INTRODUCING “SAME SEX MARRIAGE” IN INDIAN LAWS
Author: Shreya Shukla, B.A.,LL.B.(Hons.) from Jamia Millia Islamia
In the light of the judgment that recently decriminalized the long-debated and stigmatized Section 377, Indian Penal Code stating the sexual activities between consenting same sexes as a criminal act and being against the ‘order of nature’, the paper focuses on introducing a new tangent of socially validating the cohabitation and marriage of the two consenting adults irrespective of their gender. While through the Navtej Singh Johar v Union of India, the much-awaited step towards decriminalizing the existing ground of disparity leading to stigmatizing and discriminating the same-sex relationships has been done away with and is not objectionable under any civil or criminal law but considering the core and the beliefs of society, Marriage as an institution holds a very important place and the personal laws, as well as the Special Marriage Act (hereinafter referred as SMA), recognizes only heterosexual marriages in India which deprives the same-sex couples of the social and legal recognition that is enjoyed by married persons.
The paper analyses the need to institute the new provision and recognition of same-sex marriages in India. The ways of achieving the same have also been analyzed looking at the global legal purview on the situation. Further, the conflict that might arise out of the recognition that same-sex marriages hold in certain countries whereas, few of them have still not marched towards accepting the equality of homosexuals as a gender. The paper also analyzes the route of “civil-partnership” which has been adopted by various countries and how it varies from legalizing the act of marriage. The author concludes the paper with a belief that coinciding all personal laws to amend the provision of marriage and recognize homosexual marriage is a tedious task thus, granting the recognition to same-sex marriages under SMA seems a reasonable valid option as that would not contradict the religious belief of any specific community inviting strong oppositions from anyone. Further, the ‘civil-partnership’ concept which has been adopted by various countries might seem a feasible and swift move to achieve is unsatisfactory and not at par with the institution of marriage.
Why Same-Sex Marriages?
Well, as rightly said, every journey similarly has its steps; it was first necessary to decriminalize the consensual sexual activities between LGBTQ which led to the budding of the present change being a ground of suggestion for amendment in the existing SMA. This objective of seeking parity with heterosexual relationships itself may be critiqued because heterosexual marriages and family relationships are imbued with the outmoded values of patriarchy. If a family is considered a microcosm of society, it’s difficult to achieve radical changes in society while seeking acceptance into its traditional family norms. Well, this debate furthers another tangent as well which includes the individual preferences of homosexuals to get married or not as that may vary inside communities and the outside conditions involving government policies and benefits. Further, the traditional belief in marriage has been associated with procreation which becomes another ground of debate in the present scenario. The legal benefits of succession, maintenance, pension rights and economic benefits are exercisable by those related to marriage or blood which automatically works to the exclusion of homosexuals and also abrogates their rights enshrined under Art. 14, 15 and 21 of the Constitution of India. Marriage has been the institution of validating the relationship between two people and society has given recognition to couples post-marriage only. Going by the societal norms, it is pretty simple for same-sex couples to desire to get their relationship validated in the eyes of law as they have been brought up in the same culture. Moreover, the psychological, emotional and social dimensions associated with marriage do not vary based on consenting parties to the marriage.
In the light of Human rights, the European Convention on Human Rights has enshrined all human beings with the “right to marry” to any man and woman of choice and to have a family. Further, the exercise of this right is closely linked with the exercise of Art. 8 which embodies the right to respect for private life and family life. Further, irrespective of the sex, every person has a right to life which includes the right to marry and to choose their marital partner over which state should have no control beyond prescribing the essentials to the marriage. Gender does not qualify to be a reasonable restriction to marriage in the light of equality. Thus, the straightforward argument in favour of same-sex marriage is that if two people want to commit marriage, they should be permitted to do so, and excluding one class of citizens from the benefits and dignity of that commitment merely on the ground of gender demeans them and insults their dignity.
Difference Between Civil-Partnerships And Marriage
By route that has been adopted by a lot of other countries, a possible legal way of recognizing same-sex marriages could be through civil unions or partnerships. Many countries like, including but not limited to, United States of America, New Zealand, Australia and several Latin American and European countries have enacted legislation recognizing the civil union or partnership of same-sex couples. Countries like Germany have conferred only limited legal rights on those entering a civil union. The legal benefits are restricted to laws relating to tax, pensions and adoptions. Other models, like in Vermont following the direction of the Supreme Court of Vermont, provide partners with the same legal benefits as those who are joined in marriage. The Supreme Courts of Vermont and New Jersey have held that same-sex couples cannot be excluded from the benefits of marriage but the State can decide whether the benefits should be conferred within the framework of a marriage or whether a parallel domestic partnership is to be preferred. Such ‘separate but equal’ institutions should be like marriage and should confer the same legal benefits as a marriage.
As mentioned above, marriage has a social and cultural validity that has been existing historically. Marriage is a core institution that is not a mere contractual relationship forged to gain the benefits associated with the liaison. A will of recognizing the relationship within that parameter is not a gender-specific will. The biggest ease that is found in the proposal of a civil partnership is that it derives less opposition from the hypocrite guards of personal law and cultural practices. But, contradicting the equating nature of civil partnerships to marriage, is furthermore discriminatory. The argument being, that if there exists an institution for recognizing couples legally and socially, then, introducing a specific, similar-sounding yet differing concept of unison for gender or a particular group of people proves the whole existence of the law to be more gender biased than anywhere close to neutral. The mere fact that two institutions sound similar or confer the same legal rights does not equate to them. The mere existence of two institutions in place of one is the sole basis of the difference that has been existing.
National And International Status Quo: The Conflict Of International Law
The conflict of International law arises when there are different laws and status of laws over a particular issue as it gives the scope of finding the little benefit of the doubt and escape to the benefit of self. On the present issue, various countries have legalized same-sex marriages and equally, countries are denying it whereas some have been trying to find a balanced or neutral leap from making any changes to specific laws.
On the present status in India, same-sex marriages are not illegal in India but this does not imply that it has been validated and legally recognized. While S.377, IPC has been decriminalized in India but same-sex marriage has not been legally recognized under any specific law. The marriage laws in India reflect a very heterosexual union bias.
On a global scale, a lot of countries have given recognition to same-sex marriages and have accepted the parity of all genders and their choice of living life some countries do not recognize same-sex marriages but do not even stop or refrain from recognizing the couples who married in any country where homosexual marriages are allowed. Where India specifically has started marching towards this route, it is still far from legalizing same-sex marriages.
In 1999, France enacted a law governing civil partnerships and in 2013, it legislated recognition of same-sex marriages. Similarly, England and Wales recognized civil unions in 2004 but have legislated to recognize same-sex marriages in 2013. However, only providing the option of civil unions and excluding marriages for same-sex couples is itself discriminatory, since it provides a class of people only an option that possesses an inherently lower status than marriage. Legislations recognizing civil unions have been enacted in many states in the United States of America, several Latin American and European countries, Australia and New Zealand. Different models of civil unions have been implemented in these jurisdictions. Some states in the United States of America have domestic partnerships that are only recognized by city councils and private companies that extend spousal benefits to the same-sex partners of their employees.
On the other hand, there have been countries that have been absolutely against same-sex marriages or union. Nigeria has an existing Same-Sex Marriage (Prohibition) Act, 2013. Israel does not validate same-sex marriages but allows couples to stay in once they have been married outside of any other country which validates same-sex marriages. The European Court of Human Rights ruled that in 2002 that the right to get married extends equally to transgender and homosexual as well. There have been acts that have validated the union of same-sex marriages and civil partnerships in their acquired genders such as but not limited to, Gender recognition Act, 2004, The Marriage (Same-sex Couples) Act, 2013 and Marriage and Civil Partnership (Scotland) Act, 2014.
Preference of Amendment To SMA Instead Of Personal Laws
India is a diverse country with various Personal laws and all the religions are stringent in accepting changes. Hence, suggesting or progressing a change in personal laws which vary for each community, is a tedious and lengthy task. Further, it will also initiate a lot of debates on religious and customary practices. Hence, on a comparative note, SMA does not bind itself within the ambit of any specific religion and hence, any amendment and recognition of same-sex marriages within its gab seems a reasonable and realistically achievable approach.
SMA being a secular law allows the persons consenting into marriage irrespective of their religion, caste, creed, etc. to get their marriage registered with the Marriage registrar officer instead of the rituals.it is not difficult to accommodate same-sex marriages within the framework of SMA. It would only be necessary to amend Section 4(c) so that it reads that a party, if male, should have attained the age of twenty-one years and if female, should have attained the age of eighteen years and to add a specific provision that same-sex marriages are permitted. In any case, even if personal laws are amended to recognise same-sex marriages, the SMA would have to be amended to accord the same recognition to relationships between persons belonging to different religions.
Although, while the change is easy to draft and cannot be said to interfere with religious freedoms, it is bound to generate vocal opposition. The amendment to the SMA would be similar to the laws permitting same-sex marriages enacted in other countries. Three State Supreme Courts in the United States, those of Massachusetts, Connecticut and Iowa have held that a marriage law that did not permit same-sex couples to marry was unconstitutional. All three courts invoked both due process and equal protection clauses and pointed out that the right to marry is an individual liberty right that also involves an equality component. A group of people cannot be denied the right of marriage granted to others, without a very strong justification, which, the court held, did not exist.
After the Naz Foundation case, this option appeared very promising. The decision had emphasised that Article 15 of the Constitution conferred personal autonomy on all individuals and prohibited discrimination based on religion, race, caste, sex and place of birth. The Naz Foundation court opined that sex as a ground includes within it sexual orientation since “discrimination based on orientation is grounded in stereotypical judgments and generalisations about the conduct of either sex.”
All the above arguments in favour and in against homosexuality suggest that Indians are not ignorant about homosexual events around the world and their legalization but still they have some reservation about homosexual relations. Indian society, by and large, disapproves of homosexuality and justifies it as a criminal offence even when adults indulge in private but the unanimous stride towards the decriminalization of S. 377 gives an insight into the vice versa been acceptable with coming times.
The sanction through a civil union or via same-sex marriage is equally severe to obtain. The clear denial of choices of marriages deprives same-sex couples of exercising their basic rights. In the light of the present scenario in India, the most reasonable and pragmatic solution to the subsisting issue, in the author’s opinion, seems to be instituting an amendment in the existing provision of the Special Marriage Act. Further, validity should be given to same-sex marriages and not to civil partnerships to the exclusion of same-sex marriages as the same will create a never-ending line of discrimination. In the words of Justice Ginsberg of the US Supreme Court, it would mean accepting two kinds of marriage – the ‘full marriage’ and a sort of ‘skim-milk marriage’. If a civil union model were to be adopted in India, it would be necessary not only to enact a new law governing civil unions but also amend relevant legislation like the Indian Succession Act, 1925, Guardians and Wards Act, 1890, Workmen’s Compensation Act, 1923 and a host of other legislation relating to succession, adoption, pensions etc. so that a partner in a civil union is given the same status as a spouse and considered to be ‘family’.
In a society that gives marriage such religious significance, the most satisfactory course would be the enablement of same-sex marriages under personal laws. However, it would be an uphill task to seek amendments to the personal laws of all religions. Any judicial intervention in this regard would be perceived as interference in religious freedom. In this scenario, the most viable option appears to be legislative amendments to the SMA to include same-sex marriages which can be supported by international precedents and could be used to mount a constitutional challenge to the SMA as being discriminatory based on sexual orientation and seek a reading of the Act to the extent of permitting same-sex marriage.
 Navtej Singh Johar & ors. v Union of India, AIR 2018 SC 4321.
 S. 377, Indian Penal Code, 1860- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Supra note 2.
S. 2(g), Economic benefits based on Employment Provident Fund Scheme, 1952 and S. 2(d), Workmen’s Compensation Act, 1923.
 Baker v. Vermont, 744 A 2d 864 (Vt 1999).
 Lewis v. 188 NJ 415: 908 A 2d 196 (NJ 2006).
 Goodridge v. Deptt. of Public Health, 798 NE 2d 941 (Mass 2003).
 Kerrigan v. Commr. of Public Health, 289 Conn 135 (2008).
 Varnum v. Brien, 763 NW 2d 862 (Iowa 2009).
 Naz Foundation v. Govt. of NCT of Delhi (2009) 160 DLT 277.
ShreyaShukla is a B.A. LL.B.(Hons.) graduate from Jamia Millia Islamia. She has a strong interest in Intellectual Property Laws and Arbitration and is enthusiastic about Art and Fashion Laws.