This article is written by Amrita Sony.

Introduction

Whenever we talk about human as well as civil rights, many of the developed countries have embraced same-sex marriage. For a long time third genders have been suffering gender-based discrimination. They have persistently fought for legal recognition of their rights. Protection of homosexual relationships legally on the equal footing like heterosexuals has now become a desideratum. The right to marriage is considered a human right. However, there exists no law nor any legislation which legally enforces such right of transgenders. They were given a hope when Supreme Court delivered the NALSA judgement. It was the first attempt to legally recognize their gender and the fundamental rights which conferred to all irrespective of an individual’s sex.

Marriage is considered as one of the important elements of a person’s identity in politico-legal and socio-economic sense. It is an institution which legally codified under various personal laws for recognizing the relationship between two parties. It is of great public importance as it gathers much significance in respect of rights and duties like property, inheritance and those kinds of related rights. These rights stem from a marriage. In today’s world the institution of marriage is not only a civil right but it has gained international acceptance. Right to marry is obligatory on the state. In India, the right to marry is now recognized as a constitutional right, which grants the freedom to an individual to choose spouse of their own choice.

Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors held, Article 21 confers freedom of life and liberty, which doesn’t merely amount to physical existence but a qualitative and meaningful life with dignity. Inherent human dignity is a precondition of warranting the rights under Article 21 of the constitution. Marriage right is crucial for retaining individual dignity and also for enjoying meaningful human existence, therefore courts have interpreted marriage to be an important right under Article 21 of the Constitution.

Although the right to marry according to one’s will have been recognized as a fundamental right the current scenario doesn’t allows homosexuals to exercise their rights. LGBT community faces problems for exercising even their most basic rights. The legislators are not making any efforts to guarantee them their fundamental right of marriage. Most of the developed countries have recognized same sex marriages in their legislation in order to ensure the legal and social protection on same footing as heterosexual couples. Various advantages which are available to heterosexual couples like maintenance, succession, pension rights are denied to homosexual couples. 

After the decision in Suresh Kumar Koushal v. Naz Foundation (hereafter referred as Koushal) which upheld constitutional validity of section 377 of Indian Penal Code criminalizing carnal intercourse against nature’s order, most of the argument have focused around the efficient ways to overturn the decision of the court. This paper not highlights the current social scenario and position of homosexuals but also argues on the point of significance of legal recognition of homosexual relationships. It is an undisputable fact that discrimination on the basis of sex is violative of our fundamental rights enshrined under Article 15.

Sex includes sexual orientation within it and discrimination based on an individual’s sexual orientation is objectionable under criminal as well as civil laws. The current legislations on personal laws only recognizes heterosexual marriages, which undoubtedly denies homosexual couples of the legal and social recognition as well as the benefits which is conferred by these legislations to married people.

The article concludes that amending personal laws to legalize same sex marriages may not be a feasible option as it can hurt religious feeling of few sections and subsequently lead to unfavorable outcomes. Therefore, the viable alternative available to recognize the homosexual’s rights is to make an amendment in the Special Marriage Act. To do so, one may argue that denial of marriages rights to homosexuals is violation of their basic right and unfair discrimination against LGBT (lesbian, gay, bisexual, transgender) community.

The struggle of LGBT community for recognition their rights and against social discrimination is long and toilsome. The preliminary objective to decriminalize consensual Act of sex by persons belonging to same class of sex is achieved by most countries by legislations or by overturning such laws through judiciary. However in West Asia and Africa around seventy-six countries still holds such conservative laws. India joined them when Supreme Court upheld the validity of section 377 of the India Penal Code in Koushal.

It overturned the developing decision in Naz Foundation v. Govt. of NCT of Delhi (hereafter referred as Naz Foundation) by the High Court of Delhi, which decriminalized consensual sex between adults. The paper focuses on the point that it only decriminalizing same sex acts is not sufficient for proper recognition and freedom of homosexuals the relevant legal rights should also be granted to them. It also suggests various alternatives which may be adopted for the recognition.

As it is not just a question pertaining to legal aspects but it is a matter of basic rights which affects personal lives of many individuals. In a country like India, along with modernization revivalist and conservative ideas are also at growth. So, opposition because of customs, practices, religion, tradition acts as an obstruction for liberal legislation. The petition filed by Naz Foundation was initially dismissed by the High Court of Delhi saying that there existed no cause of action and it was merely an academic issue. Subsequently it was challenged in a special leave petition and then the Supreme Court remanded the special leave petition for a fresh decision. Therefore, considering Koushal it shouldn’t be interpreted that a progressive approach cannot be adopted.

Homosexuality and the Indian perspective

Homosexuality can be defined as an attraction be it romantic or sexual between two individual belonging to the same class of sex. It is nothing but enduring disposition to experience sexual affectionate from people of same sex. To answer the question as to why homosexuality exists in human scientists have taken on several research. Few biological theories suggest the cause of sexual orientation of an individual is favoured by either genetic factors or the early uterine environment or both in combinations. Research shows that it is a normal and natural variation in which isn’t controlled by an individual. However, even in 21st century some section of society believes it to be dysfunctional.

In India, it is seen as a taboo since ages. Most personal laws describe marriage as sacrament and union of two souls between individuals belonging to different sex. Same sex relationships are considered grossly immoral and violative of custom and religious beliefs. As marriage is a personal area and is governed by one’s religious faith gay, lesbian marriages are considered unholy. People in India often believe that it is a part of western culture and it is a bad influence of foreign countries. However, it is not western practise, because our ancient scriptures and literature reflect somewhat a similar concept. The Rigveda, one of the sacred texts in Hinduism mentions, ‘Vikriti Evam Prakriti’ which means what seems to be unnatural is also natural.

Under Hindu Marriage Act

Hindu Marriage Act governs the marriage and related aspects like divorce etc, of any two individuals belonging to the Hindu religion. It is applicable to any other person who is by religion Jain, Buddhist or Sikh within the territory of India. According to the Act marriage in Hindu religion is considered to have a divine origin and is a sacred union of two individuals for performing religious duties. In the present environment the most convenient course of action would be to recognize marriages among same-sex individuals under the personal laws.

The Hindu Marriage Act very specifically states that at the time of marriage the bridegroom must be of twenty-one years of age bride of eighteen years of age. A similar provision is made in the Christian Marriage Act using the term man and woman. Almost every Indian personal law considers marriage as union of heterosexuals. However, same sex marriages are not expressly prohibited Hindu Marriage Act. In order to recognize them under the personal laws few approaches that can be possibly made are as follows: 

1. Existing laws can be interpreted so as to allow same sex marriages. 
2. LGBT (lesbian, gay, bisexual, and transgender) can be interpreted as a different community, the customs of which permits same sex marriages. 
3. Interpretating the Act in such a manner so as to allow same sex marriage, if not then it would be unconstitutional.
4. And lastly, make relevant amendments in the Act itself. 

Other than using the term bridegroom and bride the Act is neutral in terms of gender. Same sex marriage can be permissible provided one of them (in homosexual couple) is identified as groom and another as bride. At one instance the same approach was adopted by a lesbian couple, one was presented as groom and another was made to be identified as bride.

Although it is opposed to the rules of interpretation of statute and is also not in line with general understanding of the terms used (bride and groom), the interpretation attempts to mingle same sex marriage with other traditional forms of marriage. The second approach could be to recognise LGBT community as a separate community, one which have its own customs and practices allowing same sex marriage. A similar approach was adopted by Anti-Brahmin and Arya Samaj. They started self-respect moment and formed their own ritual and practices for marriage. It was legally recognized when section 7A was inserted in the Act by an amendment in 1967.

The third approach can be interpretating the Act in such a manner so as to allow same sex marriage. If not, then the Act may be held unconstitutional on the ground it discriminates on basis of sex and denies them of their basic right. This argument was supported by Delhi High Court in the case of Naz Foundation.

However, courts may not be flexible to favor such views after Koushal. In the case of State of Bombay v. Narasu Appa Mali Bombay High Court held that personal laws cannot be tested on yardstick of fundamental rights. The last approach is to make desired amendments in the respective personal laws. It is the most workable solutions among all the above. However, it may prove to be most difficult and controversial at the same time because of disapproving behavior towards the LGBT community by a few sections of the society. So, if an amendment is not possible can same sex marriages happen within the existing legislation?

Interpreting few terms of Hindu Marriage Act 

The Hindu Marriage Act lays down certain conditions for a valid marriage, they are:

• Union of Spirits- The Act doesn’t use specific terms such as male/female or man/woman. So, homosexuals can be very well incorporated into it. 
• Between any two Hindus- The Act mentions, “A Marriage may be solemnized between any two Hindus…”
•  No Express Prohibition- The Act doesn’t expressly say marriage can only be solemnized between two individuals of opposite gender. The Act under section 2 lists down who all are entitled to marry under it. 
•  Customary rites and Ceremonies- Section 7 says marriage can be solemnized following customary rituals of either party. The marriage is invalidated if rites are not performed properly. These ceremonies need to be proved for a legitimate marriage under the Act.
• Bride and bridegroom- Only section 5(ii) and section 7(2) uses the term bride and bridegroom. Rest all other section mentions neutral terms like ‘person’ or ‘party’. The term bride and bridegroom may be interpretated as roles which parties may prefer in a relationship. Hence, the Act is neutral other than using bride and bridegroom in these two sections. Therefore, we can reasonably contend that same sex can solemnize their marriage if one plays the role of bride and another plays bridegroom.

Under Special Marriage Act

The Special Marriage Act, 1954 allows for a special type of marriage between parties irrespective of their faith and religion who don’t wish to be bound by their personal laws. An alternative which ought not to incite religious hatred is make amendment in the Special Marriage Act to facilitate same-sex marriages. Marriages under this Act doesn’t requires religious rites and practices to be performed for a valid marriage unlike marriages under Hindu Marriage Act.

However, the current form of the Act is only applicable to heterosexual couple as it describes the age criteria by using words such as “male” and “female”. To incorporate homosexual marriages under the Act an amendment to section 4 (c) is required or it may add a specific provision to expressly allow the same. Meanwhile, amendment is the best option, it may prove difficult because of existing BJP govt. While the Congress and the CPI(M) both included de-criminalization in their manifestos for the Lok Sabha elections, the BJP was clear in its support of the judgment – a party leader commenting that homosexuality is an unnatural Act that cannot be supported.

At present, many countries have made laws to permit same sex marriages. The Netherlands was the first to legalize same sex marriage in 2001. However, there were several enactments which were anti-same sex also. In South Africa, the constitutional court held that same sex marriages are violation of its Constitution. As section 9(3) of the its constitution states “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including pregnancy, gender, marital status, sex, ethnic or social origin, color, race, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

The decision of Naz Foundation stressed on Article 15 of the Constitution which prohibits discrimination on the ground of caste, race, sex, religion and place of birth. The court observed that the term “sex” in Article 15 included sexual orientation within it. Several foreign judgments were cited in this case for supporting the propositions. It will be discriminating and violative of Article 15 against homosexual couples if the legislation and personal laws prohibited them based on their sexual orientation.

Hence, it’s clear that if Special Marriage Act permitted same sex marriages, an argument could have been made. However, the Suresh Kumar Koushal v. Naz Foundation’s decision may be used to argue that Special Marriage Act is constitutional as it was enacted after constitution came into force. After the Supreme Court decriminalized section 377 of Indian Penal Code, there have been significant of instances where people of homosexual committee are coming out to stand and demand their rights status. In the case of Shakti Vahini v. Union of India and others the court held that right to choose a partner is a fundamental right.

Hence, there is not even a single reason as to why same sex marriages shouldn’t be allowed other than lack of capacity to understand the needs of same-sex couples and blind prejudice There is significant miscarriage on the government’s part as it is unbale to bring desired amendments in the existing laws nor it has enacted a separate legislation to address these issues.

The NALSA judgment: a bright side

The decision of National Legal Services Authority v. Union of India & Ors. (hereafter referred as NALSA) must be praised for criticizing the gender biased discrimination and also for bringing a ray of hope and the promise which was left outside the legal framework. The division bench comprising of Justice K.S. Panicker Radhakrishnan and Justice Arjan Kumar Sikri gave legal identity to all the individuals whose gender doesn’t match with the accepted standards of society.

The judgment proved to be a revolutionary move having great impact on present laws related to adoption, marriage, inheritance etc. which will now be moved away from general system of male and female for extending these legal and social rights to third genders. This revolutionary judgment was delivered just a few months after Suresh Kumar Koushal and another v. Naz Foundation which gave a regressive decision as it upheld the validity of section 377 of Indian Penal Code.

Although, the court accepted the discriminating nature of section 377, it also made it clear that it leaves judgment of Koushal uninterrupted and only focuses on the recognition of third genders. The court observed “that fundamental rights are available to third gender community in the same way as it is available to males and females. As of now the hijras community are perceived as third gender, trans-persons will be having to choose between male or female or continue to be in third gender category. They will be given the benefits offered by the governmental policies, under minorities section as they qualify to be socially backward and disadvantaged class. Majorly these mandates were made by the court directing Centre and State Governments: 

• Legal Recognition of Third Gender: Fundamental rights were made available to third genders like it is available to any other citizen of the country. Not recognizing them in statues (criminal or civil) like those relating to divorce, adoption, marriage is clear discrimination against the community. 
•  Social and Economic Rights: Both central and state govts. will be giving the community several social welfare scheme. The community will be treated as “socially and economically backward classes” (SEBC) so that they benefit from reservations. 
• Sanitation and Public Health: Both the govts. are directed to provide proper medical treatment to the community and they are to be provided with separate toilets in public places. The govts. are also directed to provide HIV/ Sero- surveillance measures to them.
• Public Awareness: Both the govts. are directed to take steps in order to create awareness for proper incorporation of the community in the society.

Conclusion

The interpretation of marriage varies depending on different cultures. Majorly it is an institution which seeks to acknowledge personal connections like family and sexual relationship of an individual. It is clearly visible that homosexuals face discrimination and intolerance, and exclusion from the normal society. The reasons maybe personal or social. At present 29 out of 195 countries have legalized samesex marriages.

However, still in India it seen as taboo as they are called unholy and unnatural. The anti-discriminatory judgment in Naz Foundation and NALSA must be built further for overruling Koushal and achieving the recognition of same-sex marriages legally as well as socially. The most suitable method would be incorporating homosexual marriages under personal laws. However, it is indeed a difficult task to amend personal laws to recognize the legality of same-sex relationships because any intervention in the personal laws may be seen as intervention in religious freedom. Then another alternative is to make desired amendments under Special Marriage Act on the grounds of it being discriminatory to homosexuals by legally not recognizing the “right to marriage” of the community hence, constitutionally invalid.

If the judgment of Koushal is overruled, then there is great possibility of principle laid down in Naz Foundation case which prohibits discrimination based on sexual orientation will affirm prohibition if discrimination under Article 15. Through various judgments like Navtej Singh Johar v. Union of India, Naz Foundation and NALSA judiciary have taken initial but significant steps for removing the stigma which is attached to LGBT community. and now it’s the turn of citizens of the country to address and enforce the principles laid down in these judgments.

Throwing money at hijra community and putting them down every time is an insult to humanity. These kinds of actions and treatment will only make the struggle of LGBT community tougher. Therefore, it is extremely essential to make laws in black and white letters for them and at the same time also enforce them strictly for properly recognizing the human dignity of the concerned community.

References

• BOOKS

1. 1. Ruth Vanita, Democratising Marriage: Consent, Custom and the Law, in Law Like Love, 351, (Arvind Narrain & Alok Gupta eds., 2011).
   2. Sunil Khilnani, The Idea of India 180 (2004).

• CASES

1. 1. Bhaurao Shankar Lokhande & Anr vs State of Maharashtra & Anr, 1965 AIR 1564. 
   2. Margaret Palai v. Savitri Palai, AIR 2010 Ori 45. 
   3. Minister of Home Affairs v. Fourie, (2006) 1 SA 524 (CC). 
   4. National Legal Services Authority v. Union of India & Ors, (2014) 5 SCC 438. 
   5. Navtej Singh Johar v. Union of India, AIR 2018 SC 4321. 
   6. Naz Foundation v. Govt. of NCT of Delhi, (2009) 160 DLT 277. 
   7. Olga Tellis and Ors. v. Bombay Municipal Corporation & Ors, (1985) 3 SCC 545.
   8. Shakti Vahini v. Union of India and others, (2018) 7 SCC 192.
   9. State of Bombay v. Narasu Appa Mali, (1951) 53 Bom LR 779.
   10. Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1. 
   11. Swarajya Lakshmi v. G.G. Padma Rao, AIR 1974 SC 165. 
   12. Vishnu Prakash v. Sheela Devi, 2001 4 SCC 729.

• CONSTITUTION

1. Constitution of the Republic of South Africa, 1996. 
2. The Indian Constitution, 1950.

• LEGISLATIONS & CODES

1. Christian Marriage Act, 1872. 
2. Hindu Marriage (Tamil Nadu Amendment) Act, 1967.
3. Hindu Marriage Act, 1955. 
4. Indian Penal Code, 1860.
5. The Special Marriage Act, 1954.

• ONLINE SOURCES

1. SC verdict on Sec 377: Why is BJP on the wrong side of history?, First Post (December 15, 2013), http://www.firstpost.com/india/sc-verdict-on-sec-377-why-is-bjp-on-the-wrong-side-ofhistory-1286931.html 
2. UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights on Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, (November 17,2011), https://www.refworld.org/docid/4ef092022.html

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