Same-Sex Marriage in India: Union legislation

Author : Anish Sinha

“To deny people their Human Rights is to challenge their very Humanity”.

-Nelson Mandela

Love is amorphous or maybe in universal form. It can be highly inaccurate to assume that an individual cannot marry somebody just because and on trivial grounds that they are not from the opposite sex. Recently Delhi high court approached the response of the Central Government and the Delhi government on appeal by two same-sex couples pretending legal acknowledgment and validation of their same-sex marriages, contending that the absence of formal and conventional undertaking of their unification under Indian law structure was a violation and infringement of their basic constitutional rights.

A judicial bench of two judges comprising justice Rajiv Sahai Endlaw and justice Asha Menon at Delhi high court discharged the notice and enrooted the guidelines to the Central Government and Delhi governments to file a response and said that this is the last contingency being provided to the litigants to file counter statement affidavits within the span of three weeks for rebuttal seizure so that the judgment can be passed.

The court recorded the case for future proceedings on 25th February, after the Central Government senior counsel submitted the report that they have acknowledged the instructions from concerned official authorities and are in requirement of a few more time to file the response. After hearing the matter and prayer of counsel in detail supreme court gave Delhi government one last attempt to file a response to appeal appealing for the acknowledgement and registration of same-sex marriages under the Hindu Marriage Act, the Special Marriage Act and the Foreign Marriage Act.

This is not the first time when the court is entertaining such a plea, as prior this many appeals have been filed. The very first appeal petition was filed by two mental disorders analyst– Kavita Arora, and Ankita Khanna, who were living together as a couple since eight years before they filled petition but were unable to marry as both were women and same sex marriage is what they were facing. Later many others were filled and this time three different pleas (comprising two couples) were filed on which the supreme court gave an ultimatum.

In 2018 in Navtej Singh Johar vs Union of India, the Supreme Court of India gave a landmark judgment on Indian Penal Code Section 377, decriminalization of the section but still after 2 years LGBTQIA+ community in India is having a tussle with society and government and are fighting for basic human equal rights. The LGBTQ+ community is still struggling for same-sex marriage recognition in India so that they can also love the lifelike else and can procure article 21. After the Navtej Singh johar case judgment, it was revealed that two prominent lawyers Arundhati Katju and Menaka Guruswamy were same-sex couples and we can say that this was something biggest example of stereotype ice breaking on the judicial platform and Message that being a same-sex couple is not a crime what society assume of, and soon after the judgment, they launched the “Marriage Project” a unique initiative and approach to legalize and register same-sex marriage in India.

Till now, there are dramatic increase in public interest litigations (PILs) related to same sex marriage and case are still working on their way via various High Courts across the country attempting to get same sex marriage to be recognized and legalized this form of marriage under Indian law structure.

Contrastingly fact has been discovered, that present time and modern personal Law structure in India comprising the Special Marriage Act, are ‘Hetero’ paramount and so resultantly prohibits ‘Homosexual’ (same sex) marriage, which is comprehensible prejudice and discrimination against the aforesaid section of community, and is clear violation and infringement of Article-15 of the Indian constitution.

There is ample research assignment and efforts are going on over the country targetting to contrast the significance of legalizing ‘Marriage Rights’ to the LGBTQ+ Community (same sex marriage), and the work also list out the identify the best way of granting such matrimony rights. The investigation analysis also proposes the theory that adopting a ‘Civil Partnership’ model is not a fair alternative and also provides several examples to support their postulates. Apart from this the research is also aiming to figure out that, what specific amendments in the Special Marriage Act, 1954 can be done so that the act can legalize matrimonial rights to the aforesaid section of community. But there are also antagonists who don’t support the theory and are against it. Like RSS sahprachar pramukh (joint head of the Rashtriya Swayamsevak Sangh’s (RSS) media and publicity), Sunil Ambekar highlight in his book, “The RSS: Roadmaps for the 21st Century” that the RSS organization after the supreme court judgement, underprop the section 377 decision, but still do not sustenance gay/same sex marriages in India on the grounds that it will lead to apportion society in sake of homosexuality and therefore same should be prohibited.¹ Not only this even the solicitor general of India, Tushar Mehta, made his antipathy resistance to a same-sex marriage recognition under the hindu Marriage Act (1956) appeal very clear, marking that “indian law, indian legal system, indian society, indian values do not recognize” same-sex (LGBTQ Community) marriages and resultantantly offend the contentions of society.

At present keeping aside matrimonial rights there are some couple of legal rights issues to LGBTQ community like say of maintenance, pension, succession, etc, course by couples having their marriage legally recognized by Indian acts but not by LGBTQ+ Community individuals, as they don’t have a centrally legally recognized marriage as per as Indian acts. And nowdays there are many occasions, where LGBTQ+ community individuals have been deprived and suspended from their respective jobs, after their same sex marriage, on the mere grounds that their marriage is not been recognized legally by Indian acts and not being accepted by society, like instance case of Ruth Vanita, Same-Sex marriage, Hindu Traditions and contemporary India, 91 F.R. 47, 52-53 (2020).

The court in Nyantara Ravichandran, Legal Recognition of Same-sex Relationships in India, 5 ILS 95, 100-101 (2014) held that Marriage is not mere a contractual relationship of court attempting to forge the partners aiming to gain legal benefits and legal rights from one another but It has the equally important function of giving both legal and social recognition to a relationship”

In Today’s growing era what exactly evident the heterosexual complexions of these compilation Personal acts and laws?

In Hindu Marriage Act, 1955 constitutes Hindus, Sikhs, Jains, and Buddhists, and squeezes out that a legal marriage gets power to be solemnized between any two Hindus. Further the act specify in it’s section-5 clause (iii) that, “conditions for a Hindu Marriage” mentioning, that the ‘Bride’ and the ‘Bridegroom’ must have attained ‘Eighteen’ and ‘Twenty-one’ years of age respectively, for the purpose of marriage and here, the expression ‘Bride’ and ‘Bridegroom’ evidently highlights a ‘Heterosexual’ marriage which is not processing with same sex.

And in same manner in Muslim act, legal and society acceptey marriages are contemplated explicitly to be a ‘Heterosexual Union’. Since these are not controlled by any statute so therefore they don’t have any peculiar definition of marriage. But here marriages among union are continuously presumed to be an agreement, accompanied with the final goal of ‘procreation’, which contrasts its heterosexual complexions. If to be peculiar here Sharia law don’t even acknowledge and concede same sexx marriages, so here Muslims can’t get in ‘Homosexual relationship as marriage’ and if they go against it then it will be indirectly considered as going in opposition with muslim personal laws, and here attempting to an amend Muslim Personal Laws is once more a Hercules task and is challenging in nature as it is contemplated to be a direct declaration from Allah.

So by these aspects of different conditions of several Personal Laws discussed above, it appears to be strenuous to accord and permit matrimonial rights to the LGBTQ+ communities, as they aren’t getting recognized as ‘Homosexual Marriage’ as aforementioned. On the other hand, according to several advocates scholars, these personal laws should be undergone through several amendments so that some necessary changes can be deployed in the acts. But on political grounds, it’s not being much validated because if we consider the practical history of India and on progressive evidence then it’s not too tough to evidence to figure out that India bears liberalism, generally latitudinarianism, and have a humanistic approach, and high diversity range, point of view of observing the sex including ‘Homosexuality’ alter obvious alarm of attachment to religion and addiction to society plays heavy roles, such articles are being frequently mentioned like for example a highly exemplified article of Manoj Mittal in the Times of India titled “Ancient India didn’t think homosexuality was against nature”. Overall by the influence Indian living society resumes to contemplate it same-sex marriage as ‘immoral’ and ‘against their religious beliefs. Being the Indian marriage and special marriage act 6secular in nature like if we plain read conditions mentioned under Section-4(c) of Indian marriage act, which explicitly mention that, “the ‘male’ and ‘female’ must have attained the age of ‘twenty-one’ and ‘eighteen’ years respectively, for the purpose of marriage. So here, the word mentioned ‘Male’ and ‘Female’, explicitly honors that the Act is ‘Heterosexual’ in character and does not recognize and identify ‘Homosexual’ marriage. On being Highly secular which eventually even allows inter-religious marriages, it still takes shape to be assembled as aligned as ‘Hetero’, so therefore it’s discriminating against ‘Homosexual’ people. Even the mentioning of the words ‘Husband’ and ‘Wife’ in special marriage act 1954 surface difficulty and it’s not an easy task to interpret it concerning the LGBTQ+ Community individuals.

As sad by Pythagoras of Samos “Legislation should be the voice of reasons” the amendment should be aforementioned above can be effectively put forth so that the upliftment can be done in case of homosexual relationships. As there are many possible implications issues of amendments so respectively special committees should be constituted so that the progressions can be made on paper and effective administrative officers teams should comply so that the work in the paper can be implemented and so resultantly the opportunity can be witnessed when imagination merges with expectations of the rights. Bills like Transgender Persons Rights Bill should be upgraded so that they can be more efficient and effective. The working of the National Commission for the LGBTQ+ community should be revised so that should the issues can be vocalized and addressed orderly in courts.