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THE WEDDING BETWEEN TWO SOULS: LEGALITY OF SAME-SEX MARRIAGE IN INDIA

Author: Gautami Abhay Naik, B.A. LL.B (Hons) from Maharashtra National Law University, Nagpur


Nearly two years back, the Hon’ble Supreme Court of India in its almost 200+ judgment on the historic IPC section 377, decriminalized homosexuality. This historic judgment not only highlights the grounds of decriminalization, but also some of the other opinions and comments made by the other party. In the following decision made by the Supreme Court of India, in Suresh Kumar Koushal v. Naz Foundation, where it upholds the validity of section 377 of the penal code, where it decriminalizes the section and carnal intercourse ‘against the order of nature’. For instance, one of the parties to the judgment put forward and said, “if Section 377 is declared unconstitutional, then the family system which is the wall of social culture will be in shambles, and the institution of marriage will be deeply affected and the rampant homosexual activities for money would urge and motivate young Indians into this trade,”


Whereas, Justice Indu Malhotra, in her judgment had said, “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The Members of this community were compelled to live a life of fear of reprisal and persecution.”[i]


In a country like India, where the practice of same-sex marriage is considered a taboo or even for that matter ignored for such a long time, this particular decision by the supreme court of India is indeed considered to be of prudence. The social and the legal discrimination of the LGBTQ+ had been a really strong and long struggle. Before the decriminalization of homosexuality in India, other countries such as the Netherlands, Spain, Norway and Argentina had already achieved and legalized same-sex marriages in their respective countries. The Netherlands, in December 2000 became the first-ever country, to legalise same-sex marriage by passing a bill in the allowance of the practice in the Dutch Parliament.


Whereas, Belgium at the same time became the second-ever country of legalising the concept of same-sex marriage. With Canadian parliament passing the bill in the year 2005 for the legalization of same-sex marriage nationwide became the third country. But isn’t it visible that India has come a long way, for its recognizing the rights for the LGBTQ+ community? Even today after the judgment has been passed the Indian culture still tends to be against it. For it, India officially still does not allow or recognize same-sex marriages, or the rights of the same-sex couples, or them living together. But as we know that, everything takes time, and that every step we take forward is for the betterment and the welfare of the society, therefore, this year the High court of North, i.e. the Northern State of Uttarakhand it ruled that Same-Sex couples are allowed or permitted to live together, even though if they may not be entitled to be married. For a country like India with a rich heritage, morals and culture, languages, traditions and beliefs, where marriage between two people men and women is considered to be important or where the cultural tradition or its rituals only says that the union of man and women is considered to be a legal marriage, then in such a country license to same-sex marriages or to live in together or even for the people to accept the homosexuals is a little difficult. In Hinduism or India, family is considered to be the epitome of social culture, and in such cases denying and disobeying their family or going against the will of their parents is not acceptable. And therefore, even today, after the judgment being passed the homosexuals and the LGBTQ+ community is still not recognized in their own families. And there’s still fear for them to come out in public and socialize with others. And therefore, it not sufficient to only decriminalize homosexuality but also work towards the recognition of same-sex marriages and the various ways to obtain such legal recognition. Navtej Singh Johar, one of the petitioners in the case, filed a writ petition in the Supreme Court of India, seeking for the right of sexuality, and right of sexual autonomy and the right of the partner of his/her choice as guaranteed under article 21 of the Indian Constitution. And finally, on September 6, 2018, the Supreme Court of India gave the judgment in the favour them, decriminalizing homosexuality, for thousands and millions of them who are yet and still in the closed closet.


Two of the decorated lawyers of India, Arundhati Katju and Maneka Guruswamy, who represented the case of Navtej Singh Johar v. Union of India, 2018, said that ‘India is a marriage country’ and here only one type of marriage is recognized that is the marriage between men and women (heterosexuals) one. As even today, even inter-caste marriage is a struggle and social stigma. For that one of the legal aspects, in a country like India, is that in an Indian Culture you are not given enough freedom and right to choose your partner. It is only your parents or family who are ones to choose them. And therefore, it becomes difficult for us to even talk and mention about your love interest or even choose the partner of your choice to marry.


Through the case of Navtej Singh Johar, the Supreme Court of India has struck down Section 377, as it violates the articles 14,15,19 and 21 of the Indian Constitution as well as it also talks about rape laws reform protecting the male survivors of the sexual violence. Also, as a result, there should be more case where men are the victims in the case, as we know that under 2013, rape law amendments sexual assault is not only limited to penile-vaginal intercourse. And also that there are not enough laws made in the favour of men, where the males are the victims of sexual assault irrespective of whether or not they are transgender.


Although the first step of decriminalization of section 377, has been struck down by the court, there still exist many loopholes, as to the next step is to legalise the same-sex marriages and the rights of the LGBTQ+ community. The Parliament needs work and fills these lacunae in the Law.


1. Legality of Same-Sex Marriages; Navin Kumar Jaggi

http://www.legalserviceindia.com/legal/article-4118-legality-of-same-sex-marriages.html

2. The Unanswered Questions of Same-Sex Marriages in India; Paras Sharma; October 9, 2020

https://www.jurist.org/commentary/2020/10/paras-sharma-india-same-sex-marriage/

3. Legal Recognition of Same-Sex Relationships in India; Nayantara Ravichandran;

http://docs.manupatra.in/newsline/articles/Upload/B07BDF52-0AA4-4881-96AC-C742B9DB217D.pdf


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