Same Sex Marriage And Its Road Towards Legal Recognition
Author: LawSphereX
Category: Family & Personal Law
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SAME SEX MARRIAGE AND ITS ROAD TOWARDS LEGAL
RECOGNITION
Kavya Bhatnagar, National Law University, Odisha
INTRODUCTION
Even after major legal advancements, including the decriminalization of homosexuality in the landmark 2018 Supreme Court ruling striking off Section 377 of the Indian Penal Code, Indian law does not yet recognize same-sex unions. This article examines same-sex marriage's current situation in India, the legal disputes around it, and the implications of recent court rulings. An issue that has been in debate is the legalization of same-sex marriages, and this forms a part of broader discourses on attitudes around in society towards LGBTQ+ rights and family structures.
1 This paper investigates the probable influence that the legal recognition of same -sex marriage may have on tradition family structures and dynamics in Indian society by posing the research question: In what ways would the legalization of same-sex marriage influence the traditional family structures and dynamics in Indian society? India has yet to legalise same-sex marriages, while the definition of marriage is still defined as union between a man and a woman. While the Supreme Court ruling in 2018 declared that consensual same-sex relationships are no longer crimes was a landmark victory for LGBTQ+ rights advocates and allies, such liberalization came not one step further into marriage rights. Indian laws historically have strongly defined marriage as a union between a man and a woman.
Even in civil marriages, which are governed by the Special Marriage Act of 1954 in India, same-sex unions are not recognized. By denying legal recognition to same-sex marriages, LGBTQ+ couples are deprived of all rights and privileges that marriage yields, such as inheritance, adoption, or tax benefits2.
1 ‘“Wedding of Two Souls”: Same-Sex Marriage and Hindu Traditions on JSTOR’
accessed 16 September 2024. 2 Erez Aloni, ‘Incrementalism, Civil Unions, and the Possibility of Predicting Legal Recognition of Same-Sex Marriage’ (2010) 18 Duke Journal of Gender Law & Policy 105.
The five-judge Constitution Bench of the Supreme Court, in its decision on October 2023, ruled out the legalization of same-sex marriage and stated that the right to marry is merely a statutory right under the Indian Constitution, not a fundamental one. Further, it highlighted that any change regarding the law on marriage must come from Parliament and not through judicial intervention. This has disappointed all the LGBTQ+ advocates arguing that it continues to entrench discrimination against same -sex couples. Debates on same-sex marriage in India are far more entitled to claim the absence of factual grounds and fail to consider realities of LGBTQIA+ people and partners. For instance, one reason is that same-sex marriage would become a threat to human existence, a thought banishing from the view alternative routes for queer couples to seek parenthood: adoption and surrogacy.
Adoption becomes an alternative to form the many gay couples who aspire to build a family; it enables them, instead of posing a challenge to the social setup, to provide healthy homes for children. 3 Furthermore, the statement that this marriage equality movement is all about the issue of the elites of urban cities is misleading. The pressure for legal compliance of lesbian marriages derives primarily from the urgent need for legal protection and rights, especially individuals deprived monetarily suffering from discrimination and deprivation of necessary benefits. One such example, by way of illustration, is the case of Leela and Urmila, two policewomen who, in 1987, were suspended from service for marrying each other. Their saga exemplifies the urgent necessity for laws granting legitimate status and protection on same-sex relationships.
In Islam homosexuality is generally considered as a sinful act and is liable to different punishments. This view is largely based on the interpretation of the Quran itself; it rejects homosexual acts. The most common references are the stories of the people of Lot who were punished by God for their sexual immorality. Different schools of Islamic jurisprudence hold different opinions on the gravity of punishment for such acts. The four Sunni schools are found in agreement that such acts are grave crimes that attract punishments ranging from flogging to execution. 4 There is, however, an important nuance in the practice of these laws. There is credible historical evidence to suggest that while there was condemnation of homosexuality, at certain periods and times within the context of Islamic society, same-sex relationships were
3 William N Jr Eskridge, ‘Comparative Law and the Same-Sex Marriage Debate
A Step-by-Step Approach Toward State Recognition Essay’ (1999) 31 McGeorge Law Review 641.
4 Ahmad Murtala, ‘SAME-SEX MARRIAGE AN ISLAMIC STANDPOINT’.
tolerated or even glorified in literary forms. Overall, whereas Islam's historical law outright does not prohibit homosexuality as sinful and to be punished, their enforcement and normative attitudes vary from culture to culture and history to history in the Muslim world. Traditionally, the Christian world labels homosexuality sinful, following various interpretations regarding some passages in the Bible. Most of the denominations, like the Roman Catholic Church and the Eastern Orthodox Church, officially declared homosexual acts immoral. The most common scriptures referred to in this case regarding same-sex relations stated that they were considered abominable also categorized homosexual behaviour as sinful. Views regarding homosexuality, however, have been highly diverse among Christian denominations and among Christians themselves.
While some conservative groups continue to define homosexual acts as sinful and therefore incompatible with the teachings of Christianity, other mainline Protestant denominations have started coming to accept LGBTQ+ people and even support same-sex unions. This acceptance is sometimes based on a belief that the biblical texts which condemn homosexuality do not speak to the modern concept of sexual orientation or to consensual same-sex relationships. Hinduism has a rather complex, ambiguous view towards homosexuality as there is neither absolute stance that fully condemns nor permits homosexuality. Many of the Hindu scriptures do not actually state something about homosexuality but instead narrate the general principles such as ahimsa (non-harm) and dharma (righteousness).
Manu smriti is one of those texts which prohibits sexual acts causing harm but does not create any division between heterosexual and homosexual acts. In addition, the presence of gender-fluid deities in Hindu mythology and stories especially in Mahabharat that involve same-sex interactions could indicate earlier recognition of other types of sexual orientations. Some scriptures, even from the Hindu system, like the Kama Sutra, mention homosexual acts without indicating any kind of objection or averting expression towards them. In fact, homosexual relationships could be pursued and enjoyed5. Indeed, this view is reinforced by organizations like the Hindu American Foundation, claiming that Hinduism does not offer spiritual grounds to exclude LGBTQ+ people. But in various communities, some conservative interpretations are prevalent, believing that
5 ‘Same-Sex Weddings, Hindu Traditions and Modern India - Ruth Vanita, 2009’
accessed 16 September 2024. homosexuality is against the natural order as it serves no purpose of procreation within marriage. The most debated amendment within marriage equality debates has been the inclusion of queer Indians under the Special Marriage Act 1957 (SMA). The argument again goes that genderneutral language should be used within the SMA but instead use "spouse" to replace "husband" and "wife" so that same-sex couples may marry without any right to a legal status. This approach can be reflected as when the SMA enabled inter-religious marriages between people of different religious backgrounds; therefore, such moves were in tandem with the past legislative changes because the same can prove possible through the law courts' already given legal framework.
The Chief Justice of India has acknowledged cohabitation as a fundamental right: it is not the cohabiting couples' burden to convince the government of the social implications of their relations. When some justices suggested the use of the term "contract" or "partnership" instead of "marriage," this too recognizes that same-sex relationships must be recognized through law so that the persons involved can access the rights and benefits connected with them. Further, there has been an increase in awareness within Indian society about the same -sex couples' potential to provide loving and stable homes to children. The Supreme Court even says that a same-sex couple could just as easily provide a nurturing home as heterosexual parents.
Yet, under existing laws, same-sex couples are denied access to surrogacy and assisted reproductive technology-the extent of the reach of assisted reproductive technology-preventing them from building a family altogether. India is rich and culturally diverse, but such deep-rooted social norms face challenges toward the acceptance of same-sex relationships. Legal recognition of same-sex marriage would enrich the diversity by recognizing multiple structures of a family rather than weakening the traditional values. The judgment by the Supreme Court in the Navtej Singh Johar vs. Union of India focused on human dignity and personal liberties and emphasized the dignity of the LGBTQIA+ people to lead their lives with dignity and without the fear of being discriminated against.
Indeed, the Supreme Court has found the complexity of gender identity, saying that biological gender cannot be absolute, and gender comes in more than just physical attributes. The acknowledgment supports arguments for broader rights within LGBTQIA+ communities. So far, LGBTQ people are deprived of a great number of legal rights and benefits that institutionally accompany marriage-like tax benefits, medical rights, inheritance rights, and the right to adopt; because no matter how much it certainly is not a "right to love," they cannot enter a marriage legally. It deprives them not only of individual dignity but also of a "bouquet of rights" that is all-important for well-being and security. No legal recognition of same-sex marriage in India: Most importantly, this is a huge constitutional concern as well. Several rights under it are at stake which include.
Article 14 (Equality Before the Law): Article 14 covers equality before the law and equal protection of the laws. The legal non-recognition of marriage for same-sex couples can be treated as a violation of this principle because it classifies the same couples differently. It, as a point of law, finds that same-sex couples are not equally entitled to legal rights and protection under the laws. Article 15 (Prohibition of Discrimination): Article 15 prohibits discrimination based on religion, race, caste, sex, or place of birth. The inability to legally marry because one's sexual orientation may be seen as discrimination based on sexual orientation, thus infringing on this article. Article 21 Right to Life and Personal Liberty: Article 21 pertains to the right to life and personal liberty, which means rights to live with dignity and make personal choices.
The right being a denial of same-sex couples to get married and avail themselves of associated legal benefits is violative of this right, concerning dignity and personal autonomy. Article 19 Freedom of Speech and Expression While this is essentially about freedom of speech and expression, it may also be used to argue that the non-recognition of same-sex marriages somehow confines people from expressing their identity and personal choices in relationships. Article 39A Equal Justice and Free Legal Aid It provides equal justice and free legal aid. There being no legal recognition of same-sex marriages, the access to justice and remedies in law makes it somewhat challenging for same-sex couples to seek, thus further making it difficult to exploit their rights fully.
Article 32 of Right to Constitutional Remedies: It is vested with the right to approach the Supreme Court to enforce rights under the Constitution. The debates and legal challenges that are currently taking place in the courts to legalize same-sex marriage prove that battle for constitutional remedies and protection of rights among the LGBTQ+ community. These constitutional articles intersect to point out broader issues at stake in withholding legal recognition to the same-sex marriages in India, that's issues of equality and dignity and access to justice for LGBTQ+ individuals. This stigma around LGBTQ+ greatly weighs in a culture that condones sexual violence, such as rape. Many of this group who are abused, both as children and adults, face very discouraging challenges in reporting these incidents to the authorities.
This is because they tend to fear discrimination and the lack of adequate legal protection for them. Rape culture further makes things complicated, especially during formative years when people are trying to find out what they do. This environment creates an identity crisis within themselves, and so survivors find it even harder to come forward or seek help about the issues. Statistics are grim about the issue in question; one in eight lesbian women and nearly half of bisexual women have been raped in their lifetime. The victim-blaming narratives made the matter worse, so that its survivors felt guilt and responsibility for what was done to them.
This phenomenon is especially strong in close - knit LGBTQ+ communities, where those who had survived might fear not being believed or not wanting to report violence from fellow community members based on a concern that it would inevitably feed into negative stereotypes. Further to that, the culturally competent services not offered leave out the LGBTQ+ survivors out. Most service providers are not trained to meet their respective needs scares them from seeking services. Resulting in several sexual violence incidents remaining unreported and continue in a circle of silence and stigma. Such an approach should go beyond the work of just reforming a legal system, education, and awareness within the LGBTQ+ community concerning consent and sexual violence as well as support services tailored to their distinct challenges that survivors face in the LGBTQ+ community.
If all these things can be done, at last, we may break that stigmatized circle of rape and create safer space for everyone irrespective of what sexual orientation they are. Case laws Landmark judicial decisions have profoundly influenced the ever-changing landscape of rights for LGBTQ+ Indians. Among the earliest of such landmark cases was that challenging Section 377 of the Indian Penal Code, which criminalized consensual same - sex relations and upheld the provisions of the constitution of India. This was, however, overruled by Naz Foundation v. Government of NCT of Delhi (2009) as the court noticed Section 377 to be violative of the fundamental rights of the LGBTQ+ community, which was passed against them. It was once again overturned in Suresh Kumar Koushal v.
Naz Foundation (2013) by the Supreme Court when the court restored original Section 377-major disappointment for the LGBTQ+ activists. Decriminalizing same-sex relations: With the judgment handed down in
2018 by the Supreme Court in Navtej Singh Johar v. Union of India 6it vindicated the basic
personal rights to equality and privacy. Cases like The Indian Young Lawyers Association v. State of Kerala in 2018, although dealing with their primary theme of gender equality in religious space, will resonate stronger aspects regarding individual rights and nondiscrimination. Like these, there come: S. Sushma v. Union of India, 2021 -transgender rights issues and at the same time underlines continuities in problems that LGBTQ+ persons continue to face; Supriyo Chakraborty v. Union of India, 2021-it brings the issue of same-sex marriage and questions the legal structure and asks for the recognition of same-sex union also and thereby keeps the ongoing debate regarding LGBTQ+ rights and legal recognition in India.
If same-sex marriage is legalized in India, it will be more massive and have the most serious consequences for traditional structures and dynamics of family and sets up a new course for societal norms and values. Effects on Traditional Family Arrangements Making Marriage Legal: Same-sex marriage would redefine what it meant to be married only between a man and a woman. This redefinition opens doors for a more exceptional understanding of families and further diverse relationships other than the norm of heterosexuality. Marriage is what people generally consider a core component of family. Such a change might bring about an inclusive view on familial ties. Enhanced Visibility and Acceptance: Legal recognition would increase the visibility of LGBTQ+ relationships, thereby making them more accepted by society.
This would reduce the stigma and discrimination against LGBTQ+ persons, making the situation of various family structures to be normalized and respected as well. Strengthening family rights Same-sex marriage automatically confers rights and protection on LGBTQ+ couples, equating them to their opposite-sex counterparts in terms of inheritance, adoption, and health benefits; in turn, this ensures stability in these families and affirms the legitimacy of same-sex marriages in society. Potential Backlash: Legalization could cause a backlash from the more conservative forces in the society that view it as undermining their traditional values. Such social opposition could lead to social turmoil or further persecution of the LGBTQ+ group, which could make it even harder to change the societal mindset toward acceptance.
6 ‘Search Result’ accessed 16 September 2024.
Intergenerational Discussion: The legal recognition of homosexuality marriage could promote intergenerational discussion about sexual orientation and family lives, ensuring mutual understanding between the aging and the younger generations. Such a discussion may often be conflictive enough to challenge the most deeply entrenched beliefs and nurture progressive attitudes toward family structures. Impact on Children's Right Legalizing the same-sex marriage will also influence the debate over children's rights within the family of the LGBTQ+, such as the right to adoption. Then the families would receive a broader message that love, and commitment defeat traditional gender roles rather than biological identities.
In conclusion, legalization of same-sex marriage in India will reform traditional family structures to become more inclusive; increase legal protection for couples; and pave the way for societal acceptance. However, it is a double-edged sword that poses challenges that must be carefully addressed to ensure that progress does not come at the expense of social harmony.