Open Access Research Article
THE NEED FOR LEGALISING SAME SEX MARRIAGE IN INDIA: A FUTURE POSSIBILITY OR A POSSIBLE APPREHENSION.
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THE NEED
FOR LEGALISING SAME SEX MARRIAGE IN INDIA: A FUTURE POSSIBILITY OR A POSSIBLE
APPREHENSION.
AUTHORED
BY- ANURAG SIGOTIYA
ABSTRACT
Same-sex marriage holds the same core
purpose as any marriage: it's about two individuals who share a deep bond and
want to commit to each other for a lifetime. The push for legalising same-sex
marriage in India stems from the core principles of equality and human rights.
Denying LGBTQ+ individuals the right to marry their partners not only violates
their fundamental human rights but also fosters societal prejudice and
exclusion.
Basically, there are some questions
that arise in this regard: can same-sex marriage be made legal in personal law?
or we need a new law to govern same-sex marriage because marriage itself
includes many questions such as how to devolve the property of the parents to
their heirs. and in same-sex marriage, there is no law to govern this. In this
paper, we used a doctrinal analysis to understand how important it is to
legalise same-sex marriage in India.
Legalising same-sex marriage in India
is a crucial step toward ensuring equality and inclusion in society. It is
about providing equal rights and recognition to all couples, regardless of
their sexual orientation. By embracing marriage equality, India can create a
more compassionate and fair society that respects and values diverse forms of
love and relationships. It’s not just about legal rights; it's about
acknowledging the dignity and worth of every individual, irrespective of who
they love.
key words: same- Same sex marriage,
sexuality, LGBTQ, personal laws.
INTRODUCTION
Same sex marriage refer to the
marriage between the same gender. Previously, having a marriage between the
same gender was considered to be taboo, or it was assumed to be some kind of
mental disorder. but with the evolution of the time, in this 21st century now
people started accepting it's normal and marriage to the same gender is now a
matter of right.
the popularity of the same sex
marriage accepted in the world wide. Almost 35 country gives a legal status to
the same sex marriage and now its time for India to provide a legal status to
same-sex marriages similar to heterosexual marriages.
It is a high time for all the country
to treat the same sex marriage as a matter of the right. if two individual fall
in love with each other and want to commit to each other for a lifetime, it is
a duty of the society to treat them with the same dignity and status that is
provided to the heterosexual marriage. providing a legal status to the same sex
marraige is proved as a milestone in the ongoing struggle of equality.
LGBTQ+ stands for the Lesbian, Gay,
Bisexual, Transgender, and Queer ("+" include the various other
identities like pansexual, asexual, intersex, etc). they are diverse forms of
community whose sexual orientation is different from the societal norms.
each latter of LGBTQ describe the diverse form of community and identity,
and every community has a different struggle and challenges in their life which
demand for the equal right and opportunity which is still not provided in this
21 century. The LGBTQ+ community's journey shows a continued struggle for
inclusion, visibility, and the right to exist themselves freely and openly in
this modern society.
HISTORICAL
ASPECT
Ancient time
In ancient times, the vedas, the kama
sutra and the Mahabharata were historical books of India that discribe a deep
understanding of gender and sexuality . in the kamasutra it provide a knowledge
about the same sex relationship without any judgement. further In the famous
tample of india like khajuraho and konark describe the diverse forms of sexual
intimacy, which was accepted by the society at that time in the form of
sculpture and artwok in temple. by the above observation we can say that
in the ancient time there was existence of diverse form of sexual relationship
which was accepted by the society at large. ancient history of the india
indicate the acceptance of diverse forms of relationship and love now the
question arises as to why we not accept at this in this modern era.
medieval time
During the medieval period, same-sex
marriage began to lose its diverse form and became taboo. In this era, marriage
was performed according to the societal norms , legal frameworks and
religious practices . marriage between the man and woman was guided by customs
and norms for the procreation of children and social stability.
Manusmriti or Kautilya's Arthashastra
rarely talks about same- sex marriage in regard to formal marriage . even in
manusmriti, it was described that those who engage in gay and lesbian behavior
were punished by fines, caste loss and whip stroke. from this era same sex
marriage not consider normalize and due to fear of punishment, people began to
hide their identity and even society unaccepted these kind of
relationship.
Modern time -
In modern times, we can say that same
sex marriage has go through milestone changes in legal, social, and cultural
aspects. Now, it is a beginning where same sex marriage get a momentum and its
start recognized by different country. Several countries, for example the
Netherlands in 2001, legalizing same-sex marriage, granting equal rights,
recognition, and responsibilities to couples regardless of their gender. these
legal changes in different country trigger the demand of granting the equal
right , protection and legal status in the other country .the struggle for
legalising same sex marriage in the world wide is needed to be addressed it is
a matter of choice and not of biology.
INTERNATIONAL
ASPECT OF THE SAME SEX MARRIAGE
Global movement for the same sex
marriage get tigger in the international level. number of the country recognise
same sex marriage as a matter of the legal right and provide a same status and
dignity which is similar to the heterosexual marriage. many developing
countries such as the United States, France, Brazil and Denmark give legal
status for the same sex marriage and many other countries are in stage to
provide the same. In 1st April 2001, the Netherlands became the first country
to provide a legal status to the same sex marriage. even our neighboring country
Nepal provided legal status to same sex marriage in the year 29 Nov 2023.
same sex marriage is also influenced
by the cultural, religious, and historical aspects of the society in legalising
a same sex marriage. even if the country legalise the same sex marriage but the
society still not accept that so its become very difficult for the LGBTQ
community to take the breath in the open environment, so it becomes the duty to
accept this in the mental level.
there are some legal challenges faced
by the LGBTQ community in some of the country gay and lesbian behavior was
criminalise and who found to do some thing like that was liable for harsh
punishable offence. even there were 10 countries in the world where
homosexuality may be punishable by death some of them are saudi arabia,
afghanistan, sudan and united arab emirates.
United Nations and Human Rights:
International bodies like the United Nations have increasingly focus on
the significant of LGBTQ+ rights as human rights. United Nation
also give a direction on promoting equal rights, challenging
discrimination, and ensuring protections for LGBTQ+ individuals worldwide.
LANDMARK
JUDGEMENT
1- Naz Foundation v Government of NCT
Delhi
2- NALSA v. Union of India
3- Justice (Retd.) K. S. Puttaswamy
v. Union of India
4- Navtej Singh Johar v. Union of
India
1- Naz Foundation v Government of NCT
Delhi
In this case, the supreme court
passed a landmark judgement and decriminalize section 377 the Indian Penal
Code, which was homosexuality. An NGO that was Naj Foundation working for the
prevention from the HIV/AIDS, filed a petition in 2001 challenging Section 377
of the Indian Penal Code, which criminalized consensual sexual acts between
same-sex individuals.
This case went through a several
legal proceedings, and it was stated that section 377 breached the right to
equality and dignity that was guaranteed by the constitution and at the end the
Delhi High Court passed a landmark judgment and decriminalizing consensual
homosexual acts between adults.
This judgement challenged in the
supreme court, although the supreme court recriminalise the section 377 of the
Indian Penal Code. but in the year 2018 when supreme court review its judgement
by the five judges bench and it passed a landmark judgement and
criminalise the section 377 of the Indian Penal Code. this judgement provide a
ample of status and dignity to the LGBTQ community.
2- NALSA v. Union of India
The Supreme Court of India passed a
land mark judgement in 2014 that recognized and affirmed the identity of
transgender individuals in the country.
The case contemplate around the
recognition of the fundamental rights of transgender people, addressing issues
related to their gender identity, discrimination, and access to various rights
and opportunities.
In its judgment, the Supreme Court
recognized the rights of transgender community to self-identify as a
their gender, national Legal Services Authority emphasize upon the
significance of self-perceived gender identity as a fundamental aspect of dignity
and status . The supreme court state that transgender people should be
recognized as a "third gender," granting them legal right and
protection under the law.
furthermore this The judgment also
give focus on the rights of transgender individuals to equality, non-discrimination,
and equal opportunities in education, employment, healthcare, and other areas.
It directed the government to take measures to provide affirmative action and
social welfare schemes for the transgender community, that can help the
transgender in getting the equal status and opportunity in the society.
This case was proved as
milestone judgment in the recognition and protection of transgender rights in
India, laying down significant guidelines and directions for the government to
ensure the fundamental rights and opportunity to the transgender.
3- Justice K. S. Puttaswamy (Retd.)
v. Union of India
This case was prove as a milestone in
the ongoing struggle of transgender in getting equal right, protection and
privacy. its implications have played an important role in advancing the rights
of transgender community in India.
In this case supreme court
recognition the "Right to privacy" as a fundamental right which play
a important role in the life of transgender community. It refine the dignity and
status of individuals in determining their identity, including gender
identity. This landmark judgment laid down principles that have been used to
support the rights of transgender community to determine their
self-identify as a "third gender" without fear of discrimination or
intrusion into their private lives.
Transgender individuals often face
challenges related to privacy, particularly concerning their personal identity
and the disclosure of their transgender status as when anybody know about this
they do not treat them as a human and this lead to violation of their right to
privacy . The Puttaswamy case's recognition of the right to privacy as a
fundamental right has provided a foundation for protecting the privacy and
autonomy of transgender individuals in India.
It has boost the rights to
confidentiality concerning their gender identity and personal information. This
recognition forms a basis for policies and legal frameworks aimed at ensuring
the protection of transgender individuals' privacy rights, safeguarding them
from undue intrusion, discrimination, or harassment based on their gender
identity.
moreover, the principles and
guidelines provided in the Puttaswamy case have been proved as an instrumental
which was used in framing the laws and policies that aim to protect the privacy
of transgender individuals in various spheres, including healthcare, education,
employment, and access to public services, fostering a more inclusive and
respectful environment for the transgender community in India.
4- The Navtej Singh Johar v. Union of
india.
This case proved as a watershed
judgement in the battle of providing a equal right, status and privacy to the
LGBTQ community. In this case Navtej singh johar was a petitioner who challenge
the constitutionality of Section 377 of the Indian Penal Code which is related
to the consensual homosexual activities.
In the year 2018, a five-judge
bench of the Supreme Court of India heard the case and delivered a historic
judgment. The court declared that consensual adult homosexual acts were not
illegal and striking down Section 377 of the Indian Penal Code. This verdict
effectively decriminalized same-sex relations in India, and also strengthen the
right of the LGBTQ+ community.
The judgment in the Navtej Singh Johar
case emphasized the principles of equality, dignity, and non-discrimination
among the LGBTQ community irrespective of their sexual orientation. It marked a
significant shift in societal perceptions and legal recognition, promoting
and acceptance of the LGBTQ+ community in India and which also shows the
acceptance of diverse form of relationship in india.
ARGUMENT IN
FAVOUR OF SAME SEX MARRIAGE
same-sex marriage emphasis upon
the legalization of various fundamental principles and human rights. Here are
some key fact in favor of same-sex marriage:
Equality and Human Rights:
It state that denying same-sex couples
the right to marry is a violation of their basic human rights and equality
under the ambit of constitution . They argue that all individuals, apart from
their sexual orientation, should have equal right to marriage and this right
should not be based upon their sexual orientation.
Love and Commitment:
we presume that Marriage is a symbol of love
and commitment. when heterosexual couple are in love they make a commitment to
marry each other that give a legal status and dignity to there relationship in
the society, so just because of different sexual orientation i.e (same sex)
they are not allowed to get married it's violation of their fundamental right.
Legal Protections and Benefits:
Marriage grants various legal protections and
benefits, such as inheritance rights, healthcare decision-making, access to
joint health insurance, tax benefits, and adoption rights. Denying same-sex
couples the right to marry just because of their different sexual orientation
denies them from these legal protections and societal benefits.
Family and Stability:
by Legalizing same-sex marriage is give
equal status similar to the heterosexual relation which strengthen families and
promote stability. Allowing same-sex couples to marry allows them to create
stable and supportive family, which benefits to both couple and thier child
which they may raise.
Social Acceptance and Inclusion:
Legalizing same-sex marriage is presume to
step forward to the social acceptance and inclusion of LGBTQ+ individuals. It
promotes a more inclusive society where diverse relationships are recognized
and respected.
Overall, the argument for same-sex
marriage is grounded for the demand of equality, fairness, and the recognition
of the rights and dignity of LGBTQ+ individuals to form loving, committed
relationships and acceptance of diverse form of relationship in the
society.
ARGUMENT IN
AGAINST OF SAME SEX MARRIAGE
Opponents of same-sex marriage often
present arguments based on various social, moral, religious, and traditional
perspectives. Here are some common arguments against same-sex marriage:
Religious Beliefs:
opponent of same sex marriage presume
that marriage is a religious sacrament and it only perform between the male and
female, and they believe same sex marriage is not a marriage at all.legalizing
same-sex marriage goes against their religious, custom, and the sanctity
of marriage.
Traditional Values:
Some people emphasize the traditional
understanding of marriage as a union between only a man and a woman, rooted in
cultural and societal norms that have existed for centuries. They believe that
making a changes in the foundation of marriage ruien the tradition of marriage.
Parenting and Child Rearing:
criticizer of same sex marriage believe that
child must be raised by the male and female that was the reason
supreme court in its recent judgement deny the LGBTQ community to adopt a
child, it state that child raised by the male and female is most beneficial for
the child.They raise concerns about the impact of same-sex parenting on
children's upbringing, believing that children need both male and female role
models for proper development.
Social Stability:
Opponents of same-sex marriage believe that
making changes in the defination of the marrige will impact on the social
stability and it could have unforeseen consequences on family structures and
society as a whole.
Preservation of Culture:
many criticizer of same sex marriage
give a argument hat adopting a same sex marriage will violate the traditional
understanding of marriage which is essential for maintaining cultural values
and societal norms that have been a part of a community's heritage for generations.
It's important to note that these
arguments against same-sex marriage often stem from deeply held beliefs,
cultural norms, and personal convictions. However, these viewpoints have been
challenged by those advocating for equality, human rights, and the recognition
of diverse relationships in modern societies.
LEGALISING
SAME SEX MARRIAGE IN INDIA PROCESS AND METHOD
In India, the legal recognition of
same-sex marriage is currently not Provided for under personal laws. Marriage
laws in India are governed by various personal laws based on religion and
custom, such as Hindu, Muslim, Christian, and others, each having there own way
to perform and regulate marriage.
As per the last update in January
2022, India has not enacted specific legislation allowing same-sex marriage.
The existing marriage laws are gender-specific and define marriage as it only
perform between a man and a woman.
To legalize same-sex marriage in
India, it may require either amending existing personal laws to remove gender-specific
language in the all personal law or enacting new legislation that give
recognition to the same-sex unions.
In legalising a same sex marriage in
india it would involve a complex legal proceeding including potential
amendments to existing personal laws, and religious sentiments, and addressing
constitutional aspects related to equality and non-discrimination between the
diverse form of government.
Therefore, the way to legalizing
same-sex marriage in India may involve a combination of legislative changes, judicial
decisions, and evolving societal acceptance toward LGBTQ+ community
because even if it will legalise by the parliament but not accepted by the
society so it just become a right in paper not in reality.
CONCLUSION-
same sex marriage is not a new concept
in this 21st century its exist in india from the vedic and Mahabharata time,
the sculpture in the tample was a evidence of acceptance of diverse form of
relationship in the india and just because of change in the norms and punative
major taken by the society these LGBTQ community left with a minority population.
from very long time there rights were suppresed just because they have a
different sexual orientation and now this is a time to provide them equal
rights and status similar to the heterosexual couple.
In legalising a same sex marriage is
a significant step in providing a equality to the heterosexual couple, in india
there is need to go through a complex legal frameworks, societal attitudes, and
cultural considerations. There is need to amend the defination of marriage in
personal law and make it gender neutral. The enactment of new legislation is
important to give recognition to same- sex marriage.
Ultimately, the path to legalizing
same-sex marriage involves a collective journey toward a more inclusive and
equitable society, reflecting the principles of fairness, dignity, and respect
for all.???????
Article Information
THE NEED FOR LEGALISING SAME SEX MARRIAGE IN INDIA: A FUTURE POSSIBILITY OR A POSSIBLE APPREHENSION.
Authors: ANURAG SIGOTIYA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/01
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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