In India, homosexuality is looked down upon by society. Society fails to perceive homosexuality as normal nature of human sexual behaviour. In India, the case Navtej Singh johar V. Union of India changed the legal position of homosexuality as a crime, however, no right to marriage with same-sex was recognized in this case. Indian law is silent on the point that whether same-sex marriages are legal or illegal and there is no law governing same-sex marriage in India.
In India, marriages have a strong religious and cultural significance as well as social importance. Marriage is considered to be a sacrament and the religious ceremonies are an essential part of the marriage. Law states that the groom should have attained the age of twenty-one and the bride to be the age of eighteen. Hindu personal law does not reveal a sexuality bias in its conditions of marriage provision in the Hindi Marriage Act, 1955. Therefore, homosexual marriages are not technically barred by law in the Hindu law context. However, society’s viewpoint is entirely a separate subject- matter.
The Arthashastra, an ancient Indian treatise on statecraft, mentions a wide variety of non-vaginal sexual practices which, whether performed with a man or a woman, were sought to be punished with the lowest grade of fine. While homosexual intercourse was not sanctioned, it was treated as a very minor offence, and several kinds of heterosexual intercourse were punished more severely. The Manusmriti, which lists the oldest codes of conduct that were proposed to be followed by a Hindu, does include mention of homosexual practices, but only as something to be regulated.
The famous temple of Khajuraho in Chatarpaur, district, Madhya Pradesh, India consists of various scriptures which show carving of homosexual activity, Mahabharata and Ramayana, Sushrita Samhita and Charaka Samhita also mention homosexuality. This shows homosexuality is present since time immemorial. Homosexual relationship
It is not a universal rule that a man is attracted towards woman or women are attracted to men only. Same-sex marriage i.e. marriage between two men or between two women the term same-sex relationship is not purely related to the sexual preference of the participants.
In India, there are approximate 10 crores homosexuals. This number is gradually increasing with more and more people coming out. This shows that homosexual relationships are not rare in India and therefore, there is a need for legal recognition of such marriages in order to enable the couples to start a family together.
Homosexuality from a societal perspective
Marrying within same – sex, although not a crime in terms of any statute is thought to be a crime by the society, the point of view of the society in reference to same-sex marriages is still orthodox. The society views such couples as in a very stereotypical manner and ostracizes them. The society needs to be aware that homosexuals are not criminals, rather they are co-citizens who have an equal right to equality, freedom of self-determination, freedom of expression, civil liberty and all like rights under the Constitution of India.
Non-recognition of same-sex marriage violates the principles of equality, individual dignity and personal autonomy, which is enshrined under Part III of the Constitution of India.
Navtej Singh Johar V. Union of India. In Navtej Singh Johar filed a writ petition on 26th April 2016, along with the LGBT community, challenging the constitutional validity of Section 377 of IPC which criminalizes homosexual relationships between same-sex adults in private. In the prayer, the petitioners prayed for declaration of the right to sexuality, right to sexual autonomy and right to choice of the sexual partner to be a part of the right to life in article 21 of Indian constitution and to declare Section 377 of the Indian Penal Code as unconstitutional.
In Navtej Singh Johar it was stated that Section 377 was violating Article 14 of the constitution i.e. right to equality before the law because it was clear that it did not define “carnal intercourse against the order of nature”.
It is difficult to differentiate between natural and unnatural consensual sex. The Petitioner, in this case, contended that Section 377 also violated Article 15 of the Indian Constitution i.e. Right to Protection from Discrimination since it discriminated on the basis of the sex or sexual preference., Section 377 had a “clod effect” on Article 19 Freedom of Expression and it refused the right to express through speech one’s sexual identity and choice of sexual partner, and also violated the right to privacy of LGBT community. It caused fear that they would be humiliated or avoided because of “a certain choice or manner of living.”
The court felt that there are many aspects to be considered concerning the section 377 resolution of the order of nature, social morality, rights of a section of people, constitutional foundations, and consenting adults. The judges deemed the case fit to be considered to a larger bench. Upon hearing the parties and examining the various aspects, the five-judge of apex court gave its judgment in favour of the petitioners and held that Section 377 was unconstitutional as far as it criminalized consensual sex between two adults of same or different sex. Every person has the right to live with dignity and choose their partner for marriage.
But the law is silent on the legal position of same-sex marriages in India. Therefore, there is a need for a proper legal framework to regulate same-sex marriage.
“Same-sex marriage has not created problems for religious institutions; religious institutions have created problems for same-sex marriage.
Importance of same-sex marriages
Love comes in all forms. It would be wrong to say that a person cannot marry someone just because they are not from the opposite sex. The world is evolving more than ever and we need to keep up with times. People can finally be themselves and own their individuality only if society accepts them for who they are. Just because someone does not love a person from the opposite sex, it does make them wrong. We can love anyone we want.
In addition, it is better to spend your whole life with someone that you love and are naturally attracted to, rather than marrying someone of the opposite sex just for the sake of society. Otherwise, neither of the spouses can stay happy. Marriage is not a commitment of one year or two years, it is for the whole of your life and therefore, needs to be considered very seriously. Same-sex marriages give the other people hope that they can also have a future in addition it paves a brighter path for the LGBTQ community. One deserves to be able to marry whomever they wish irrespective of gender or sex.
Homosexual marriages should be legalized
There should be provisions in the constitution for same-sex marriages and separate act for same-sex marriages in India. Although the current – Hindu Marriage Act, 1955 technically allows same-sex marriages by not using gender in its sections relating to marriage, provisions of divorce and other matrimonial matters are gendered and therefore cannot be successfully implemented in cases of same-sex marriages. Further, family laws of other religions are not gender-neutral, hence separate legislation or an amendment of existing legislation is required to legalize same-sex marriages.
Marriage lies at the intersection of society and the law. Societal traditions are crystallized into rules relating to marriage by law.
Law takes the most important role in every place of society. If there is the law for same-sex marriage, it will be umbrella protection for the LGBT community. Therefore, it is time for the legislature, executive, judiciary and society at large to change and understand that they cannot demean the existence of people being sexually inclined towards their own sex. They also need to acknowledge that legalizing same-sex marriages in India.
Same-Sex Marriages under the Special Marriages Act
An option which ought not to raise religious hackles is to seek an amendment to the Special Marriage Act, 1954 (‘SMA’) to permit same-sex marriages. The SMA is secular legislation that facilitates marriages between people of different religions or and those who do not wish to be bound by their personal laws.
Lawyer Couple who want to legalize same-sex weddings – Menaka Guruswamy said they are supporting “Marriage Project.”, a legal project which aims to make same-sex marriages constitutionally right. According to Guruswamy, gay or straight, Hindu or Muslim, upper caste or lower caste, male or female, all they want is to lead a happy life with their partner and for their relationship to be recognized by society & by the law.
Menaka Guruswamy said that “In India, inter-caste couples from long time they face social sham even though such relationships are constitutionally legal. We are not a country that recognizes as a girlfriend or boyfriend or dating. We are a country “their love is sanctified by the sacrament of marriage”
Arundhati Katju and Menaka Guruswamy, This power home-sexual couple has filed a case to legally recognize same-sex marriages in India. Same-sex marriage is legal in 30 countries across the globe as of May 2020. While many see the legalization of same-sex marriages as the next obvious step, others from within the community view this move as exclusive.
As of now, twenty-eight countries across the world have legalized same-sex marriages and some Western countries accept civil unions between same-sex couples. Indians are not ignorant about homosexual events around the world and its legalization, but still, we need a proper legal framework about same-sex marriages in India. Homosexuality is not against the Indian society and culture, it has always existed and with much lesser prosecution. Hence, all that is required is to recognize what is and has been existing.