Tesa Rose Sunny; 3rd year; St Joseph's College of Law, Bengaluru
RESEARCH QUESTIONS
Is it possible to legalize same-sex marriages under personal laws by looking at the evolution of same-sex relationships in India?
How is societal and constitutional morality influencing the concept of sexuality and the legalization of same-sex marriage today?
Has the decriminalization of homosexuality made it simpler to legalize same-sex unions?
Should a new law govern same-sex marriages and various marital rights resulting from them? What are the issues that can arise due to such legislation?
INTRODUCTION
The majority of marriage laws in India utilize gendered terminology, and is a prevalent cultural bond that is only acknowledged as being between men and women. The legality of same-sex unions in India is unclear, as is the scope of any associated rights and repercussions. As homosexuality is typically seen to be a Western idea, embracing it can be difficult on both a social and legal level. The legalization of same-sex marriage appears to be the next logical step after the noble decision to decriminalize homosexuality. However, despite numerous complaints from organizations and people, India has upheld its constitutional prohibitions against homosexual marriages. The law does not recognize several same-sex relationships, and as a result, gay couples, regardless of their relationship duration, are denied many of the legal and financial benefits that come automatically with married status. Jobs, the ability to file joint tax returns, access to health benefits, and post-death rights including foreign inheritance are a few examples of these. Patriarchal de facto marriages are backed by all of these benefits in general society, but homosexual people cannot take advantage of them. This violates their constitutionally guaranteed fundamental rights. Since same-sex marriages' ability to be legally recognized depends heavily on their social and legal standing, arguments made by both supporters and opponents of same-sex marriage concerning social morality and religion are discussed to assess the significance of recognizing such a union legally. In its ruling in Navtej Singh Johar v. Union of India, the Supreme Court aims to demonstrate the importance of constitutional morality in securing fundamental rights for the LGBTQ community, however, in the recent judgment by the Supreme Court of India in Supriyo v. Union of India, the five-judge bench ruled against same-sex marriage in India.
Evolution of same-sex relationships in India
As shown by several publications from ancient times, homosexual behavior has a long history on the Indian continent. In historical works like the Rig Veda, monuments, and relics going back to about 1500 BC, sexual behaviors among women are portrayed as insights into a female-oriented universe of pleasure and productivity. After the rise of British imperialism and Vedic Mahayana Buddhism, these relationships lost some of their significance. The Aryan colonization of 1500 B.C. sought to subdue homosexuality as the patriarchal culture rose to power, according to Giti, one of the 27 matravratas in Sanskrit. The Manusmriti describes consequences for same-sex behavior including flogging, caste deprivation, and severe financial fines.
In the early Hindu scriptures, the idea of gender fluidity was accepted by both humans and yakshas. In ancient India, homosexuality was not considered a crime. The Kama Sutra's Sutra 36 refers to sexual actions between people of the same sex as sadharana, meaning that they are ordinary. From a scientific perspective, homosexuality is seen as a typical variation of human sexual inclination rather than a mental illness. Nonetheless, homosexuality was seen as a mental problem in the 19th century, and as science advanced, it began to be seen as a sickness that could be treated. India was constrained by the restrictions of Victorian Law, which made homosexuality illegal, until 2018. Europeans were unable to comprehend India's support of gender flexibility. In India, this marked a turning point in the application of fundamental and human rights. Before then, homosexuals were denied several important civil rights, including the right to equality, freedom, and the right to life and personal liberty.
After the expansion of Europe, the Western attitude toward sexual orientation has had a profound influence on expectations for reproduction. These historical ideas and customs have already been gradually integrated into the justification of imperialist sexual preferences, and they may be identified by responses to virtually any kind of 'unnatural' sex. India accepted the contemporary perspective of "psychological and ethical" sexual identity as "abnormal" rather than acknowledging biological expressions of propensity as part of Indian civilization. Throughout the past century, there have been significant changes in how homosexuality is perceived. From 1974, gay behavior was no longer considered deviant behavior and was thus excluded from the classifications of psychiatric disorders. Many countries, most notably India, have made homosexuality less punishable. Numerous nations have passed legislation and taken other actions to safeguard the LGBTQ+ community against unjustified discrimination. In 1994, South Africa became the first nation in the world to recognize the equality of gays and lesbians.
All types of consenting but non-begetting sex were prohibited under Section 377 of the Indian Criminal Code, 1860, which was imposed by the British colonialist government. The oppressive edict did not just target homosexuality; it also attacked all other forms of contemporary sexual behavior, including heterosexual partnerships. This rule thus had no place in a representative democratic democracy like India and was only a remnant of Victorian dogma. Regrettably, it ultimately took more than 70 years and over 20 years of legal fights to repeal this outdated law, which had become a weapon for harassing and taking advantage of anybody who did not fall into the conventional binary of gender and sexual orientation.
Same-sex marriage and personal laws
Personal laws influenced by religion govern marriage in India. Hindus are subject to the Hindu Marriage Act of 1955, Christians to the Indian Christian Marriage Act of 1872, and Muslims to uncodified Muslim personal laws. Examining the Hindu Marriage Act, of 1955 carefully reveals that there is no legal provision that marriage takes place between a man and a woman. Even though same-sex marriages were permitted under the HMA, 1955, there are no provisions to govern the said couple after their marriage, such as matters of restitution of conjugal rights, divorce, alimony and maintenance, legal guardianship, and implementation of child rights. Instead, all conjugal rights arising out of marriage are to be applied to "husband" or "wife." The question of whether a transwoman can be considered a woman and regarded as a "bride" under Section 5 of the HMA, 1955, arose in the case of Arunkumar and Sreeja vs. Inspector General of Registration and Others. The court upheld the statement and held that any transwoman or intersex person who identifies as a woman can be considered a bride.
However, in Abhijit Iyer v. Union of India and Others, it was argued that marriage under the HMA, 1955 was legal because the statute's language is gender-neutral, and same-sex marriage is not expressly forbidden. It was also argued that the non-recognition of the right to marry a person of one's choice is an obvious violation of fundamental rights under Articles 14 and 19 of the Indian Constitution. The social rejection of gay partnerships is a result of the differentiation created between homosexuals and heterosexuals in terms of marriage privileges. Yet, the Central Government contended and urged the Delhi High Court that weddings in India may only be permitted between biological man and woman, i.e., heterosexuals, notwithstanding the legalization of homosexuality.
Marriage is viewed in Islam as a contract, or Mithaqun Ghalithun (a strong agreement). Marriage is a contract between a man and a woman to realize the procreative role of a male and female; the consideration for the same is; the financial obligation to be paid by the man in exchange for exclusive sexual access to the woman. Since homosexuals are unable to fulfill this requirement of marriage, neither their marriage nor their relationship can be recognized.
Effect of Societal and constitutional Morality on same-sex marriages
The 2018 Johar verdict, which overturned a harsh colonial-era legislation outlawing same-sex carnal contact, is essential in assessing the constitutional legality of same-sex marriage because it highlighted the significance of constitutional morality. It was declared that morality as interpreted by the Constitution must take precedence over morality regulated by societal norms and customs in circumstances involving people's life and liberty or any other basic right. The Supreme Court has acknowledged the Constitution's biological nature on several occasions, referring to it as a "living organ" that must change over time.
The Court must uphold constitutional rights and morality, as it has done in numerous instances of socially unconventional marriages. In this case, it was determined that defying social conventions to enter into inter-caste and inter-religious marriages is no different from defying them to enter into same-sex marriages. The Suresh Kumar Koushal v. Naz Foundation decision was seen to have been wrong because it was "social morality relying on majoritarian perception" but, in reality, problems relating to sex that are protected by the constitution should be regulated by constitutional morality. For LGBTQ rights, it is therefore clear that constitutional morality prevails over societal morality, but what implications does this have for the legalization of same-sex unions?
The refusal to legalize same-sex marriages would violate fundamental freedoms like the right to life (Article 21), the right to equality (Article 14), the freedom of speech and expression (Article 19(1)(a)), the right to live in dignity (Article 21), the right to choose a partner (Article 21), and the right to privacy (Article 21). (Art 21). The State of India is required by Article 15 of the Indian Constitution to refrain from discriminating against anybody based only on their religion, race, caste, sex, place of birth, or any combination of these. The right of a person to select their spouse is a component of their dignity and is guaranteed by both Articles 19 and 21 of the Constitution, it was determined in Shakti Vahini v. Union of India. So, it is clear from constitutional morality that the denial of same-sex marriage recognition is unconstitutional and has to be changed.
Decriminalization of homosexuality and same-sex marriages
The criminalization of same-sex relationships made it impossible for LGBTQ+ people to live together as a pair or even to freely show their love for their partners. The fact that same-sex relationships were frequently disallowed or stigmatized made it difficult to lobby for same-sex weddings as a result. Decriminalization assisted in removing some of the legal obstacles that hindered same-sex couples from receiving legal recognition and protection. This therefore improved the atmosphere for lobbying and legal actions aimed at recognizing same-sex unions. Decriminalization alone, meanwhile, does not inevitably result in the acceptance of same-sex unions.
Marriage and cohabitation are not the same thing. The partners of a marriage get advantages on the social, economic, and moral fronts. Gay couples are not accepted in society since there are no laws governing same-sex unions. This can fuel prejudice and worsen the stigma associated with homosexuality. Even though homosexual couples are permitted to cohabitate, they are not eligible for the protections against domestic abuse, maintenance payments, and alimony that are available to heterosexual couples who live together. To ensure the protection of fundamental rights, the couple must be able to exercise all of the aforementioned rights.
Decriminalization alone does not, however, guarantee that same-sex weddings will be accepted. It is frequently a protracted and difficult procedure that calls for advocacy, instruction, and legal reform. It also calls for a change in how society views LGBTQ+ people and the acceptance of their freedom to fall in love and start families. In general, although decriminalizing same-sex relationships is a crucial step toward accepting same-sex weddings, it is not the sole component that makes this acceptance possible. It is a difficult and continual process that requires changes in the law, society, and culture.
Need for a new law?
Personal laws may not expressly recognize same-sex marriage, necessitating the creation of new legislation. Same-sex couples are eligible to use the new law. Strangely, homosexual couples are only permitted restricted sexual privileges and no marriage rights while heterosexual couples are mocked for having pre-nuptial relations. It would be very hard to include all of these rights under personal laws because legalizing the practice would entail granting several marital privileges. Hence, new legislation should be created that fully justifies the necessity of the new law as well as the parties' capacity. The essential components for ensuring that marital rights are fulfilled are the regulations for divorce, maintenance, adoption, succession, and inheritance.
It's past time to change the foundation of marriage. It would be false to claim that marriage is just about childbearing in the modern era of women's rights. In Suchita Shrivastava and another v. Chandigarh Government, it was decided by the Supreme Court that a woman’s right to reproductive choices is guaranteed by her right to life under Article 21 of the Constitution of India. Same-sex marriages will primarily help to the sustainability of the environment through population management, since many countries, including India, have established policies and enactments for population control. Second, legalizing same-sex unions would, among other things, result in the enactment and maintenance of legislation. In India, there are 30 million abandoned and orphaned children. These youngsters are denied a joyful family life due to restrictive adoption regulations and the absence of adoption rights for same-sex couples. In Lakshmi Bhayva Taneeru v. Union of India and others, the Delhi High Court ruled that the right to a fulfilling family life is a component of the right to life.
The Special Marriage Act(SMA) makes it simple to accept same-sex unions. Just Section 4(c) has to be amended to make homosexual marriage explicitly lawful by changing the gendered terms, whereby the spouses are exclusively male and female. Even if parts of personal law were changed to accept same-sex partnerships, the Special Marriage Act should be changed in each case to offer the same sanction to unions between members of different religious traditions. The suggested changes would undoubtedly face strong opposition even though they are straightforward to understand and don't seem to hinder religious liberty.
CONCLUSION
In light of the foregoing, it may be said that same-sex marriages must be legally recognized for both social and legal grounds. A blatant form of discrimination against a person's sexual orientation and a denial of their right to liberty—and a violation of their core constitutional rights—is the denial of the ability of LGBTQ community members to select a spouse of their choosing. According to the Supreme Court's decision in the Johar case that constitutional morality must take precedence over societal morality, same-sex marriage may one day be recognized under Indian law because to forbid it would be against the constitution. The SMA can be read down by a judge to include marriages between same-sex couples because its current provisions discriminate against people of a particular sexual orientation under Article 15, or a new law governing same-sex marriages can be created as a practical way to accomplish this goal.
However, Indian society as a whole and Indian personal law are not prepared to legalize same-sex unions in India. The legalization of same-sex unions in India, however, is highly likely in light of pertinent recent rulings and the pressing need to support the LGBTQ+ community. Because a sudden change in marital laws can be chaotic, it is crucial to either create new laws or amend existing ones without upending them.
Quite insightful.