
for the same was the presumption that every individual is born heterosexual or
to be non-transgender.[11] As the
cases of minority sexual orientation or gender identity are rising, it becomes
essential to describe both these terminologies.
The orientation is concern with to
the choice of sex of partner for sexual activity and the long-term sexual
couple emotional relationships whereas Gender Identity not merely have
reference to the person’s recognition as a male or female but to their physical
or biological or birth sex conformity. It also refers to their ways of physical
expressions and characteristics including their hairstyle, dress, makeup, voice
and mannerism.
The concept of legal sex linked the
concept of gender identity and sexual orientation. One cannot determine the
sexual orientation of a transsexual, transgender, or intersex person, for legal
purposes unless they have been assigned a legal sex. The conformity with
psychological sex would be brought by changing their legal sex and will,
therefore, their sexual orientation will also be going to change. For example,
a person who is born a male and is heterosexual (attracted to a woman) might
identify her gender identity as female but remain attracted to women after
alteration from male to female. On condition this happens, then, she will be
identified out of a heterosexual man to identifying publicly as a transexual
lesbian woman. Due to the above-established linkage, section 377 become an
issue for transgender, transexual and intersex persons in India. The sexual
activity of a male with another male was legally caught by section 377, even
though, they might contemplate themselves engaging in legal female-male sexual
activity according to their gender identity. Thus, it was decriminalised.
However, Same Sex Marriage still remains a Research Issue in India.
With reference to the same this paper
is further divided into five parts and will answer the following three Research
Questions.
1) How Sexual Orientation and Gender
Identity is related to various International and Human Rights Law?
2) Why the Right to Marriage should be
given to the LGBTQ community? How the
personal laws are challenged on the Constitutional Grounds?
3) Why not granting the Right to Marry
to the LGBTQ community would be the violation of Article 14, 15 and 21 of the
Constitution of India?
(I) HOW SEXUAL ORIENTATION AND GENDER
IDENTITY IS RELATED TO VARIOUS INTERNATIONAL AND HUMAN RIGHTS LAW?
Human rights Law and International
Law have started commonly using both the terms sexual orientation and gender
identity on regular basis. The person who identifies themselves as heterosexual
rarely finds it necessary to describe their sexual orientation. In simple
words, they are considered as normal and therefore the term hetrosexual is
considered equivalent to non-controversial. However, the term bisexual,
lesbian, gay remains controversial and have become a problem in most of the
countries of Global South Asia including India. Still, in most country sexual
activity remains unwilling to discuss the sexual activity. However, the first
decriminalisation did not criminalise adult sexual activity (private or
consensual) in the US state of Illinois in 1961.[12]
Countries which acknowledged LGBTQ
conjugal rights.
The significance of constitutional
rights for lesbian and gay persons was highlighted in the judgement of National
Coalition for Gay and Lesbian Equality v Ministry of Justice
(1998)[13] The South African transitional and final
constitutional adopters, therefore, recognised discrimination based on race and
discrimination based on sexual orientation.[14]
South Africa was further followed by
several countries like Fiji Islands in 1997[15],
Ecuador in 1998[16], Portugal
in 2004[17] and
Bolivia in 2009[18]. There
are several states or territories in various federal countries like Brazil[19], Germany[20] and
Argentina[21] that have
adjoined sexual orientation or a similar ground to the non-discrimination
articles of their constitutions.
The European Convention on Human
Rights (November 4, 1950) is supplemented by the Charter of Fundamental Rights
of the European Union (December 7, 2000) under Article 21(1) which provides:[22]“Any
discrimination based on any ground such as sex, race, …. religion…or sexual
orientation shall be prohibited.”
Under the new Article 6(1) of the Eu
Treaty, the Charter becomes legally binding and enforceable by the EU’s highest
court (The Court of Justice of the European Union, based in Luxembourg) on
December 1, 2009.
A strict justification test for the
cases necessitating discrimination based on sexual orientation and has been
established by The European Court of Human Rights in Strasbourg (France).[23]
In other way analogies have been
drawn by the Court between sexual orientation religion, race and sex.
In Smith & Grady v
United Kingdom (September 27, 1999), the Court held that the expulsion of
all lesbian and gay members of the armed forces cannot be legitimize by the
hostility of their heterosexual colleagues towards them.[24]
Further, the Court held in the case
of Mouta v Portugal (December 21, 1999) that the gay father
sexual orientation could not be treated as a negative factor in deciding
whether or not to award him custody of his daughter from a prior marriage to a
heterosexual woman.[25]
In S.L. v Austria
(January 9, 2003)[26],
the Court concluded that just like the differences [in treatment] based on sex,
differences [in treatment] based on sexual orientation require particularly
serious reasons by way of justification… and vividly stated that the concept of
sexual orientation is protected under Art. 14. [the provision of
non-discrimination of the Convention].”
In Egan v Canada (1995)
the Supreme Court of Canada held (9-0)
that under section 15(1) of the Canadian Charter of Rights and Freedoms, sexual
orientation is an analogous ground, and discrimination based on race, religion
and sex is prohibited by section 15(1).
Gradual Elimination of Discrimination Based on Sexual
Orientation
The five steps to gradually evolve
the society from a stance of persecuting and rejecting its gay and lesbian
minority to the one of respecting and accepting them as equal citizens and
human beings are
i.
Repeal
of the death penalty for same sex sexual activity
ii.
No
punishment for such activity
iii.
Removal
of all discrimination from the criminal law against such activity
iv.
Discrimination
based on sexual orientation should be prohibited.
v.
Family
Law reforms.
Although, France completed all five
steps in 2011, after decriminalising it 220 years back, every country’s
national government may take these steps at its own pace. The fifth step in
England and Wales started with the conclusion of the Adoption and Children Act,
2002[27] and the
Civil Partnership Act, 2004 and continued with the enactment of the Human
Fertilisation and Embryology Act, 2008.[28]
However, the same-sex couples are still not able to marry in England and Wales.[29]
(II)
WHY THE RIGHT TO MARRIAGE SHOULD BE GIVEN TO THE LGBTQ COMMUNITY? HOW THE PERSONAL LAWS ARE CHALLENGED ON THE
CONSTITUTIONAL GROUNDS?
There are majorly three purposes
served by the union of two people which is known as Marriage. The three
purposes are:
(1) Marriage is recognised as a symbolic
gesture between the parties: To be married to someone and being recognised in
society has an intrinsic value in one’s life. However, two people are not
prevented from living together in the same manner as married spouses even when
they are not legally recognised, e.g., by living together and foreswearing
other intimate relationships.[30]
(2) Marriage is essential for the
acceptance of the relationship in society as a whole: In short of the married
status, couples face obstacles moving together in public showing intimacy and
even being not recognised as a normal respectable member of society.[31] Same-sex
marriage recognition would be the step towards social acceptance.[32]
(3) Being married makes it easier to
adopt the legal rights and obligations associated with the marriage. - With the
solemnisation of marriage comes the recognition of various legal rights, for
example, maintenance and protection from domestic violence; inheritance rights,
etc. These rights are not recognized for unmarried partners.
Challenging the personal laws on constitutional grounds.
The practice of religion includes
acts incidental to religion apart from religious beliefs and purely religious
rites.[33] Personal
laws in India cover adoption and succession to property, marriage and divorce
and has separate ‘personal laws’ applicable to different religions.
History of Personal Laws
Before the advent of British
colonisation, the laws existed on the basis of local customs in the form of
sastras and sutras. Warren Hastings’ Regulations of 1772 provided the genesis
of the separate personal laws which bring forth the cases of marriage,
inheritance, caste, and religious usages or institutions, the “law of the
Koran with respect to Mahometans and those of the Shaster with respect to
Gentoos” would be have to do with.[34]
The pre-colonisation tradition of
variegated customs was not restored post-independence but was amalgamated and
supplemented into a Uniform Hindu Code. The Uniform Civil Code was founded on
socio-political reflection rather than religious foundations; thus, the Hindu
Code represents a break from the sastras.[35]
In
State of Bombay v Narasu Appa Mali[36] the
court while criminalising bigamy among Hindus notably note that Article 13 does
not constitute personal law of the Constitution.[37]
Further, Justice Gajendragadkar, vividly stated in his opinion that the
validity of personal laws is derived from the scriptures and not from the legislature.[38] Chief
Justice Chagla while giving the judgement stated that ‘Hinduism’ does not
include bigamy. Gajendragadkar, J. held that bigamy was not obligatory but only
permissive.[39] The
primary thrust of his reasoning was that a distinction had to be made between
‘legitimately religious’ matters and other matters.[40]
The concept of the essential
religious practices from Commissioner, Hindu Religious Endowments[41],
Madras v Shri Lakshmindra Thritha Swamiar of Sri Shirur Mutt[42]
to Sardar Syedna Taher Saifuddin Saheb v State of Bombay[43] to Commissioner
of Police v Acharya Jagdishwarananda Avadhuta,[44]
the courts have analyse laws prohibiting or restricting religious practices by
scruitnizing whether the practice is an ‘essential’ or ‘integral’ part of the
religion.[45] In Kantaru Rajeevaru v
Indian Young Lawyers Association[46]
amongst several questions the Supreme Court agreed to refer the credibility of
the essential religious practices test to a larger bench.[47]
MARRIAGE EQUALITY AND ITS CONSTITUTIONAL FOUNDATIONS
Sex Discrimination on the cornerstone of Sexual Orientation
Article 15 does not explicitly
indicate sexual orientation as a forbid ground for discrimination.
Nevertheless, while also providing conceptions of constitution application in
specific cases, a common feature of a constitutional concept is providing by
the constitution.[48] Thus, the
Right to Equality and freedom from non-discrimination is broadly stated under
Article 14, while Article 15 underlines five specific grounds stating
non-discrimination and one particular form of discrimination, i.e.
untouchability is prohibited under Article 17.[49]
Therefore, Article 14 provides for more enumerated grounds for the
non-discrimination principle than Article 15.
In National Legal Services
Authority of India v Union of India (NALSA),[50]
Article 14 which includes the term ‘person’ is gender-neutral and includes all
genders.[51] It
further stated that under Article 15 in the context of discrimination, “sex”
includes “gender identity” and therefore, both Article 14 and Article 15
encompasses discrimination on the basis of gender identity and sexual
orientation.[52]
The Court propounded that sexual
orientation is indivisible from sex: a gay man is gay conforming to the fact
because he is attracted towards men however, his right to marry has been denied
solely because he is a man and wants to marry a man.[53]
The heteronormative institution of marriage necessitates that men will marry
women and vice versa. Therefore, it classifies men into two categories: those
who want to marry men and those who want to marry women, where, one group of
men could marry and the other group of men's rights have been denied.[54] Same is
the case goes with the women who want to marry men and who want to marry women
only. Marriage has always been heteronormative in India. This classification
can be challenged on three grounds under the provisions of the Competition.
That the following classification constitutes sex discrimination under Article
15, That the following classification is permissible class legislation and
arbitrary under Article 14 and That the following classification does not
comply with the Yogyakarta principles incorporated under the Constitution.
The legitimisation of sexuality
within the conjugal boundaries for begetting alone by the state has been held
to be outdated and unreasonable.[55]
In addition, if the ultimate motive
of the espousal is procreation, then the alliance involving impotent/infecund
individuals an individual at a loss to procreate would be void. Also, post
Navtej Johar's decision it cannot be said that one is natural and the other is
unnatural.[56] Hence,
the notion of marriage as one man, one woman fails under the standard
formulation of the non-discrimination principles stated underneath Articles 14
and 15. Lastly, Yogyakarta principles recognize the universal enjoyment of
human rights, notwithstanding of gender identity and sexual orientation and
also the rights against discrimination whose foundation is gender identity and
sexual orientation[57] and the
right to equal opportunity, equity and justice before the law[58], with
regard to family and home[59] the right
to privacy and the right to found family in its distinct forms.[60] Thus,
same-sex partners are entitled of all the rights as regards to the
acknowledgement of marriage and all its connected rights as opposite-sex
partners.
(III) WHY NOT GRANTING THE RIGHT TO MARRY
TO THE LGBTQ COMMUNITY WOULD BE THE VIOLATION OF ARTICLE 14, 15 AND 21 OF THE
CONSTITUTION OF INDIA?
‘One Man, One Woman’ Marriage by virtue of Constitutional Morality
Constitution Morality is an
independent ground for challenging the constitutionality of enactment from the
“inherent elements in the constitutional norms and the conscience of the
Constitution.”[61] It
compels the state to promote and advance constitutional order of values.”[62] The case Navtej
Singh Johar v Union of India ruled for the primacy of constitutional
morality over well-liked morality.[63]
On the notions of “evolving social
morality”[64] the
Supreme Court has recognised that social revulsion with regard to relationships
which are opposite to customary marriage is not a ground for intrusion with
personal autonomy.[65] In this
regard, the Court scrutinises the constitutionality of a law when it is called
upon to interpret it not by the ethics of the time in which it was validated.
Nonetheless, Constitutional morality goes a step further disregarding the
social morality of the present and asking not what is moral today but what
ought to be moral all time.
Chief Justice Misra vividly held in
his judgement that while testing the constitutional validity of the impugned
provisions of law, the said provisions have to be declared unconstitutional, if
a constitutional court is of the view that the impugned provision falls foul to
the precept of constitutional morality.[66]
It was further echoed by Justice Chandrachud, who manifestly stated that the
right to privacy, “away from the glare of societal expectation, enables an
individual to exercise his or her autonomy.”[67]
Further, it was held that society could not dictate the expression of sexuality
between consenting adults and constitutional morality will impact upon any law
which deprives LGBT individuals of their entitlement to full and equal
citizenship. Any culture or tradition will be superseded by Constitutional morality.[68] Thus,
marriage between same-sex individuals cannot be denied on the foundation of any
customs or values and should be protected as an expression of sexuality under
the Constitution.
In K.S. Puttaswamy v Union
of India[69], the
Supreme Court without exception proclaimed the Fundamental Right to privacy,
including autonomy over personal and intimate choices. In Puttaswamy it was
explicitly stated that the Right to privacy includes the right of individuals
to take decisions about their life to communicate themselves to choose or not
to choose which activities to take part in[70]
and vividly asserted that sexual orientation is a key element of the right to
privacy and as the matter of fact of Article 14, Article 15 and Article 21 of
the Constitution.[71]
The legal foundation for marriage
equality was also expressed in general terms by Justice Chandrachud for
marriage equality[72] by
stating that the right to intimacy energe from an individual’s entitlement to
share in sexual relations on their own terms.[73]
Individuals have the freedom to enter into relationships unbridled by the
binary of sex and gender and receive the necessary institutional
acknowledgement to consummate their relationships and therefore are restricted
neither by religion nor by tradition to enter into such relationships.[74] Thus, the
right to marry a significant other of the same sex as the dimension of the
right to privacy and self-determination has been recognised by the Honourable
Supreme Court.
Marriage confined to Man and Women As a Practice
Indispensable To Religion.
Marriage is held sacred in various
religions and is considered to be a part of personal laws. Without question and
beyond doubt, that the definition of marriage forms a fundamental part of
personal law. However, marriage is within the boundaries of Constitutional
scrutiny. The practice of triple talaq was struck down in the case of Shayara
Bano v Union of India.[75]
1. Same-Sex marriage under Hindu Law
If certain conditions are met,
Section 5 of the Hindu Marriage Act provides that the marriage can be
solemnised between “any two Hindus”. On its face, this provision does not limit
the marriages between a man and a woman.
The gender-neutral terms ‘party’ and
‘parties’ have been followed except in subsection (iii) which states that this
subsection requires that “the bridegroom has completed the age of twenty-one
years and the bride the age of eighteen years at the time of the marriage”.
Similarly, the statute uses the words ‘bride and bridegroom’ or ‘husband and
wife’ elsewhere to describe the parties to a marriage.[76]
This concludes that the act does not contemplate marriage except between a man
and a woman.[77]
The definition of “degrees of
prohibited relationship” under section 5(iv) read with section 3(g)(iv), for
instance, includes brother-sister, uncle-niece, and aunt-nephew pairings,
therefore, not contemplating similar pairings with both parties being of the
same-sex. Such a prohibition is to prevent inbreeding which is obviously not a
consideration for same-sex couples.
Performance of the customary rites of
either party can solemnise a Hindu Marriage.[78]
The saptapadi (seven steps or
circuits around the sacred fire) and datta
homa (invocation before the sacred fire)[79]are
though not performed by all the Hindu communities, but are the customary
practices to solemnise a Hindu marriage. The Hindu priest believes that Hindu
marriage is between two souls, which are not bound to any particular gender[80], thus,
there is no bar under the law.
2. Muslim and Christian Personal Laws
views on Same Sex Marriage
The Shariat predominantly not
exclusively guide the personal law for Indian Muslims under ‘The Muslim
Personal Law Application Act, of 1937’. However, for instance, the apostasy of
a wedded Muslim woman impulsively nullifies her espousal; certain readings of
the Shariat have been codified.[81]
Marriage Equality is not as a matter
of course recognised under Muslim Law;[82]
Unequivocally, after the detailed study of the position of Islamic law, the
Quran regards such unions of same-sex marriage as ‘culprits’ those who seek
delight outside an Muslim marriage.[83]
The law holding Christians,
accompanied by Hindus, is to a large extent supplemented by act, viz., the
Indian Christian Marriage Act, 1872. However, like to Holy Quran, the Bible
regards homosexuality as sin[84] (though
most Christians believe that it is not the correct interpretation of the
Christianity.).[85]
The Indian Christian Marriage Act, of
1872 lay out that a nuptial can be formalize in the middle of two Christians or
uniting one Christian and one non-christian[86],
certainly, it does not include same-sex marriages. The parties to the marriage
are referred to as “the man and the woman” or “husband and wife” therefore, not
contemplating same-sex marriages.[87]
Thus, there is a need to resort to
constitutional arguments to realise marriage equality under the Muslim and
Christian Laws by striking down the prohibition of same-sex marriage in the
law.
HOW RIGHT TO MARRY CAN BE GRANTED
THROUGH THE INTERPRETATION OF DEFINITION OF MARRIAGE CONSTITUTED IN THE SPECIAL
MARRIAGE ACT.
Seeking refuge under the Special
Marriage Act.
Same-sex marriages can be solemnised
through the Special Marriage Act, of 1954, despite the fact, that the marriage
equality cannot be place within the composition of existing personal law.
Special Marriage Act permits marriages to be solemnised and celebrated by
whatsoever means which would encompass customary religious ceremonies. The
language referred to as “the male” and “the female” and living together as
husband and wife”[88]
can be interpreted and read as to mean ‘a male’ or ‘a female’[89],
and “living together as husband and wife” can be read to mean living in the way
of a husband and wife that is as spouses, with the associated civic and
legitimate obligations. This interpretation can be further supported by the
Apex Court judgement in Danial Latifi v
Union of India[90]
in which it was held that since Muslim Personal Law does not cover a
condition where a divorced wife is not able to maintain herself, the lucrative
furnishing of maintenance under Section 125 of the CrPC could be assist of even
by Muslim women. Likewise, two Muslims may be able to get benefit from the
Special Marriage Act even though Islamic Law broadly does not authorize the
same-sex marriage.[91]
AFTERTHOUGHT: LEGAL REFORMS NECESSARY
BEYOND THE RECOGNITION OF SAME-SEX MARRIAGE.
To attain considerable
equality between the treatment of same-sex relationships and opposite-sex
relationships following legal reforms are necessary for the coverage of
same-sex relationships and opposite-sex relationships.
(1) The concept of marriage for
procreation is an antiquated concept. It must be clarified that same-sex
marriage cannot be nullified for want of procreation. Therefore, a legislative
change is necessary to statutes which proclaim impotency or failure to
procreate as a ground for divorce.[92]
Thus, same-sex marriage cannot be nullified for want of procreation.
(2) When considering the adoption of
children same-sex couples should be seen and treated on an equal footing with
opposite-sex couples.
(3) Equal protection should be granted to
same-sex partners under the Protection of Women from Domestic Violence Act,
2005 and the law providing for maintenance. The Domestic Violence Act only
recognises domestic violence as committed by a man against a woman.[93] Thus, a
man could never be an aggrieved person under the Domestic Violence Act.
Simultaneously, a woman can be by virtue of her gender can be an ‘aggrieved
person’, however, her spouse can never be a ‘respondent.’[94]
Therefore, these statutes should be amended to recognize the rights of same-sex
couples.
CONCLUSION
A restriction on same-sex marriages
is illegitimate under the law and the constitution as declared by the
honourable Supreme Court of India as the existing law restrict itself to ‘one
man, one woman’. Nevertheless, significant laws have been passed to safeguard
the rights of the LGBTQ community,
yet, consequent problems related to
homophobia are still rampant in the country. The stigma related to Homophobia
is still prevalent which have given rise to several social and legal problems.
Although, marriage is an essential part of the religion, secular laws should be
enacted recognising that the same sex partners have a right to marry The
Hon’ble Supreme Court should not be prevented from proceeding with reformative
laws due to the religious opposition. Also, to maintain India’s international
reputation, legislation should be pursued with regards to same sex marriage at
the national level. The Hon’ble Supreme Court should not be prevented from
proceeding with reformative laws due to the religious opposition.
[3] Law Reports of the Commonwealth, 2009, pp.838 at 883.
[4] Sachit Bhogle. “The Momentum of
History- Realising Marriage Equality in India.” 12 NUJS L. Rev. 3-4, 2019.
[5] Robert Wintemute. “Same-Sex Love
and Indian Penal Code Sec. 377: An Important Human Rights Issue for India.” 4
NUJS L. REV. 31, 2011.
[6] Weisbrod. “Family, Church, and
State: An Essay on Constitutionalism and Religious Authority.” 26 Journal
of Family Law 754 (1988), http://digitalcommons.uconn.edu/ law_papers/146); K.
Hossain, “In Search of Equality: Marriage Related Laws for Muslim Women in
Bangladesh” 5(1) Journal of International Women’s Studies, 2003, pp. 97.
[7] Stellina
Jolly, Ritika Vohra. “Recognition of Foreign Same- Sex Marriage in India: A
Legal Exploratory Analysis, Journal of the Indian Law Institute” July –
September 2017, Vol. 59.3, pp. 302-326.
[8] P. D. Young. “Religion Sex and
Politics: Christian Churches and Same-Sex Marriage in Canada” Fernwood
Publishing, 2012, pp. 60.; L. D. Wardle. “Marriage and Religious Liberty:
Comparative Law Problems and Conflict of Laws Solutions” 12 Journal of Law
& Family Studies, 2010, pp.333.
[11] Decriminalisation of Same Sex Sexual Activity.
[12] Williamn, Eskidge. “Dishonorable Passions: Sodomy
Laws in America.” 2008, pp. 118-127.
[13] National Coalition for Gay and Lesbian Equality and
Another v Ministry of Justice and Others, 1999 (1) SA 6.
[14] Edwin Cameron. “Sexual Orientation and the
Constitution.” South African Law Journal, vol.450, 1993, pp. 468-69.
[15] Constitution Amendment Act 1997, § 38(2)(a).
[16] Constitution, 1998, Article 23(3), replaced by
Constitution, 2008, Articles 11(2), 66(9), 83(14).
[17] Constitution, 2004 (amendment), Article 13(2)
[18] Constitution (approved by referendum on 25 Jan.
2009), Article 14. II.
[19] Mato Grosso, Constitution, 1989, Art. 10. III;
Sergipe, Constitution, 1989, Art. 3.11 Federal District, Organic Law, 1993,
Article 2; Alagoas, Constitution, 2001 (amendment), Art. 2-I; Santa Catarina,
Constitution, 2002 (amendment), Art. 4-IV; Par, Constitution, 2007 (amendment),
Art. 3-IV.
[20] Berlin, Constitution, 1995, Article 10(2),
Brandenburg, Constitution, 1992, Article 12(2), Bremen, Constitution, 1947 (as
amended on 4 Sept. 2001), Article 2; Saarland, Constitution, 1947 (as amended
in Feb. 2011), Article 12; Thuringia, Constitution, 1993, Article 2(3).
[21] Autonomous City of Buenos Aires, Constitution, I
October 1996, Article 11.
[22] See http://vvAwwwr.europarl.europa.eu/charter/pdf/text
en.pdf.
[23] All cited judgments of the Court are available at http:
vXww.echr.coe.int.
[24] Smith & Grady v United Kingdom (1999) 29 EHRR
493.
[27] §49-51 and §144(4)
[28] §42-47 and §53-54.
[29] Ferguson & Others v. United Kingdom, Application
No. 8254/11.
[30] Ruth Vanita. “Democratising Marriage: Consent, Custom
and the Law in Law Like Love: Queer Perspectives on Law”, 338, 347, 352 (Arvind
Narrain & Alok Gupta), 2011, pp. 338,347,352.
[31] Aditya Menon, “Delhi Landlords Will Not Rent Homes
To Muslims, Live-In Couples, India Today”, October 1, 2012, available at https://www.indiatoday.in/india/north/story/delhi-landlords-will-not-rent-homes-to-muslimslive-in-couples-117469-2012-10-01;
Monalisa Das, “No Law Prohibits Unmarried Couples From Staying Together,
Still Hotels Refuse, The News Minute”, May 19, 2015, available at
https://www.thenewsminute.com/lives/507, Ananya Bhattacharya, “Married Couples
Only: Conservative India’s Moral Policing Extends To Airbnb, Quartz India”,
July 18, 2017, available at
https://qz.com/india/1030463/married-couples-only-conservative-indias-moral-policing-extends-to-airbnb.
[32] Sachit Bhogle. “The Momentum of History- Realising
Marriage Equality In India”, 12 NUJS L. Rev. 3-4 2019.
[33] Commissioner, Hindu Religious Endowments, Madras v
Shri Lakshmindra Thritha Swamiar of Sri Shirur Mutt, (1954) SCR 1005; Ratilal
Panachand Gandhi v State of Bombay, AIR 1954 SC 388.
[34] M.P. Singh. Outlines of Indian Legal &
Constitutional History. 118 (Universal Law Publishing Co., 8th ed., 2006;
Nandini Bhattacharya-Panda. “Appropriation and Invention of Tradition: The East
India Company and Hindu Law in Early Colonial Bengal” 2007.
[35] Saptarshi Mandal. “Do Personal Laws Get their
Authority from Religion or the State: Revisiting Constitutional Status” 51(50)
Eco. & Pol. Weekly, 2016.
[36] State of
Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.
[37] ibid.
[38] Id., 90 (per
Gajendragadkar, J.).
[39] Id., 94
(per Gajendragadkar, J.).
[40] Id.,
94.
[41] Commissioner, Hindu Religious
Endowments v Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt, 1954 AIR
282.
[43] Sardar Syedna Taher Saifuddin Saheb v State of
Bombay, AIR 1962 SC 853.
[44] Commissioner of Police v Acharya Jagdishwarananda
Avadhuta, (2004) 12 SCC 770.
[45] Mohd. Hanif Quareshi v State of Bihar, AIR 1958 SC
731.
[46] Kantaru Rajeevaru v. Indian Young Lawyers Assn., 2019
SCCOnline SC 1461, ¶¶ 5, 7.
[47] ibid.
[48] Gautam Bhatia, supra note 42, 65. See also Gautam
Bhatia, supra note 42, 91-92 (commenting on the holding in State of Kerala v.
N.M. Thomas, (1976) 2 SCC 310 that Article 16(4) permitting the State to make
special provisions for the reservation of appointments or posts for
underrepresented groups is a facet of, and not an exception to, the rule in
Article 16(1) prohibiting discrimination on specified grounds).
[49] Id., 48.
[50] National Legal Services Authority of India v Union of
India, (2014) 5 SCC 438.
[51] Id., ¶82.
[52] National Legal Services Authority of India v Union of
India, (2014) 5 SCC 438, ¶¶82-82.
[53] Andrew Koppelman. “Why Discrimination Against Gay Men
and Lesbians is Sex Discrimination.” 69(2) NYU L. REV. 197 (1994).
[54] Categories like “men” and “women” are used for
simplicity’s sake. Sexual orientation, like gender identity, exists on a
spectrum and defies neat categorisation as “attracted to men” and “attracted to
women” in the same manner in which gender identity is not limited to
“identifies as a man” and “identifies as a woman”.
[55] Navtej Singh Johar v Union of India, (2018) 10 SCC 1,
¶478 (per Chandrachud, J.).
[56] Id., ¶418 (per Chandrachud, J.).
[57] The Yogyakarta Principles, Principle 1.
[58] The Yogyakarta Principles, Principle 2.
[59] The Yogyakarta Principles, Principle 6
[60] The Yogyakarta Principles, Principle 24.
[61] Govt. of NCT of Delhi v Union of India, (2018) 8 SCC
501, ¶ 63.
[62] Navtej Singh Johar v Union of India, (2018) 10 SCC 1,
¶ 459 (per Chandrachud, J.).
[63] Navtej Singh Johar v Union of India, (2018) 10 SCC 1,
¶¶ 128 (per Misra, C.J.), 349, 351-352 (per Nariman, J.), 459 (per Chandrachud,
J.). Malhotra, J. did not refer to constitutional morality. Instead, she relied
on S. Khushboo v. Kanniammal, (2010) 5 SCC 600, ¶ 46, which states that social
morality, being inherently subjective, cannot be the basis for criminal law
that unduly interferes with personal autonomy (Navtej Singh Johar v. Union of
India, (2018) 10 SCC 1, ¶641.3).
[64] John Vallamattom v Union of India, (2003) 6 SCC 611,
¶¶33, 36.
[65] S. Khushboo v Kanniammal, (2010) 5 SCC 600, ¶46.
[66] Navtej Singh Johar v Union of India, (2018) 10 SCC 1,
¶136 (per Misra, C.J.).
[67] Navtej Singh Johar v Union of India, (2018) 10 SCC 1,
¶474 (per Chandrachud, J.).
[68] Navtej Singh
Johar v Union of India, (2018) 10 SCC 1, ¶¶93-99, 106, 190, 201-203 (per Misra,
C.J.).
[69] K.S. Puttaswamy
v Union of India, (2017) 10 SCC 1.
[70] Anuj Garg v
Hotel Association of India, (2008) 3 SCC 1, ¶¶34-35.
[71] K.S.
Puttaswamy v Union of India, (2017) 10 SCC 1, ¶¶144-145, 298 (per Chandrachud,
J., speaking for himself, Khehar C.J.., Agrawal J., and Nazeer J.), ¶645, 647
(per Kaul J.).
[72] An explicit statement to the effect that same-sex
marriage was legalised, with the consequent and necessary changes to the
various statutes governing marriage, would be obiter dictum, given that Navtej
Johar was restricted to the question of §377 IPC.
[73] Navtej Singh Johar v Union of India, (2018) 10 SCC 1,
¶479 (per Chandrachud, J.).
[74] Id., ¶482 (per Chandrachud, J.).
[75] Shayara Bano v Union of India (2017) 9 SCC 1.
[76] The Hindu Marriage Act, 1955, §§7(2), 9, 13(2), 24.
[77] Thomas John, Liberating Marriage: Same-Sex Unions and
the Law in India in LAW LIKE LOVE: QUEER PERSPECTIVES ON LAW 355, 361 (Arvind
Narrain & Alok Gupta ed., 2011). Arunkumar v. Inspector General of
Registration, AIR 2019 Mad 265.
[78] The Hindu Marriage Act, 1955, §7.
[79] S. Nagalingam v Sigagami, (2001) 7 SCC 487.
[80] Ruth Vanita. “Democratising Marriage: Consent, Custom
and the Law in Law Like Love: Queer Perspectives on Law”, 338, 347, 352 (Arvind
Narrain & Alok Gupta), 2011, pp. 338,347,352.
[81] Dissolution of Muslim Marriages Act, 1939, §4.
[82] Junaid Jahangir. “Same-Sex Unions in Islam.” 24(3)
Journal of Theology and Sexuality 157, 2018.
[83] “The Quran.”
Chapter 23, Verse 5-7.
[84] Bible Gateway,
Leviticus 18:22, available at https://www.biblegateway.com/passage/?search=Leviticus+18%3A22&version=NIV
(Last visited on May 5, 2023).
[85] “Debating Bible Verses on Homosexuality.” New York
Times, June 8, 2015, available at
https://www.nytimes.com/interactive/2015/06/05/us/samesex-scriptures.html (Last
visited on May 6, 2023).
[86] The Indian Christian Marriage Act, 1872, §4.
[87] The Indian
Christian Marriage Act, 1872, §60.
[89] Nayantara Ravichandran. “Legal
Recognition of Same-sex Relationships in India.” 5 J. IND. L. & SOC. 95,
105, 2014.
[91] Sachit Bhogle. “The Momentum of
History- Realising Marriage Equality in India”, 12 NUJS L. Rev. 3-4 2019.
[92] The Madhya Pradesh High Court has held that the
inability to procreate alone is not a sufficient ground for nullifying a
marriage, and must be accompanied by a mental disorder that would make it
unreasonable for the petitioner spouse to live with the spouse having the
mental disorder. Alka Sharma v. Abhinesh Chandra Sharma, AIR 1991 MP 205.
[93] The Domestic
Violence Act, 2005, §§2(a).
[94] The Domestic
Violence Act, 2005, §2(f). See also Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC
755, ¶¶38.5 (observing, obiter, that a domestic relationship between same-sex
partners does not amount to a “relationship in the nature of marriage” under
the Protection of Women from Domestic Violence Act, 2005).
Article Information
LEGALISATION OF SAME SEX MARRIAGE: A WAY TOWARDS REMOVING HOMOPHOBIA FROM THE SOCIETY
Authors: AAYUSHI SAXENA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/05/15
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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