This article on issues & challenges of same sex marriages in India is written by Ahona Pal from Symbiosis Law School, Noida.

INTRODUCTION

Marriage is a socially and ritually recognised institution, traditionally between a man and a woman. Marriage is an integral part of every person’s life. It is through marriage that the human race has propagated future generations. Marriage is the most important institution of human society.[1] It is a universal phenomenon and has been the backbone of human civilisation.  We can say that the Marriage is as old as the institution of the family. Both these institutions are vital for the society. [2]

Family depends upon the Marriage. Marriage regulates sex life of human beings, thereby giving them a chance to procreate, thus aiding the survival of human race. Marriage creates new social relationships and reciprocal rights between the spouses. It establishes the rights and the status of the children when they are born. Each society recognises certain procedures for creating such relationship and rights.[3] The society prescribes rules for prohibitions, preferences and prescriptions in deciding marriage. It is this institution through which a man sustains the continuity of his race and attains satisfaction in a socially recognised manner. Sociologists and anthropologists have given definitions of marriage. Some of the important definitions are given below.

Edward Westermark says[4] “Marriage is a relation of one or more men to one or more women which is recognised by custom or law and involves certain rights and duties both in the case of the parties entering the union and in the case of the children born of it.

As B. Malinowski[5] defines, “Marriage is a contract for the production and maintenance of children”.

According to H.M. Johnson[6], “Marriage is a stable relationship in which a man and a woman are socially permitted without loss of standing in the community, to have children”.

Ira L. Reiss[7] writes, “Marriage is a socially accepted union of individuals in husband and wife roles, with the key function of legitimating of parenthood”.

William J. Goode[8], the famous family sociologist has tried to combine the two objectives of marriage i.e. to regulate sex life and to recognize the newborn.

Although different thinkers have tried to provide definition of marriage, but there is no universally acceptable definition of marriage. There seems to be, however, a consensus that marriage involves several criteria that are found to exist cross-culturally and throughout time. For example, Hindu marriage has three main objectives such as Dharma, Progeny and Sexual Pleasure. Individual happiness has been given the least importance. It is considered to be sacrament, a spiritual union between a man and a woman in the social status of husband and wife. Marriage is cultural specific. The rules and regulations differ from one culture to another. The above discussion helps us to conclude that the boundaries of marriage are not always precise and clearly defined. It is, however, very important institution for the society as it helps in replacement of old and dying population. Let us now consider two contradicting point of views on what marriage is[9]:

Conjugal View[10]: Marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together.

Revisionist View[11]: Marriage is the union of two people (whether of the same sex or of opposite sexes) who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life. It is essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable.

Same-sex marriage is also known as gay marriage. It is the marriage between two people of the same biological sex and/or gender identity. Legal recognition of same-sex marriage or the possibility to perform a same-sex marriage is sometimes referred to as marriage equality or equal marriage, particularly by supporters. The legalization of same-sex marriage is characterized as “redefining marriage” by many opponents. The first laws enabling same-sex marriage in modern times were enacted during the first decade of the 21st century. And as of 28 June 2014, sixteen countries like Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, Netherlands, New Zealand, Norway, Portugal, Spain, South Africa, Sweden, United Kingdom, Uruguay and several sub-national jurisdictions including parts of Mexico and the United States  allow same-sex couples to marry. Polls in various countries show that there is rising support for legally recognizing same-sex marriage across race, ethnicity, age, religion, political affiliation, and socioeconomic status.

 

RIGHT TO MARRY

Marriage is one of the universal social institutions established by the human society to control and regulate the life of man[12]. It is a cornerstone of a society. It is in the family that children learn to become citizens; it is in the family that children learn about relationships; it is in the family that children learn about what is expected of them in society, how to act and how to be[13]. Central to the nuclear family is the traditional idea of marriage, consisting of one man and one woman in a monogamous and permanent relationship. We need to promote and protect marriage to secure a healthier society. Marriage has legitimate recognition to get united. Society accepts union of two souls because primary object of marriage is to beget and bear offspring, and to them until they are able to take care of themselves[14]. Right of all members of family like Right to Respect for private and family life, Right to marry and found family, is foundation of justice, freedom and peace.The definition of marriage can be looked at from a legal perspective. A legal dictionary defines marriage as “the state of being united to a person of the opposite sex as husband or wife in a legal, consensual, and contractual relationship recognized and sanctioned by and dissolvable only by law.”[15] Legally, marriage is a binding contract between the two parties that joins together their possessions, income, and lives. According to the Hindu Law Marriage is a body for the performance of religious duties. It is deemed as a holy union in Hindu Law. It is also considered to be an union of flesh to flesh and blood to blood. It is a religious sacrament and not a civil contract.The Hindu Marriage Act 1955, Sec.5 provides right to marry under statutory condition.

According to the Muslim law, the Quran states “every person must marry”. Quran asserts that marriage is the only way to satisfy one’s desire. Marriage (nikah) is defined to be a contract which has for its object the procreation and the legalizing of children. The right to marry is a component of right to life under art 21 of Constitution of India which says, “No person shall be deprived of his life and personal liberty except according to procedure established by law”. In the context of right to marry, a mention may be made of a few Indian cases. Person who suffering from venereal disease, even prior to the marriage cannot be said to have any right to marry so long as he is not fully cured of disease.

Mr.’X’ v. Hospital ‘Z’[16]: The Court had rested its decision on the facts of the case that it was open to the hospital or the doctor concerned to reveal such information to persons related to the girl whom he intended to marry and she had a right to know about the H.I.V. positive status of the appellant. If that was so, there was no need for the Court to go further and declare in general as to what rights and obligations arise in such context as to right to privacy or confidentiality or whether such persons are entitled to be married or not or in the event such persons marry, they would commit an offence under law or whether such right is suspended during the period of illness. Therefore, all those observations made by the Court in the aforesaid matter were unnecessary, particularly when there was no consideration of the matter after notice to all the parties concerned. In that view of the matter, court held that the observations made by this Court, except to the extent of holding as stated earlier that the appellant’s right was not affected in any manner in revealing his HIV positive status to the relatives of his finance, are uncalled for. We dispose of these applications with these observations.

Right to marriage is provided under human right charter that to under the heading of” Right to have family”.In Indian Constitution this right not expressly mentions.But it is interpreted under Art 21 Right to Marry is universal right. It is available to all persons but whether it includes same sex marriage. Marriage right is recognised at international level but in India there is no special law for marriage right .marriage right is mentioned under various covenant but it does not include person of same sex marriage. Indian constitution provides for right to marry but it is not fundamental right.

Caste system has been a rigid part of Indian customs since ages. It is an evil that has made the rules and regulations of the Hindu tradition biased and unfair.[17]Discrimination based on the caste system has ruined the society and created differences among the people belonging to different castes.[18] Marriage is a sacred institution especially in context of Indian customs. Even when the world has become so advanced there are people who follow strict caste rules. Marriages in the Hindu society are caste driven; inter-caste marriages are considered to be a sin and are not approved by the elders.[19] There are various reasons because of the Hindu society flinch away from inter-caste marriages like fear of the societal norms and social standing, loss of reputation, cultural difference, backward superstitions, torture that the family and the couple has to face at the hands of the society, etc. The ill-effects of not approving the inter-caste marriages are manifold. It hampers the growth of the society, create fissures among different social groups and castes and poses a threat to the national unity. There have been various instances where couples in inter-case marriges have been driven to commit suicide or killed in the name of honour-killings.[20]

In a landmark judgment[21], the Supreme Court viewed the right to marry as a component of right to life under Art 21 of Indian Constitution the court observed that: “This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste marriage the maximum they can do is that they can cut off social relations with the son or daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste marriage”.Both the parents in the case were adults and so free to marry of their choice. ’There is no bar to an inter-caste marriage under Hindu marriage Act or any other law’.

Inter-caste marriages are in fact in the national interest as they will result in destroying the caste-system. The India Human Development Survey (IHDS), conducted by the National Council for Applied Economic Research (NCAER) and the University of Maryland, reported that Just five per cent of Indians had married a person from a different caste. When married women aged between 15 and 49 were asked if theirs was an inter-caste marriage, just 5.4 percent said yes, the proportion being marginally higher for urban over rural India.[22] Unlike a caste, a religion is a way of life. A religion has far deeper and broader effects on how you lead your life, how you think, how you perceive others etc. than castes. The challenges of inter-religious couples are therefore a lot more complex, running a lot deeper.The social stigma attached to people marrying outside their religion is more scandalous than an inter-caste one.

Indian society is a conservative one. Even in contemporary times when the corners of the whole world are expanding, people hesitate to establish lifelong relations with people or their castes and religions. In such a scenario where the minute issue of caste is such a taboo, accepting same sex marriages becomes all the more difficult. A society where people are killed in the name mixing caste or religion, same sex marriages are inconceivable.

SAME SEX MARRIAGES AROUND THE WORLD

When it comes to LGBT rights, there is still a very real struggle for equality. In many countries, it is shameful to be anything but heterosexual. Members of the LGBT community often have to prove their worth and value in the workplace, and in society as a whole. The outlook for them is a bit brighter in the US and a few other countries, but there’s still much work to be done before the LGBT community is respected all over the world.[23]

USA: In the United States, same-sex marriage has been legal nationwide since June 26, 2015, when the United States Supreme Court ruled in Obergefell v. Hodges[24]that state-level bans on same-sex marriage are unconstitutional, overruling Baker v. Nelson[25]. The court ruled that the denial of marriage licenses to same-sex couples and the refusal to recognize those marriages performed in other jurisdictions violates the Due Process and the Equal Protection clauses of the Fourteenth Amendment of the United States Constitution.[26]

UK: The legislation to allow same-sex marriage in England and Wales was passed by the Parliament of the United Kingdom in July 2013 and came into force on 13 March 2014, and the first same-sex marriages took place on 29 March 2014.[27] Legislation to allow same-sex marriage in Scotland was passed by the Scottish Parliament in February 2014 and took effect on 16 December 2014. [28]The first same-sex marriage ceremonies occurred on 16 December 2014 for same-sex couples previously in civil partnerships. The first same-sex marriage ceremonies for couples not in a civil partnership occurred on 31 December 2014.[29] The Northern Ireland Executive has stated that it does not intend to introduce legislation allowing for same-sex marriage in Northern Ireland. Same-sex marriages from other jurisdictions are treated as civil partnerships.[30]

South Africa: Same-sex marriage has been legal in South Africa since the Civil Union Act came into force on 30 November 2006.[31] The decision of the Constitutional Court in the case of Minister of  Home Affairs v Fourie[32] on 1 December 2005 extended the common-law definition of marriage to include same-sex spouses—as the Constitution of South Africa guarantees equal protection before the law to all citizens regardless of sexual orientation—and gave Parliament one year to rectify the inequality in the marriage statutes.[33] On 14 November 2006, the National Assembly passed a law allowing same-sex couples to legally marry 230 to 41, which was subsequently approved by the National Council of Provinces on 28 November in a 36 to 11 vote, and the law came into effect two days later.[34]South Africa was the fifth country, the first (and only, as of June 2015) in Africa, the first in the southern hemisphere, the first republic and the second outside Europe to legalise same-sex marriage.[35]

Australia: Same-sex unions are treated as de facto unions under the Australian federal law, though each Australian state and territory is entitled to create their own laws with respect to same-sex relationship registers and same-sex partnership schemes.[36] Same-sex couples are prevented from marrying by the definition of marriage contained within the federal Marriage Act (1961), as amended in 2004 by the Howard Government.

LAW AND HOMOSEXUALITY IN INDIA

The last century witnessed major changes in the conception of homosexuality.Since 1974, homosexuality ceased to be considered an abnormal behavior and was removed from the classification of mental disorder. It was also decriminalized in different countries. Since then various states across the globe enacted anti-discriminatory or equal opportunity laws and policies to protect the rights of gays and lesbians. In 1994, South Africa became the first nation to constitutionally safeguard the rights of lesbians and gays. Canada, France, Luxembourg, Holland, Slovenia, Spain, Norway, Denmark, Sweden and NewZealand also have similar laws.The US Supreme Court ordered that no state could pass legislation that discriminated against homosexuals[37]. In India, so far no such progressive changes have taken place and the homosexuals remain victims of violence in different forms supported by the state and society. There is no explicit mention of homosexuality or homophilia in any of the statute books of India. A person cannot be prosecuted for being a homosexual or homophilic. But the sexual act of sodomy is a criminal offence. The major provisions of criminalisation of same-sex acts if found in Section 377 of theIndian Penal Code (IPC) of 1860.Section 377 of IPC reads:

Of Unnatural Offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute carnal intercourse necessary of the offence described in this section.

This provision of the I.P.C. is based on the centuries-old misconception that sodomy and homosexuality is one and the same thing. A homosexual man is viewed as a ‘type of person’ who has only anal intercourse with his partner. However, the emotional attachments, fantasies and affectionate and erotic desire are not been given due consideration. Thus, de jure, it is an attempt to criminalise sodomy while de facto it is an attempt to criminalise and stigmatise homosexuality. Hence conventionally homosexuality is bought as an offence under the IPC. In1987, Tarulata/Tarun Kumar underwent a female to male sex change operation and married Lila in 1989. Lila’s father filed a petition in the Gujarat High Court saying that it is a lesbian relationship and that the marriage be annulled. The petition contends that ‘Tarun Kumar possesses neither the male organ nor any natural mechanism of cohabitation, sexual intercourse and procreation of children’. Adoption of any unnatural mechanisms does not create manhood and as such Tarun Kumar is not a male. The petition called for criminal action underSec. 377 and the case is now pending in Gujarat High Court[38].

In a judgment[39]the Supreme Court was dealing with a case where a man had homosexual relations with a boy with the consent of the boy. The Supreme Court in 1983observed that: ‘the offence is one under Sec. 377, IPC which implies sexual perversity. No force appears to have been used neither omissions of permissive society nor the fact that in some countries homosexuality has ceased to be an offence, has influenced our thinking’. Considering the consent of the boy, theSupreme Court reduced the sentence from 3 years rigorous imprisonment to six months rigorous imprisonment. The Indian Constitution states that ‘there shall be no discrimination on the basis of the sex of a person’ which is a Fundamental Right of the citizens, ‘The term’sex’ although refers to the biological sex of a person as male or female, is broad enough to include sexual orientation also in the present context,Section 292 of IPC refers to obscenity and there is ample scope to include homosexuality under this section.

Despite the existence of alternative marriage systems and customs, the conventional definition of a family includes a man and a woman along with their resultant children. This definition is based on the notion of compulsory heterosexuality and homophobia. There is no legislation at present in India where same-sex couples could register as domestic partnership or civic contract unions. In a small village Angaar in Gujarat, among the Kutchi community a ritualistic transgender marriage is performed during the time of Holi festival. This wedding which is being celebrated every year, for the past 150 years is unusual because Ishaak, the bridegroom and Ishaak Ali the bride are both men.

A human rights activist.group ABVA filed a Public Interest Litigation in theDelhi High Court. The petition challenges the constitutional validity of Sec. 377of IPC and advocates supply of condoms to jail inmates, with a plea to restrain the authorities from segregating or isolating prisoners with homosexual orientations or those suffering from HIV/AIDS[40]. The petition urges that Sec. 377 is obsolete and must be struck down as beingunconstitutional on the grounds that Right for Privacy is part and parcel of theFundamental Rights of life and liberty under Article 21 of the constitution andrecognised by the 1948 International Convention on Human Rights; Sec. 377 is aviolation of Article 14 of the constitution since it discriminates persons on thebasis of their sexual orientation; having been enacted in 1860, Sec. 377 is archaic,absurd and implemented by the British in all its colonies, including India, butnow been repealed in England, the country of origin. The point of argument in this case is more from asexual health perspective and less from the gay right perspective.

In National Legal Services Authority v Union of India[41], the Supreme Court was tasked with deciding whether the right to equality and other fundamental rights required state recognition of hijras and transgenders as a third gender for the purposes of public health, welfare, reservations in education and employment, etc.[42] The Court observed that even though Section 377 was facially gender neutral, it had a disproportionate impact on certain communities. Sec. 377 begins with the words “whoever voluntarily..” which implies that both men and women can be imprisoned under this act.

 

RELIGIOUS STANDING OF SAME SEX MARRIAGES

Hinduism

There is enough Hindu literature available that speaks volumes about the stand of Hinduism on homesexuality, and as an extension on same sex marriages. Homosexuality has an ancient history in India. Ancient texts like Rig-Veda whichdates back around 1500 BC and sculptures and vestiges depict sexual actsbetween women as revelations of a feminine world where sexuality was based on pleasure and fertility. The description of homosexual acts in theKamasutra, sculptures of the temple at Khajuraho, the character of ‘Sikhandi’ in Mahabharata, evidences ofsodomy in the Tantric rituals are some historical evidences of same-sexrelationships. However, these experiences started losing their significance with the advent ofVedic Brahmanism and, later on, of British Colonialism. The Manusmriti provides harsh punishments for females having sexual relations with a girl, proving the existance of such relationsduring the period. However, both sexual systems coexisted, despite fluctuations in relative repression andfreedom, until British Colonialism when the destruction of images of homosexualexpression and sexual expression in general became more systematic and blatant.

Muslim

Islamic Shari’ah law is extracted from both the Qur’an and Muhammad’s Sunnah. Homosexuality under this law, is not only a sin, but a punishable crime against God.In the case of homosexuality, how it is dealt with differs between the four mainline schools of Sunni jurisprudence today, but what they all agree upon is that homosexuality is worthy of a severe penalty.Muhammad himself had stated, “If you find anyone doing as Lot’s people did, kill the one who does it, and the one to whom it is done.” He even went so far as to condemn the “appearance” of homosexuality, when he cursed effeminate men and masculine women and ordered his followers to “Turn them out of your houses.” This ruling on homosexuals was naturally adopted by his later successors. Even by moderate Muslims homosexuality is seen as something that is vile and unacceptable.

Christianity

There has been a great debate going on in the Christian world regarding the position of homosexuality. One line condemns the idea as a whole, whereas the other line says homosexuals should be accepted so that they can find a higher calling in God and change their ways. The split in thought has occured after modern Western nations have started legalising homosexuality. However, traditionally, homosexuality has been condemned by Christianity.

 

ISSUES & CHALLENGES OF SAME SEX MARRIAGES

The issue of homosexual conduct to this fore in recent legal and political debate for three main reasons, which are as follows[43]:

(i) Liberalisation of the law (in the UK, by the Sexual Offences Act, 1967 as amended in 2000 and some other countries by a similar legislation) has brought with it a change in social attitudes, so that the stigma attached to the homosexuality has to a greater extent disappeared.

(ii) Campaigns for lesbian and gay rights especially in the US have taken on an increasingly radical character, arguing for an end to all forms of discrimination against homosexuality, and even for the legalisation of same sex marriages.

(iii) The outbreak of HIV/AIDS which has been spread in the western countries to a great extent by homosexual activity between males, has led to accusations and counter-accusations, often of a bitter kind on Spain, Belgium and the Netherlands, as well as Canada in allowing same sex marriages.

Same sex acts are punishable by death in nine countries around the world.Present legal status of same sex marriage in India Homosexual intercourse was a criminal offence in India until 2009 under Section 377 of the Penal Code. This made it an offence for a person to voluntarily have carnal intercourse against the order of nature. Whilst convictions under this section were rare, with no convictions at all for homosexual intercourse in the twenty years to 2009, Human Rights Watch have said that the law was used to harass, HIV/AIDS prevention activists, as well as sex workers, men who have sex with men, and other LGBT groups. The group documents arrests in Lucknow of four men in 2006 and another four in 2001. The People Union for Civil Liberties has published two reports of the rights violations faced by sexual minorities and, in particular, transsexuals in India.

Apart from the harsh legal scenario, homosexuals face social stigma as well. Same sex marriages are still unimaginable as any instance ofsexual relations between a couple of the same sex draws hatred and disgust. There is an entrenched system of dowry in the Indian culture to protect which the system of same sex marriages are discouraged. If both parties are male, or, if both parties are females, who would pay dowry to whom will be a big question. Moreover, same sex relations are considered to be unnatural or against the course of nature. The Indian society is steeped in tradition and this reflects on the legal system as regards inter-personal relationships. Intimacy of any sort is not approved of unless it is legitimized in the form of marriage where socially approved sexual access takes place.

The social order in our Country is religion based which views procreation as an obligation for the execution of various religious ceremonies.

Additionally our society is very community oriented and individualism is not encouraged in the least, any expression of homosexuality is seen as an attempt to renounce tradition and promote individualism, thereby posing a threat to the order in Indian society. It is opined that if homosexual marriages are legalized it will destroy the concept of a traditional family and the sanctity of marriage will be lost.It must not be forgotten that the Indian society is patriarchal in nature and the fact that certain women and men have different choices, which is not sanctioned by the ‘order’, frightens them in a way

A TIME FOR CHANGE

Gay and lesbian rights activists from various parts of the countries were protesting for their rights and for decriminalizing the homosexual conduct. There is a big debate in our country too- whether it should be legalized or not.

Arguments against Decrimilisation of Homosexuality[44]

This is more of a religious debate than a political one. A large number of people, especially in India are opposing it, as they say, it is unnatural, uncouth and immoral.  Those people who are opposing it their arguments are based on religious and natural law belief. Some people don’t consider them as natural because they do not produce kids. Is it sacred if gay marriage is allowed God created Adam and Eve, we never find statements in Genesis about Adam and Steve. Why break God’s law by allowing gay marriage If nature wanted same-sex people to live together, there would only be one sex rather than different sexes. Our society is based on opposite sex marriage. If gay marriage is OK, then why can’t I marry my cousin, or my sister, or my cat. Don’t I have the same rights as gays or are they now above the rest of us. Don’t forget that the law is specific on this. It was created to keep the fabric of society together. It goes against the laws of the land that have been used for hundreds of years and were based on the basis of the commandments.

 

Arguments in favour ofDecriminalising Homosexuality[45]

(1)  It violates right to liberty guaranteed under Article-21 of the Indian Constitution which covers private consensual sexual relations. The fundamental right to liberty (under Article-21) prohibits the state from interfering with the private personal activities of the individual. The concept of privacy is so broad that no comprehensive and all encompassing definition of the term can be given. In the case National Coalition For Gay AndLesbian Equality V. Ministry of Justice[46], the South African court held that Privacy recognizes that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. Even at the international level, the right to privacy has been recognized in the favour of lesbians and a gay man.

(2)  Criminalization of homosexual conduct is unreasonable and arbitrary. Infringement of, the right to equal protection before law requires the determination of whether there is a rational and objective basis to the classification introduced. There should be a just and reasonable nexus between the classification and the object sought to be achieved by the legislation. Section-377 of IPC, its legislative objective is to criminalize all the sexual activities which are against the order of nature, thus punishing the unnatural sex. Section-377 assumes that natural sexual act is that which is performed for procreation. Hence, it thereby labels all forms of non-procreative sexual act as unnatural. This gives a very narrow view to the distinction between the procreative and non-procreative sexual act. Hence, the legislative intent of creating a public code of sexual morality has no rational nexus with the classification created. Further, the very object of the section is vague, unreasonable, constitutes  discriminationarbitrary and based up on the stereotyped notion that sex is only for procreation. Now if this presumption is accepted is correct then, what justifies the policies of family planning and the use of the contraceptive devices.

(3) Section-377 discriminates on the basis of sexual orientation which is forbidden under Article-15 of the Constitution. Article-15 prohibits discrimination on several grounds, which includes Sex. By prohibiting discrimination on the basis of sex, article-15 establishes that there is no standard behavioral pattern attached to the gender. The prohibition on non-procreative sexual acts imposed by section-377 prescribes traditional sexual relations upon men and women. In so doing the provision discriminates against the homosexuals on the basis of the constitutes discrimination on the basis of sexual orientation.

(4). Section-377 violates the enjoyment of civil laws and gay men and lesbians and leads to other adverse effects: Section-292 of IPC punishes Obscenity; the current definition of obscenity can lead it to incriminate the gay and lesbian writings. As male homosexuality is a criminal offence, the presumption is that it is something depraved and can corrupt the minds and bodies of the persons. In the prevailing atmosphere any writing about the lesbians and the gay men can be criminalized, as homosexuality is treated as something immoral or depraved.

 

CONCLUSION

The universal law of Human Rights states that social norms, tradition, custom or culture cannot be used to curb a person from asserting his fundamental and constitutional rights. If we were to accept the justification, given tous by cultural views, public policy and societal values, which are used to restrict a person’s right then there would have been no progressive legislation enacted in our Country. Sati, dowry, child marriage and infanticides are practices derived from cultural belief, but the Government still took steps to prevent them.On the basis of the whole discussion on the aspect of same sex marriage that is should it be legalized or not. This is more of a religious debate then a political one. Homosexuality is not an offence, it is just a way of pursuit of happiness, a way to achieve sexual happiness or desire. There is absolutely no reason, apart from blind prejudice, which prevents two gay people going through a civil ceremony which will give them the rights and securities which heterosexual couples enjoy. . Aren’t we living in an age which respects the individual’s right to choose Isn’t Indiasupposed to be the land of the free In our society people have branded homosexuals as queer. Yet homosexuality is not new nor is it against the Indian culture, it has always existed and with much lesser prosecution, that under Section-377 of the IPC, which is based on British Offences against the Persons Act.

What should be the right approach to deal with same sex marriages, the issues are quite vast and complex. However, the desirability and feasibility of such an approach remain to be ascertained. In any event there is a growing conviction that our present method of criminalizing the same sex sexual activity neither helps the homosexuals nor protects the society in general. We thus need to legitimate same sex marriages in order to move forward in the direction of human rights.

 

BIBLIOGRAPHY

• Puja Mondal, “Essay on Marriage: Meaning, Functions and Forms,” available at http://www.yourarticlelibrary.com/marriage/essay-on-marriage-meaning-functions-and-forms/8592 (last accessed on August 19, 2015 at 8:37 P.M.)

• SherifGirgis, Robert P. George, et al, “What Is Marriage?,” Vol. 34, Harvard Journal of Law & Public Policy, 246
• AnuradhaParasar, “Homosexuality In India- The Invisible Conflict,” available at http://www.delhihighcourt.nic.in/library/articles/legal%20education/Homosexuality%20in%20India%20-%20The%20invisible%20conflict.pdf (last accessed at August 20, 2015)
• VidhanMaheshwari, “Same Sex Marriage: Is It The Time For Legal Recognition,” available at http://www.legalserviceindia.com/articles/semar.htm (last accessed on August 20, 2015 at 2:32 A.M.)
• The Hindu Archives, available at http://www.thehindu.com/(last accessed at 01.10.2015 at 8:43p.m.)

[1]Puja Mondal, “Essay on Marriage: Meaning, Functions and Forms,” available at http://www.yourarticlelibrary.com/marriage/essay-on-marriage-meaning-functions-and-forms/8592 (last accessed on August 19, 2015 at 8:37 P.M.)

[2]Ibid

[3]Ibid

[4]Ibid

[5]Ibid

[6]Ibid

[7]Ibid

[8]Ibid

[9]SherifGirgis, Robert P. George, et al, “What Is Marriage?,” Vol. 34, Harvard Journal of Law & Public Policy, 246

[10]Ibid

[11]Ibid

[12] Prof.AnisaShaikh, “Right To Marry Under Right To Life: Panoramic View,” available at http://www.legalindia.com/right-to-marry-under-right-to-life-panoramic-view (last modified at January 12, 2012)

 

[13]Supra note 12

[14]Ibid

[15]Ibid

[16] AIR 1999 SC 495

[17]AnuragGupta,”Problems attached to Inter Caste Marriage,” available at http://blogs.matrimonialsindia.com/2010/04/14/problems-attached-to-inter-caste-marriage (last accessed at 1.10.15)

[18]Ibid

[19]Ibid

[20]Ibid

[21]Lata Singh v. State of Uttar Pradesh AIR 2006 SC 2522

[22]RukminiS.,”Just 5% of Indian marriages are inter-caste: survey,”TheHindu, November 13, 2014

[23] “LGBT Rights Around The World #LGBT,” available at http://infographicworld.com/lgbt-rights-around-world/ (last accessed at 1.10.15)

[24] 576 U.S. 2015

[25] 291 Minn. 310, 191 N.W.2d 185 (1971)

[26] “Same-sex marriage in the United States,” available at https://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States(last modified on 3 October 2015, at 01:53)

[27] “Same-sex marriage in the United Kingdom,” available at https://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_Kingdom( last modified on 20 September 2015, at 21:09)

 

[28]Ibid

[29]Ibid

[30]Ibid

[31] “Same-sex marriage in South Africa,” available at https://en.wikipedia.org/wiki/Same-sex_marriage_in_South_Africa( last modified on 16 July 2015, at 04:13a.m.)

[32] [2005] ZACC 19

[33]Supra note 19

[34]Ibid

[35]Ibid

[36] “Recognition of same-sex unions in Australia,” available at |https://en.wikipedia.org/wiki/Recognition_of_same-sex_unions_in_Australia(last modified on 3 October 2015, at 04:24)

[37] Lawrence v. Texas, 539 U.S. 558 (2003)

 

[38]AnuradhaParasar, “Homosexuality In India- The Invisible Conflict,” available at http://www.delhihighcourt.nic.in/library/articles/legal%20education/Homosexuality%20in%20India%20-%20The%20invisible%20conflict.pdf (last accessed at August 20, 2015)

 

[39]FazalRab Vs State of Bihar AIR 1983 SC 323

[40]Supra note (7)

[41] Writ Petition (Civil) No. 400 of 2012 (‘NALSA’)

[42]ChintanChandrachud,”Limiting the impact of Section 377,”The Hindu,December 12, 2014

[43]VidhanMaheshwari, “Same Sex Marriage: Is It The Time For Legal Recognition,” available at http://www.legalserviceindia.com/articles/semar.htm (last accessed on August 20, 2015 at 2:32 A.M.)

 

[44]Supra note 43

[45]Supra note 44

[46] (1998) (6) BCLR 726