This article is written by Pranav Singh.
Two decades ago in May 1994 when ABVA (AIDS bhedbhav virodhi Andolan) filed a writ in Delhi High Court, for section 377 to be declared unconstitutional. No one thought that in a country like India where people still are not able to accept inter-caste or inter-religion marriages, one-day Homosexuality will be made legal. On 6 September 2018, modern India and especially the LGBT community won the colossal battle against the orthodox society clenched in chains of social culture and societal norms when a five-judge bench of the Supreme Court consisting of Rohinton Nariman, D.Y Chandrachud, Indu Malhotra, Ajay Khanwilkar and Dipak Misra ordered to decriminalize Section 377 of the Indian Penal Code.
The landmark judgment gave the LGBT Community equal status and recognition for which they fought for decades. Many considered it as a big win but this was not the end, same-sex marriage is still prohibited. LGBTQ still cannot get the recognition of law as well as the society for being a worthy spouse. The project works towards the legalization of same-sex marriage so that the LGBT people can avail of all the legal rights available to a normal couple. In India, our constitution and all the personal laws give every person a person irrespective of gender ‘Right to Marriage’. Currently, around the globe, there are 30 countries that allow same-sex marriages and in India, we are still fighting for it. Only passing the judgment that legalizes same-sex marriage wouldn’t be enough. As in a country like India, marriages are validated both by legal as well as social recognition. It will take time but surely one day both our society and the legal system will accept same-sex marriages.
The first instance of same-sex marriage was reported by the media in 1987 when two policewomen from Madhya Pradesh tied knots with each other by Hindu rites. Since then the media has reported numerous same-sex marriages taking place in the country. Few succeeded in their cause while some were barred by law and others were separated by society. But now with the changing times, people have become more aware and courageous enough to accept their homosexual relations openly. Recently famous Indian athlete, Dutee Chand publicly accepted her same-sex relationship and asked other members of the LGBTQ community to be more courageous. After the Navtej Singh Johar v. Union of India case Arundhati Katju and Menaka Guruswamy, the leading lawyers came up with ‘The Marriage Project’. This project aims to legalize of same-sex marriages in India.
Current situation vis a vis Indian law regime
Being, in a country like India marriages are considered a very strong legal and social institution. In our culture marriage comes with legal rights and social responsibilities. Marriage is such an important part of a person’s life our constitution has given full freedom to every one of life partner of their own choice under the ‘Right to Marry’ which is considered under Article 21 ‘Right of Life’. Shakti Vahini V. Union of India, in this case, the Supreme Court held that an adult has the fundamental right to marry any person of his choice. Even in the Hindu Marriage Act, 1955 it is nowhere mentioned that the marriage should only be held between a man and a woman only. In June 2019 a survey was held by OkCupid, a dating app in which nearly 69 percent of people were in favor of legalizing same-sex marriages.
The question here is, if the legalization of same-sex marriage is not violating any personal law and the common masses also want it what is the harm in allowing the union of two people of same-sex? Are we still following the parameters set by the orthodox society? Things have evolved and the legal system has also changed with time, then why are we not giving basic rights to a sexual minority?
Recently on September 8, 2020, four representatives of the LGBTQ moved to Delhi HC by filling a PIL (Public Interest Litigation) saying that they should be allowed to get married under The Hindu Marriage Act, 1955. The petitioners argued that due to such restrictions they are being deprived of their Constitutional Rights. A similar petition has been filled by Nikesh Pushkaran and Sonu MS in Kerala high court; they have challenged the Special Marriage Act and are demanding the rights given to a normal couple. The Madras high court recently held that a transsexual person can also be considered as a bride under the Hindu Marriage Act, 1955. Court gave references to incidents from Ramayana and Mahabharata and gave the order that the marriage of the petitioners should be registered. Even after all this, LGBT couples do not have basic rights of marriage, adoption, and inheritance.
Obergefell v. Hodges, in this case, the Supreme Court of the United States held that same-sex marriage is a result of the right to marry which is also a fundamental right. Article 15 of our constitution says that the state shall not discriminate on any grounds of religion, race, caste, sex, place of birth against any citizen. This tells that such barring of same-sex marriages is a clear violation of our basic fundamental rights.
Same-sex marriage : Global status
As the LGBTQ people have started questioning about their rights, governments have also started thinking about legalizing same-sex marriages. Till now there are a total of 30 countries that have lifted the ban on same-sex marriages. Most of them are developed nations mainly from Europe and America. In 2001, the Netherlands became the first country to allow same-sex marriages. In 2010 gay people were allowed in the US military. El Di Rupo, of Belgium, became the first gay Prime Minister. In May 2020 Costa Rica gave recognition to same-sex marriages. In the coming time, more countries will recognize same-sex marriages and the LGBTQ community will get the equal status they have been fighting for years.
The main issue with the legalization of same-sex marriages is that people start opposing it on the name of various religious and cultural aspects. While arguing in Delhi HC solicitor-general Tushar Mehta said that same-sex marriages are against “our law, legal system, society, and values”. It disappointing that a young democracy is so stiff that it took nearly 24 years (the petition was filed in 1994) just to decriminalize homosexuality and allow to people to freely love each other and now it has become so rigid because of values and society that a group of sexual minorities are not been given the liberty to marry someone of their own choice. Keeping aside the religious and political angle the legal system should allow the LGBTQ community to get their marriage registered under the Special Marriage Act, 1954.
The point here is that the queer community is not limited only to any specific religion or group therefore, no one will hinder the recognition of marriage on the name of values and culture if the marriage is registered under the Special Marriage Act. Mere, changing of law will not give recognition to marriage acceptance of society is also necessary. The only way through this can be done is that people should be made aware and should be educated to the level where they can understand that every person has the right to choose their life partner. Now, the time has that we equal status, recognition, and rights for which the LGBTQ community has been fighting.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: