Same-sex marriage still seems like a distant dream for the LGBTQ+ community in India. The article examines the issue and traces its legal history while making a compelling argument in its favour.
“Our laws, our legal system, our society and our values do not recognise marriage, which is a sacrament, between same-sex couples”. – Solicitor General Tushar Mehta
This jaw-dropping statement by the Solicitor General of India, Tushar Mehta on 14th September during a hearing of a PIL on legalizing gay marriages in India, raised some serious questions on the acceptance of same-sex marriage by Indian society. Whether a law to facilitate the fundamental right of dignity and marriage to a community historically ostracized on the basis of myths, be framed and demanded only when preceded by favourable changes and acceptance in society is a question which demands clarification.
This argument presented by the Solicitor General of India at a time when the perspective of society regarding marriage is changing seems ambiguous and is disappointing. The traditional perspective of marriage as the socially and ritually recognized union of a male and a female for ‘procreation’ and ‘property rights’ is losing ground to the revisionist view of marriage as the union of two individuals be it of the same-sex who care for each other and also agree to share burden 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.
Growing Acceptance of Same-Sex Marriage around the World
Many countries have started accepting same-sex relationships gradually, with Denmark being the foremost to recognize same-sex partnerships in 1989. Subsequently, legislations were passed in many European countries namely Norway ( 1993 ), Sweden ( 1995 ), Iceland ( 1996 ), the Netherlands ( 1998 ), the United Kingdom ( 2005 ), Ireland ( 2011 ) categorizing same-sex marriage as a civil union, domestic partnership or registered partnership.
The legalization of same-sex marriage went outside the realm of Europe in 2005 when Canada passed legislation legalizing it. In the United States, although the question of same-sex marriage has agitated politics since a long time, the apex court in Obergefell v. Hodges pronounced a landmark judgement legalizing it in all 50 states of the country. Justice Anthony M. Kennedy who delivered the majority opinion held:
“Society misunderstands these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfilment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” Harb, Ali. “Arab Americans Divided over Gay Marriage.”
With 29 countries legally recognizing same-sex marriage, it wouldn’t be wrong to say that the gale wind of equal rights for the LGBTQ+ community is blowing stronger than ever. With the growing acceptance in democratic nations, India’s stance on same-sex marriage has created serious questions about the provision of Human Rights to LGBTQ+ citizens in the largest democracy of the world.
The Legal Battle for LGBTQ+ Rights
The legal battle of LGBTQ+ community in the modern era can be traced back to 2009 NAZ Foundation v. Govt. of NCT of Delhi case. In this case, the hon’ble high court of Delhi held Section 377 and other legal prohibitions against private, consensual, adult, non-commercial same-sex conduct as violative of fundamental rights. This judgement declared Sec 377, which prohibits any form of carnal intercourse against the order of nature, as unconstitutional.
This judgement was overruled by the apex country in 2013 by stating it to be an issue concerning only a minuscule fraction of the country’s population. First major legal recognition to LQBTQ+ community came after National Legal Services Authority v. Union of India (2014). In this case, the apex court declared transgender as “third gender” and that Fundamental Rights given in the constitution are equally applicable to them.
The declaration of right to privacy and the right to choose one’s life partner as fundamental rights in Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India (2017) and Shakti Vahini v. Union of India and Ors (2018) respectively, formed the groundwork for the decriminalisation of Section 377 by the five-judge constitution bench which overruled its judgement of 2012, in the case of Navtej Singh Johar v. Union of India (2018).
The court in this case also held that any discrimination on the basis of one’s sexual orientation would entail a violation of the fundamental right of freedom of expression. Justice Dhananjaya Y. Chandrachud opined that “It is difficult to right a wrong by history. But we can set the course for the future. This case involves much more than decriminalizing homosexuality. It is about people wanting to live with dignity.”
But it is pertinent to note that the battle for equal rights to the LGBTQ+ community continues. The decision on legal recognition of same-sex marriage is still pending in Delhi High Court under a petition filed by Abhijit Iyer Mitra and in Kerala High Court under a petition filed by Nikesh Usha Pushkaran and Sonu MS.
Why same-sex marriage demands recognition
Though no statute book categorizes same-sex marriage as a penal offence in India, there are certain legal implications which come into play. All statutory laws in India associated with solemnization and recognition of marriage relating to Hindu, Muslim, Christian or Parsi only recognize marriage between heterosexuals.
The apex court in its landmark judgement decriminalized homosexuality opening a wide range of possibilities for the Queer community. But considering the family-oriented nature of Indian society, recognizing same-sex marriage would count as a fruitful step in integrating queer rights as marriage brings with itself a bundle of rights such as the succession rights, the maintenance rights, the pension rights, etc.
Suresh Ramdas, the winner of Mr Gay India 2019 also reckoned the comforts of recognizing same-sex marriage. He said:
“Once it becomes law, then your insurance, bank account, loan account — or whatever it is that the couple wants to do jointly — becomes possible. It will also push for laws that will deal with discrimination and harassment in a queer marriage, so the benefits of this are significant.”
Legal and social recognition of same-sex marriage will make the legal benefits like maintenance, succession and pension rights available for same-sex couple which they are presently denied. Economic benefits under Employment Provident Fund Scheme, 1952 and Workmen’s Compensation Act, 1932 are provided to only married couples legally recognised by law. Central Adoption Resource Authority’s new guidelines have made it increasingly difficult for unmarried couples (not married or not legally recognised as married) and single people to adopt. Above all what homosexuals are trying to achieve from this demand is acceptance in society without discrimination and a choice to have a legally recognised union of two homosexual people who want to spend the rest of their lives together.
Time for Change: Arguments in Favour of Same-Sex Marriage
The most powerful argument in favour of same-sex marriage comes from Art 14 of the Indian constitution, which provides equality before the law and equal protection of laws within the territory of India. This means that the LGBTQ+ community can’t be excluded from the marriage laws of the country. Not including homosexual couples under marriage laws is in clear violation of Art.15 of the constitution, which provides that there shall be no discrimination on the grounds of sexual orientation.
Art 21 and 19 of the constitution provide the fundamental right to life and freedom which includes the right to marry and the right to choose one’s life partner. All LGBTQ+ members by virtue of being citizens of the nation and under the Art 14, have the right to enjoy every benefit under all statutes equally unless the contrary is provided by the given statute. Since both Section 5 of the Hindu Marriage Act, 1955 and Section 4 of the Special Marriage Act, 1954 provide a gender-neutral definition of marriage and nothing in these acts prohibits homosexual marriage; therefore same-sex couples have an equal right of a registered marriage as anyone else.
The traditionalist’s argument that marriage of homosexuals shouldn’t be recognized as marriage because it doesn’t have a possibility of procreation should be considered no marriage seems ridiculous as going by this argument couples over 50 shouldn’t marry or marriage of couple incompetent to reproduce shouldn’t be declared legit.
Social norms, customs, traditions or culture cannot be used as a mechanism to restrain a person from claiming his fundamental and constitutional rights. If these norms were to restrict a person’s right, the legislation of a country would have been static and un-progressive. The Government in the past has taken steps to outlaw long-running customs such as the Sati System, dowry or child marriage. It’s time to flee from the manacles of tradition and adopt progressive laws like the other common law nations. It’s time for yet another legislation bestowing all legal rights to homosexuals and saving them from any kind of injustice.
“Law and society are intrinsically connected and oppressive social values often find expression in legal structures. The law influences society as well but societal values are slow to adapt to leads shown by the law” – Justice Dhananjaya Y. Chandrachud
Author(s): Zevesh Modi & Mayank Grewal
Students, National University of Study and Research in Law, Ranchi
 772 F. 3d 388
 The Arab American News, vol. 31, no. 1534, Arab American News, 4 July 2015, p. 8.
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 Article 15 in The Constitution Of India 1949