In India, the concept of marriage is considered sacred. Marriage is defined as the union between a male and female which is governed by beliefs and customs. But in India marriage is nowhere defined spite having so many personal laws relating to marriage. Recently, there was an issue regarding the legal validation of same-sex marriage. In India progress has been made regarding the rights of the LGBTQIA community but still, they are not able to get prominent rights like the right to legally marry, adopt, etc.
WHAT IS THE ISSUE?
In November 2022 a PIL has been filed by the two gay couple Supriyo Chakraborty and Abhay Dang for the recognition of same-sex marriage under the Special Marriage Act, of 1954. They have been together for 10 years and married in December 2021 along with the blessings of parents and families. In the petition, they submitted that the special marriage act, of 1954 is ultra vires to the constitution because it discriminates between same-sex couples and opposite-sex couples. It prevents them from getting equal social recognition and position in society. They also contended that the Indian Supreme Court has always upheld the rights of inter-caste and inter-faith couples to marry whomever they want. Our constitutional road should also continue with same-sex marriage. Denying same-sex marriage is also against article 14, 15, and 21 of the constitution. After this petition, the supreme court demands central government present views regarding the legality of same-sex marriage.
The central government has opposed same-sex marriage as it is against the idea of an Indian family i.e., a husband, a wife, and children. The government also argued saying that the supreme court cannot change the policy which is deeply ingrained in our societal and religious values. It further said that in India all personal law and statutory legislations recognize marriage as a union between a “man” and “woman” only. It also cautioned the judiciary not to wrongfully interpret the laws. This can also lead to the alteration of all personal laws in India. It also said that giving recognition to same-sex marriage will cause problems in adoption, maintenance, divorce, and inheritance. The center argued that recognition of only heterosexual marriages is a part of reasonable classification and is not violative of Article 14. It has been done to ensure social stability. In addition, it also argued that it is also not violative of Article 15(1) of the Indian constitution as for falling under this article there should be discrimination solely on the basis of sex. Not granting legal validation to same-sex marriage is not a violation of Article 21 of the constitution as it is not affecting basic livelihood. Now the matter will be heard by a constitutional bench of five judges.
ADVANCEMENT DONE SO FAR FOR LGBTQIA
Our judiciary has always advanced with the advancement of society. Even the most controversial case was tackled in a rational manner by the judiciary. Judiciary always tries to yield the best out of any contentious issue. In the year 2018, the supreme court in the case of Navtej Singh Johar v. Union of India decriminalized sexual intercourse between homosexual couples. After that LGBTQIA community was able to live more peacefully and with less fear. The laws related to homosexuality like Section 377 of the Indian Penal Code were introduced by the colonial government. It was drafted by Thomas Babington Macaulay in the year 1838 in which it was stated that whoever does unnatural sex would be punished. But in the case of Navtej Singh Johar v. Union of India, the supreme court abrogated Section 377 of IPC,1860. After this law people in India have started accepting same-sex couples.
If we look at Hinduism there have always been positive instances regarding the LGBTQIA community. In Hinduism, there have been many stories in which God can be seen changing gender. The Hindu god Shiva is many times represented as Ardhanarisvara which is a unified entity of him along with his consort Parvati. Even in the Mahabharatha, Arjun swears to transform into the Brihannala, a member of a third gender, for a year. The Kama Sutra, an ancient text dealing with all the pleasures of sexuality supports the sexual relationship between same-sex people. It states that their relations also involve trust and love. All these instances show that homosexuality was never a problem in ancient India. the animosity against LGBTQIA started after British rulers came to India.
Marriage between sex people should be devoid of any social stigma. It should not be connoted as a “sacrament” since it can be dissolved. The state should respect and protect the rights of LGBTQIA by preventing any violence against them. Same-sex marriage will also strengthen families and will promote stability. Only 32 countries have legalized same-sex marriage. There is a need for more awareness and progress in promoting same-sex marriage. Education and campaign should be launched to promote more understanding of homosexuality. Recently, Padma Lakshmi became the first transgender lawyer in Kerala. People should move out of radically imbibed social norms and start respecting same-sex marriages.
We have come a long way in considering the rights of the LGBTQIA community. The law cannot mandate whom you marry. Everyone should be given the choice to marry. The state should prevent itself from in intervening the personal rights of the people instead should protect, promote and respect their rights. The legal validation of same-sex marriage can change the social stigma encircling homosexual couples and will improve their position in society.
Author’s Name: Harshita (Army Institute of Law, Mohali)