STATUS OF SAME SEX MARRIAGE IN INDIA
Author: Shreya Dangayach, III year of B.A LL.B (H) from School of Law, JECRC University, Rajasthan.
The status of same-sex marriage in India is neither legal nor illegal as the Acts which covers the Indian Marriage Laws viz, Indian Christian Marriage Act, 1872, Special Marriage Act, 1954, Hindu Marriage Act, 1955, Parsi Marriage Act, 1936, Anand Marriage Act. 1909 and Muslim Personal Law (Shariat) Application Act, 1937 does not explicitly defines marriage as between the opposite sex only i.e. man and woman. This status of marriage has only been recognised by the society and courts of India. In India, only Goa has the unified marriage law and which explicitly define marriage as between man and woman or people of the opposite sex. Same-sex marriage in India came forward when the national press reported the marriage of two policewomen marrying each other in the year 1987 as per Hindu rites. After this report, much same-sex marriage news came up in society and people started discussing it.
Traditionally, same-sex marriage in India was considered a cultural bound syndrome and associated with social disorder. Therefore, the LGBT groups focused on repealing Section 377 of IPC and in 2018 were accomplished in doing so when the Supreme Court gave the legal status to such communities or groups. Still, the Supreme Court has not recognised such marriages as legal but has stated that such people have the right to live together. The court has not given any ruling or judgement related to their marriage. There is only one single case of same-sex marriage that got legal recognition by the Punjab and Haryana High Court in the year 2011. Then, in 2014 for the first time, this concept was favoured by the Aam Aadmi Party leader, Medha Patkar 2014 were stated that their party supports the marriage of the same sex. And, in 2017, a draft of a Uniform Civil Code that would sanction same-sex marriage was proposed. Under the proposed code, marriage was characterized as:
"the legal union as prescribed under this Act of a man with a woman, a man with another man, a woman with another woman, a transgender with another transgender or a transgender with a man or a woman"
It also stated that any two people who have been in a partnership for over two years will have the same rights and commitments as wedded couples. Moreover, the draft further stated that all hitched couples and couples in a partnership shall be eligible for the adoption of a kid.
The draft was submitted to the Law Commission of India. Regardless of whether India ought to embrace a Uniform Civil Code involves progressing political discussion in India and the Bharatiya Janata Party bolstered it, while the Indian National Congress and the All India Muslim Personal Law Board restricted it. Hence, the Law Commission requested open perspectives and demands on the issue on 19 March 2018, and later extended the date for public opinion to 6 May 2018. In late May, the Commission started looking for perspectives on religious gatherings. However, it couldn't be reached to any conclusion which could evidence the status as legal by Law. When on February 5, 2018, Supreme Court ruled that two consenting adults have the right to marriage and no one should interfere in their marriage, this resulted in a highly favoured concept by the Indian society which comprised the majority of youths. The Supreme Court in the case of Shakti Vahini v. Union of India[i]stated that it is the fundamental right of an adult to marry a person of his/her choice and no one should interfere with it.
However, the Centre again in February 2021 opposed the recognition of same-sex marriage in India before the Delhi High Court and prayed for the petitions seeking such recognition to be dismissed. The Central government stated that inclusion or recognition of same-sex marriage under Indian Laws would hamper the concept of marriage in India. India is a country, “where marriage depends highly on the age-old customs, rituals, practices, cultural ethos and societal values”[ii]. Centre further argued before the Delhi High Court that while reading down the Section 377 of IPC via. Shakti Vahini v. Union of India[iii], the Supreme Court of India never intended to legitimize the human conduct in question rather just decriminalised a particular behaviour of a human.
The reasoning behind the Centres objection against the recognition of same-sex marriage before the Delhi High Court is that such marriage is incomparable with the Indian family unit concept. In India marriage is not only between two people, rather it is a solemn institution. It is between two families and the families are united through marriage. Hence, there are till today no legislation made by the Indian Parliament about legalising same-sex marriage. But, this concept is getting its legality through the judicial pronouncements. However, the battle between the Legislature and Judiciary about legalising same-sex marriage is ongoing in India and the Centre is opposing its framework to date.
Further, recently on May 12, 2021, The High Court of Punjab and Haryana while hearing the Criminal Writ Petition number 4268-2021 observed that if protection from relatives is granted to the live-in couples then such protection would disturb the entire social fabric of the Indian Society[iv].
[i] (2018) 7 SCC 192.
[iv]Ujjawal and another versus State of Haryana and others [CRWP-4268/2021 (O&M)].