Challenging The Shackles Of Inequality Vis-À- Vis Same-Sex Marriage
Author: LawSphereX
Category: Family & Personal Law
Published:
Updated:
CHALLENGING THE SHACKLES OF INEQUALITY VIS-À-
VIS SAME-SEX MARRIAGE Mr. H Krishna Chandra Dora & Miss Pratikshya Priyadarshini Beura, BA LLB (H), University Law College, Utkal University, Bhubaneswar, Odisha, India.
ABSTRACT
The Hon’ble Supreme Court of India recently in the case of Supriyo v. Union of India1 gave a 3:2 split judgement where the major takeaways are that there is no fundamental right to marry but there exists the right to choose their partner; there is a right to co-habit but no formal recognition of anything under the umbrella of marriage for the queer people. Such restricted acknowledgement of the issues relating to same-sex marriage tantamount to no acknowledgement at all. The principal query that needs to be addressed now is: What good is cohabitation if it prevents a couple from exercising their rights as a married pair? If there is no validation of the cohabitation or designation/nomenclature of marriage, the vast advantages that come with marriage, including societal validation and legal validation of the union, would be denied.
Ultimately, the LGBTQ+ community will lose access to banking services, adoption rights, and recognition, among other things. This paper will delve into a critical analysis of the subsequent rights being violated due to the aforementioned judicial decision. Keywords: Right to marry, gender inequality, same-sex marriage, marriage benefits, queer union.
1 Supriyo v. Union of India, (2023) INSC 920 (India) [hereinafter ‘Supriyo’].
INTRODUCTION
A rich and diverse nation such as India is struggling to deal with hash reality within its boundaries. The topic for discussion is the rights of the people of LGBTQ+ community. The decriminalisation of consensual homosexual sex in the year 2018 sparked some hope in the hearts of the said community about their freedom to represent themselves and the secure their rights associated therein. However, the development was not worth merry making because it was due to be effectuated in the hearts of the society. Even in the ultra-modern era of 21st century, the queer people still face an array of discrimination with societal bias undermining their fundamental rights. This is not only a shadow from the past, but a lived experience that is woven into the very fabric of their daily existence.
This prejudice succeeds to creep into the crucial matters of the society such as that of marriage where same-sex partnership is not acknowledged and the queer people have to face the societal stigma, the misconception that their love is not worthy of social approval; adoption, which is another sensitive right is denied to them basis that their love is insufficient to raise a child and are regarded as unfit parents; in the financial structure such as insurance, nominee, etc. also their wellbeing is endangered, such overt economic discrimination conveys a terrifying message: your identity determines your access to even the most fundamental security. Although decriminalisation was a significant step, it was only the beginning of a picture that needed to be painted completely. More is required for true equality than just the avoidance of punitive actions.
It calls for tearing down the barriers created by discriminatory legislation and smashing the glass ceilings that impede access to marriage, adoption, and financial stability. GENDER AND SEX: Gender inequality is not a foreign concept in the Indian society. The underlying patriarchal society of India prevailed from time immemorial where the two genders were not treated equally in the eyes of the society. Although there is substantial change in the status of women, they are still considered below the men. This nature of creating difference between genders has been continuing till now. To understand the intricacies more effectively, it is prominent to understand what is gender and what is sex. At a broader prospect, both the words more or less convey the same meaning but the basis of nomenclature of the two words is different. The biological construction of a person, i. e.
, the state of being male or female, is acknowledged by the sex of the person. 2 Sex relates to the anatomy, physiology, genetics and hormones of a body, and is determined biologically at the time of birth and therefore cannot be changed. 3 Whereas the social construction of a person, i. e. , particular quality(s) associated with the sex, by the society, is acknowledged by the gender of the person. 4 Gender relates to identity, rules & norms, relations and power of a person which is determined culturally through learning and knowledge of the society and therefore can be changed or modified. 5 MARRIAGE AND CIVIL UNION: The term marriage has not been exclusively and extensively defined in any of the legislation in India, period.
The basic understanding of the term “marriage” is that it is a religious institution between two persons governed by the religion of choice which forms a legal relationship between the two, ideally persons of opposite sex- a male and a female, who enjoy the benefits of a couple, be it may the right to cohabit, right to procreate or right to inherit and several others. In the words of Edward Westermark, a marriage is a relationship between one or more men and one or more women that is accepted by law or tradition which entails rights and obligations for the persons involved as well as for their offspring. 6 According to H. M. Johnson, “Marriage is a stable relationship in which a man and a woman are socially permitted without loss of standing in the community, to have children”. Ira L.
Reiss writes, “Marriage is a socially accepted union of individuals in husband-and-wife roles, with the key function of legitimating of parenthood”.
2 Gender, Oxford Online Dictionary.
3 National Academies of Sciences, Engineering, and Medicine (2022), “Measuring sex, gender identity, and sexual orientation.” [hereinafter, “National”] available at (last accessed on January 3, 2024).
4 Sex, Cambridge Online Dictionary.
5 National, Supra n3.
6 Puja Mondal, “Essay on Marriage
Meaning, Functions and Forms,” available at (last accessed on January 3, 2024).
Marriage is said to be a religious or pious sacrament between the spouses in the name of God in Hindu religion, which is the religion followed by the majority of Indians (around 70% of Indians). Whereas in Muslim law which is followed by around 19% of the Indians, marriage is said to be a contractual agreement between the spouses with God as the witness. The essence of barbaric and arbitrary division of the same concept into too many flavours under the guise of diversity is certainly leading to an even more complex structure of the personal laws which are already sensitive in nature. The difference in the concept of marriage in different religions is negatively affecting the cause of implementation of welfare state and securing human rights of the people. This forms an important basis for the introduction and enactment of a Uniform Civil Code as enshrined under Art.
44 of the Constitution of India, 1950 (herein after as “Constitution”) which gives liberty to the State to create a uniform civil code to be followed by all its citizens irrespective of the religion. The power to make and amend laws relating to marriage and divorce is specified in Entry 5, List III (Concurrent List) of the Constitution which enables both the centre and state governments to make and amend laws relating marriage, divorce, infants or minors, adoption, succession including wills and intestacy, subject to the condition that it should not violate their personal law. The laws of marriage in subsistence intend to create a socio-legal liability and responsibility between a male and a female as a married couple. But with afflux of time, it is being stretched to accommodate within the ambit of its meaning the queer community.
This ultra-modern edition of marriage between two homosexual persons is commonly known as a “same-sex marriage”. In the international scena Civil union is the legal status granted to the homosexual couples which allows them to utilise the rights which are usually associated with a legalised marriage. Not all rights of a married couple are equitable with the status of civil union thereby giving space for a few key differences between the both. Provided that the homosexual marriage does not fall under the religious definition of marriage, a civil union is a measure designed to provide same-sex couples with comparable legal protections. MARRIAGE: In the field of love and community, India's diverse terrain conceals a stark aberration.
Although the decriminalization of Section 377 of the Indian Penal Code, 1860 offered some hope, the Special Marriage Act, 1954 and other personal laws continue to impede the queer community's desire for marital status. Within each community, marriage is governed by a patchwork of laws from the Hindu, Muslim, Christian, and Parsi traditions. Since none of them accept same-sex partnerships, LGBTQ+ people are essentially prohibited from marrying within their own faiths. The Special Marriage Act aims to create uniform legal safeguards for those seeking to marry outside of their caste or religion giving shelter to the interfaith couples. It also aims to recognize the rights of children born out of such marriages and lessen the possibility of social evils like honour killing and love jihad.
But its lack of discussion on same-sex marriages leaves room for discriminatory interpretations and registrar rejections, creating a legal limbo. The said act presumes that the parties to the marriage are an opposite-sex couple. For instance, the requirements for solemnizing a marriage under Section 4 of the said act are that the male spouse is of the age of 21 years or above and the female spouse the age of 18 years or above. It is again presumed that the spouses are of opposite sex since the gender-specifics terms such as "widow," "widower," "bride," and "bridegroom" are used in relation to the Act and the Schedules. Additionally, the parties to the same-sex couple does not fall under the category of the prohibited degrees of relationship as detailed in the Schedule I of the Act.
There is a clear absence of any concrete reason to refute to register their marriage other than their sexual orientation. This contradicts the principles of equality before the law and antidiscrimination by failing to ensure that the choice to solemnize same-sex weddings is a part of the Special Marriage Act's design, even as it attempts to legislate on the solemnization of all marriages outside the realm of personal law. The Foreign Marriage Act, 1969 can similarly be read down. LAVENDER MARRIAGES: Throughout history and throughout many cultures, marriages between individuals of the same sex for the purpose of social appearances or legal advantages have been referred to as "lavender marriages. " In numerous countries where same-sex partnerships were prohibited or highly stigmatized, these unions provided a means for people to live in a society that did not embrace their actual selves.
There were many different and intricate reasons for getting into a lavender marriage. Some people yearned for social acceptability and the capacity to procreate while some were concerned about their inheritance rights or financial security. In order to allay suspicions or stave off persecution for engaging in same-sex relationships, lavender marriages were also utilized. Lavender weddings are common, but they are frequently surrounded by shame and secrecy. The couples in question lead double lives, taking great care to preserve their appearance while keeping their actual emotions and wants hidden. Couples who were unable to completely be themselves with their spouses, as a result of this secrecy, frequently experienced emotional discomfort and loneliness. In order to strengthen the institution of marriage, divorces need to be mitigated.
In India, if non-heterosexuals are not allowed to marry, it is quite likely for a homosexual man to marry a heterosexual woman or homosexual woman that ties them in an unhappy relationship with that man. This is how the institution of marriage is weakened by ruining two lives and given that people of different biological sexes can marry, this would be acceptable. There is nothing more detrimental to the notion of marriage than a homosexual man marrying and committing adultery or vice versa proliferating the number of divorces. BENEFITS DERIVED FROM MARRIAGE: Matrimony is more than just a privilege or an advantage. Instead, it serves as the cornerstone for a couple's ability to engage fully in society.
Social validation, self-respect, fulfilment, security (financial and otherwise), and other legal and civil benefits, such as those pertaining to taxes, inheritance, adoption, joint ownership of assets and those around health decisions and other areas, are all derived from marriage. There are many advantages that marriage, a holy union blessed by custom and law, provides to both individuals and society as a whole. The advantages of marriage in India, a country with many different legal frameworks and cultural customs, go far beyond social and emotional fulfilment and include a plethora of inherited, financial, and legal privileges. Let's delve into the complex web of benefits that Indian law weaves into the institution of marriage and how it affects all facets of life.
Adoption: Joint adoption under Regulations 5(2)(a) and 5(3) of the Adoption Regulation, 2022 requires proof of a marital relationship by a married couple with a stable two-year marital relationship, which goes beyond the provisions of Section 57 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which covers marriage like relationships, such as same-sex marriages and stipulates the requirement of consent of both the spouses. Therefore, rendering the regulations ultra vires for discrimination based on sexual orientation, violating the right to adoption and motherhood and overlapping the Act of 2015. Relating to the international perspective, the Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption, 1980 and the Convention on the Rights of Children 1989 also recognize the right of a child to be adopted.
Surrogacy: India, a country that values modernity while maintaining strong traditions, is currently attempting to navigate the complicated issues surrounding surrogacy and how they relate to the rights of the LGBTQ+ population. However, a glaring gap persists in the legislation: same-sex couples' aspirations for parenthood are left buried in a maze of inequality and legal uncertainty. The Surrogacy (Regulation) Act, 2021 prohibits same-sex couples from using surrogacy to have children as Section 2(1)(h) of the Act only permits married Indian heterosexual couple where the man above 21 years of age and the woman is 18. Section 4(c)(ii) of the Act stipulates the intending couple must be married and between the age of 23 to 50 years in case of female and 26 to 55 in case of a male.
Furthermore, Section 2(1)(e) of the said Act restricts the samesex couples from using assisted reproductive technology to become parents. Denying queer people, the right to surrogacy raises concerns about equitable access to reproductive healthcare and the fundamental right to parenthood, possibly in violation of the Articles 14 (Equality before law) and 21 (Right to life and personal liberty) of the Constitution which guarantees everyone, including LGBTQ+ people, the freedom to start a family and the right to a fulfilling family life. The legal definitions of "family" and "household" are wide and do not only refer to a "biological" couple and their offspring. Only married couples are eligible for surrogacy and adoption, depriving LGBTQ couples of the opportunity to start a family.
Miscellaneous Benefits: Beyond giving the couple's relationship societal legitimacy, marriage confers other intangible benefits such as the benefits on the offspring of the marriage which are hard to quantify. Children born out of wedlock receive benefits sequentially from the law. Furthermore, as illegitimate offspring are rejected by society, the legal acknowledgment of the conceptions of legitimate and illegitimate children has social ramifications. These intangible advantages of marriage show that marriage is viewed by society as the only foundational element that allows for the development of familial ties as noted by Marshall CJ in Goodridge v. Department of Public Health7, that a civil marriage actually has three partners: two parents and an approving State. Every facet of life is touched by the many concrete advantages that the State bestows upon married couples.
The following categories apply to tangible benefits of marriage: (i) benefits connected to marriage and child care surrounding the rights to permanent alimony and maintenance8; (ii) benefits of property- Securing a portion in the event of an intestate succession in accordance with Hindu Succession Act, 1956 and the Indian Succession Act, 1925. Children born out of void or voidable marriages now have legitimacy and a subsequent right to or in the parents' property (and not that of any other person) thanks to Section 16 of the Hindu Marriage Act, 1955; (iii) benefits of money- Claim for provident fund as dependent of deceased spouse under Section 2(c) of the Provident Funds Act, 1925. The right to nominate a person for gratuity under Section 55 of the Code of Social Security, 2020 subject to the condition mentioned in Section 55(3) that nomination
7 Goodridge v. Department of Public Health 798 N.E.2d 941 (Mass. 20003), 127.
8 Section 25 of the Hindu Marriage Act, 1955;
Section 37 of Special Marriage Act, 1954; Section 40 of the Parsi Marriage and Divorce Act, 1936; Section 37 of the Divorce Act, 1869; Section 125 of the Code of Criminal Procedure, 1973. should only be limited to family members. Furthermore, Section 32 of the said Code entitles the spouse or the eldest surviving member of the family to receive burial expenses for the departed insured person.
Also receive medical benefits for insured person’s spouse under Sections 32 and 39 of the said Code; (iv) tax benefits such as deduction of costs relating to spouse's health insurance premium and life insurance premium under Section 80C and Section 80D of the Income Tax Act, 1961, respectively; (v) evidentiary privilege- Section 122 of the Indian Evidence Act, 1872 grants communications made during marriage the status of evidentiary privilege; (vi) benefits from the community; and (vii) other benefits. Among the civic privileges are the ability to apply for citizenship or to be an Indian citizen abroad as a result of the citizenship of the spouse under Section 5 and 7A of the Citizenship Act, 1955.
Other legal benefits that are that, the Section 2(i) of the Transplantation of Human Organs and Tissues Act 1994 acknowledges spouse as a near relative apart from son, daughter, father, mother, brother or sister, to object to the use of a deceased person's body for therapeutic purposes. Similarly, the declaration to donate organs ought to be made in presence of at least one near relative. Loss of consortium is a recognized monetary compensation that is to be given fair weightage in claims, including claims for damage and death in Motor Vehicles Act, 1988 cases. Consortium is described as "the right to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate.
" The consortium is known as a "spousal consortium," available exclusively to married couples, and the spouse is entitled to receive, and must be fairly compensated for, compensation in the event that they lose companionship, love, care, protection, etc. According to Rule 3(2) of the Payment of Wages (Nomination) Rules, 2009, which are based on the Payment of Wages Act, 1936, each employee must nominate a family member for as long as they are living. According to Employees' Provident Funds and Miscellaneous Provisions Act, 1952, Clause 61 of the Employee's Provident Fund Scheme, 1952 mandates that the employee only designate a family member as the beneficiary of the amount that may stand to his credit in the fund in the event of his death.
Dependent parents, children and spouse are entitled to be paid by virtue of Section 10A (4) of The Employees' Pay Act, 1923 which is not applicable to a same-sex couple. In the event of the death of the participant enrolled under the Pradhan Mantri Shram Yogi Maan-Dhan Yojana, the spouse is eligible to receive half of the pension as a family pension, the same-sex partners are not eligible for this benefit. Same-sex couples are not eligible for private advantages like joint account opening, health benefits in private employment, club memberships, or spousal benefits granted under specific work permits. Even though the law allows non-relatives to be nominated, same-sex couples face greater obstacles to entry and greater scrutiny when it comes to nominations for mutual funds and savings plans, private life insurance, and health insurance.
A government employee in a same-sex relationship is not permitted to render their same-sex partner access to employment benefits that are accessible to their spouse. These consist of petitions for family posts, same-city postings when both couples are employed by the government, compassionate appointments, family pensions upon the death of a government employee, and Central Government Health Scheme coverage. GLOBAL AND LOCAL STATUS QUO: Many countries such as Bolivia, Croatia, Italy, Greece, Hungry, etc have recognised the queer couple with legal effect of a civil union and registered partnership. Several other countries such as Australia, German, France, United States of America, United Kingdom etc have given their assent to recognise same-sex couples has married couples. The Supreme Court of United States, in the landmark decision of Obergefell v.
Hodges (2015), recognised same-sex marriage as lawful and valid marriage, prior to which there was the law of civil union for same-sex couples. In the Indian scenario, by way of NALSA v. Union of India9, the transgenders were recognised
9 National Legal Services Authority v. Union of India & Ors, (2014) 5 SCC 438 (India).
as the third gender in addition to the two existing genders- man and woman. The act of consensual homosexual sex, which was an offence under Section 377 of the Indian Penal Code, 1860 was decriminalised in the case of Navtej Singh Johar v. Union of India10 while overruling the judgement of Naz Foundation case11. It was held by the Hon’ble Supreme Court of India in the landmark decision of K. S. Puttaswamy v. Union of India12 that the sexual orientation of any individual comes under the ambit of Right to Privacy which is a Fundamental Right as enshrined under Article 21 of the Constitution. The Right to Choose Their Partner was recognised as a fundamental right coming under the ambit of Right to Life as enshrined under Article 21 of the Constitution in the case of Shakti Vahini v. Union of India13.
Hon’ble Miss Justice Savitri Ratho of the Hon’ble High Court of Orissa was pleased to recognise the Right to Cohabit as a fundamental right coming under the ambit of Right to Choose Their Partner under the head of Right to Life as enshrined under Article 21 of the Constitution in the case of Chinmayee Jena v. State of Odisha14. The judgement pronounced by the Hon’ble Supreme Court in the case of Deepika Singh v. CAT15 expanded the definition of family to include unmarried partnerships and queer relationships. Lastly, in the latest landmark decision of Supriyo v. Union of India16, the Hon’ble Supreme Court of India held that there is no fundamental right of right to marry while upholding validity of Special Marriage Act, 1954. The Hon’ble Dr.
Chief Justice D Y Chandrachud added that the benefits of marriage, while essential to a fulfilling life, do not elevate marriage to the status of a fundamental right rather they make the right to a lasting cohabitational relationship fundamental and that the social and legal institution of marriage has no equal substitute in civil unions. It is pertinent to note that the LGBTQ+ community would get a strong message of
10 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India) [hereinafter ‘Navtej’].
11 Suresh Kumar Koushal & Anr v. Naz Foundation & Ors, (2014) 1 SCC 1 (India).
12 K S Puttaswamy v. Union of India, (2017) 10 SCC 1 (India).
13 Shakti Vahini v. Union of India & Ors. (2018) 7 SCC 192 (India).
14 Chinmayee Jena v. State of Odisha, 2020 (II) ILR-Cut 514 (India).
15 Deepika Singh v. CAT, (2022) SCC OnLine SC 1088 (India).
16 Supriyo, Supra n1.
subjugation if non-heterosexual relationships were restricted to civil unions and were seen as less valuable than partnerships that are adhered to the established heteronormative social order. VIOLATIVE OF CONSTITUTIONAL PROVISIONS: In the Supriyo case 17, the Hon’ble Supreme Court held that the right to marry as a fundamental right is not recognized by the Constitution. Article 19(1)(a) of the Constitution protects a person's expression of sexual orientation. Nevertheless, Article 19(1)(c) states that marriage cannot be linked to the freedom of expression or the right to form unions. The social and legal institution of marriage is not equivalent to civil partnerships.
The LGBTQ+ community would get a strong message of subjugation if non-heterosexual relationships were restricted to civil unions and were seen as less valuable than partnerships that adhered to the established heteronormative social order. According to Articles 14, 15, 19, 21, and 25 of the Constitution, the queer community have the basic right to marry the person of their choice; any exclusion or discrimination, as included in Section 4(c) and/or other provisions of Special Marriage Act, 1954, is ultra vires to the Constitution. It is against Articles 14, 15, 19, 21, and 25 to deny them the opportunity to get married. The right to happiness is protected by Article 21 and involves the fulfilment of a satisfying union with the partner of one's choosing.
Article 14: Article 14 forming a part of Fundamental Rights of under Part III of the Constitution guarantees its citizens the Right to Equality and equal protection under law. The principal principle in determining whether there is any violation of Right to Equality guaranteed by the Constitution, the test of intelligible differentia has to be satisfied. While taking the same-sex marriage and same-sex couples into cognizance, there is no intelligible difference between individuals who participate in “carnal intercourse outside the order of nature” and those who engage in “natural” intercourse. 18 Various legislations of the State such as the Special Marriages Act, 1954; Foreign Marriage Act, 1969 and Adoption Regulation, 2022 are violative of Article 14 of the Constitution because: It denies LGBTQ+ people equal protection under the law. The queer
17 Supriyo, Supra n1.
18 Navtej, Supra n8
people face discrimination and are denied rights under social welfare and benefit laws when same-sex and gender nonconforming marriages are not recognized. It is blatantly arbitrary to exclude LGBTQ+ people from these legislations as there is no legitimate or sensible reason to keep LGBTQ+ partners outside of the marriage institution. There is no discernible, constitutionally-valid distinction between LGBTQ+ and non-LGBTQ+ individuals. In this instance, the parties' sexual orientation and gender identity are the only factors used to classify them, which is against the constitutional ethos. Furthermore, there is no rational nexus with the object sought to be achieved by the laws. Depriving LGBTQ+ people of their fundamental right to marriage does not advance or protect any "legitimate state interest," and the exclusion of LGBTQ+ couples from these has no rational connection to this goal.
Denying LGBTQ+ couples, the right to marry violates Article 14 qua them and their children. Article 15: Sexual orientation and the sex of a partner are two grounds for discrimination against LGBTQ+ people who are excluded from the operation under the Special Marriages Act, 1954. This contravenes the Constitution's Article 15 which prohibits any kind of discrimination on the basis of class, caste, creed, sex etc. A unified, civil, and secular marriage legislation for a couple, whereby one or both of the parties are citizens of India, is the goal of the Foreign Marriage Act, 1969 in adoption of the scheme of the Special Marriages Act, 1954.
However, the law effectively denies same-sex and gender non-conforming couples the ability to marry a partner of their choosing based exclusively on that person's sexual orientation and gender identity, as it only recognizes weddings between opposite sex couples. This is against the Constitution's Article 15. Upholding the heterosexual definition of marriage as the only definition recognized by the Constitution and the law will contribute to the continuation of gender-based stereotypes that the Constitution forbids, which is against Article 15. Article 19: Article 19 forming a part of Fundamental Rights of under Part III of the Constitution guarantees its citizens the Right to freedom of speech and others. The fundamental constitutional provision is violated by the Special Marriages Act, 1954 by exclusion of same-sex couples.
The act of getting married is a socially valuable form of expression and is protected under Article 19(1)(a) of the Constitution. Denying homosexual people, the opportunity to marry is not a reasonable restriction specified under the sub-section (2) of the said provision19. Under Article 19(1)(a) as an expression, Article 19(1)(c) as an association or union, and Article 19(1)(e) as an exercise of the right to dwell and settle in any part of India's territory, the freedom to choose a spouse is protected. 20 The refusal to recognize same-sex marriages by the Special Marriages Act, 1954 hits clause (a) of the Sub-section (1) of the said provision because marriage, gender expression, and sexual orientation are all forms of expression. Article 19(1)(c) of the Constitution guarantees the freedom to form personal relationships.
21 Article 21: Article 21 of the Constitution, the last corner of the golden triangle22, forms a part of Fundamental Rights of under Part III of the Constitution which guarantees its citizens the Right to life and personal liberty subject to the procedure established by law. The Special Marriage Act, 1954 grossly violates the right to dignity and decisional autonomy of LGBTQ+ persons and therefore violates Article 21. Article 21 of the Constitution is violated by the exclusion of same-sex spouses from the Special Marriages Act, 1954 because it violates their right to dignity. Akin to caste-based barriers to temple admission and the unwillingness to provide accommodations for disabilities in public examinations, the barring of same-sex couples from the institution of marriage serves as a public statement about their value as unequal moral members of society.
Everyone has the fundamental right to select a partner under Article 21 of the Constitution. Article 21 of the Constitution guarantees people the right to liberty, personal autonomy, and dignity; denying someone the ability to marry because of their gender identification is a violation of that right. Article 21 also protects the right to adoption and motherhood whose violation is unacceptable before any court of law. REVIEW OF LITERATURE: Utilising various sources of information as citied forthwith here, a detailed and in-depth analysis on the topic of same sex marriages vis-à-vis Right to equality. Since same-sex marriages is a taboo topic in the Indian Society, it was necessary to break the ice of orthodox
19 Union of India v. Naveen Jindal, (2004) 2 SCC 510 (India).
20 Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90 (India).
21 Griswold v. Connecticut, 381 US 479 (1965).
22 Maneka Gandhi v. Union of India, 1978 AIR 597 (India).
ideology and enrich the people about the essential topic of Rights of LGBTQ+ as humans so also same-sex marriages. The essence of the rights of a person to live as a human is often neglected and is given a pass-by and the orthodox ideologies are descended to the later generations leaving little scope for any philosophical advancement and if there is any advancement, it is massively ridiculed by the masses. A proper discussion and decision can be taken on the topic when the topic is known to depth by the people in discussion. With an aim of striking a new charge in the neurons and to smear ahead in the 21st century to dismantle the rigid gender module in the Indian Society, the authors hope to succeed in their exercise.
RESEARCH
METHODOLOGY
This paper is of descriptive nature and the research is based on primary and secondary sources for the deep analysis of the inequality and discrimination encountered by the LGBTQ+ community in the Indian society since time immemorial. Primary sources of information such as the landmark judgements relating to the cause of the queer community and secondary sources of information like articles, journals, and websites are used for the research.
CONCLUSION
The rule of beneficial legislation is very essential to be utilised and effectuated here in this stage of the subject matter. The underlying meaning of the rule is that whenever there are two interpretations to the same legislation or a certain provision, the interpretation which tends to be beneficial to the person shall be taken into consideration discarding the one which falls contrary. It is essential to mention here that the rule of beneficial interpretation of legislation shall only come to play when the enacted legislation with the objective of providing and maintaining the welfare of the society, stays silent or falls short to envision and take in cognizance the impugned action or subject matter. Which in the present matter at hand, perfectly aligns itself into the grooves of the necessary ingredients for the rule.
Almost all the legislations either stay silent or fail to give ample thought towards the LGBTQ+ community while setting out laws for the two prominent genders-male and female. The landmark judgement of the Navtej Singh Johar23 by the Hon’ble Supreme Court had started
23 Navtej, Supra n8.
the conversation of acknowledgement of LGBTQ+ community and their rights as a human being in India. Now, if the chronology of the events is looked upon, the recognition of third gender as transgender followed by decriminalisation of consensual homosexual sex followed by the recognition of right to cohabit even by homosexual couple followed by the right to choose their partner, it makes the most ideal time for the recognition of same-sex couples as married couples. SUGGESTION: The topics related to the gender and sexes have been a social taboo in the country. The children are deterred from discussing these topics at educational institutes thereby failing to understand that it is a very important subject for the evolution of the society in terms of safety and maturity.
The sanctity of the subject will be maintained when it is actually taught by the capable elders and not by peers who have little to no knowledge which is often a bane than a boon. This ignorance of the subject matter has led to this juncture where the law is bound to the social belief and social morality rather than constitutional morality which leads to gross injustice to the queer community in respect of their treatment. Furthermore, the issue can be tackled by substituting the gender-regressive terms like “bride” and “bridegroom” with the gender-neutral terms such as “spouse”, etc in the legislations.
REFERENCES:
1. Chinmayee Jena v. State of Odisha, 2020 (II) ILR-Cut 514 (India).
2. Deepika Singh v. CAT, (2022) SCC OnLine SC 1088 (India).
3. Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 20003), 127.
4. Griswold v. Connecticut, 381 US 479 (1965).
5. K S Puttaswamy v. Union of India, (2017) 10 SCC 1 (India).
6. Maneka Gandhi v. Union of India, 1978 AIR 597 (India).
7. National Legal Services Authority v. Union of India & Ors, (2014) 5 SCC 438 (India).
8. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India).
9. Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90 (India).
10. Shakti Vahini v. Union of India & Ors. (2018) 7 SCC 192 (India).
11. Supriyo v. Union of India, (2023) INSC 920 (India).
12. Suresh Kumar Koushal & Anr v. Naz Foundation & Ors, (2014) 1 SCC 1 (India).
13. Union of India v. Naveen Jindal, (2004) 2 SCC 510 (India).
14. National Academies of Sciences, Engineering, and Medicine (2022), “Measuring sex,
gender identity, and sexual orientation.” available at (last accessed on January 3, 2024).
15 Puja Mondal, “Essay on Marriage
Meaning, Functions and Forms,” available at (last accessed on January 3, 2024).
16. Cambridge Online Dictionary
17. Oxford Online Dictionary