IS SAME SEX MARRIAGE LEGAL OR NOT IN INDIA? - (Article)

Marriage is a defined tradition which recognizes the relationship between two people irrespective of religion, race, color, sex. The legal recognition of marriage will help the couples to hold special power and identity in the world they live. When we look upon closely the customs and traditions of India, marriage got an important role in it. India is a country which colorfully decorated its states, districts and cities with religious and traditional practices which are prevailing all over the world. Every religion has its own mythology when it comes to marriage. Such type of marriages got its recognition by the Indian law. Some of the personal laws are

·         Hindu Marriage Act,1955

·         Indian Christian Marriage Act, 1889

·         Indian Muslim Marriage which is based on Muslim civil codes.

There is also an act for the people who wish to marry from different religion or caste. The act is called as the Special Marriage Act, 1954. Special Marriage Act accept people from any religion all over the world. Even a foreigner who wishes to marry an Indian can marry under this act. We must be glad to enjoy the privileges that are provided by the law. But nowhere in the acts of the Indian law neither legalize nor non legalize the marriage of the LGBT community (Lesbian, Gay, Bisexual, transgender).

DECRIMINILAISATION OF SECTION 377 – THE VICTORY OF THE    MINORTITY:

Section 377 criminalizes the consensual carnal intercourse between man, woman or animal which is against the order of nature which indirectly targets the LGBT community. Such criminalization violates article 14, 15, 19 and 21 of the citizens in India. A gay is a man who is sexually attracted towards a man both physically and mentally. A lesbian is a woman who is sexually attracted towards a woman both physically and mentally. Bisexual attracts towards both men and women sexually. Transgender are men who likes to transform themselves as a woman. In 2018 the Hon’ble Supreme court decriminalized section 377 in the case Navtej Singh Johar vs Union of India.[1] In the judgement it was provided that violating the rights of LGBTQ based on sex and gender is an offence. In National Legal Services Authorities vs Union of India[2] the court held that the word ‘sex’ includes sexual orientation. Sexual orientation refers to an individual’s physical romantic or emotion attraction towards the other[3]. Researches made on same sex relationship proves that an individual can be attracted towards any individual irrespective of gender. But the landmark judgement is silent about the same sex marriage. They are given the rights to live together. Any mischievous activities between the couples in the relationship have rights to remedy under various acts.

SAME SEX MARRIAGE:

As mentioned above same sex marriage is not legalized but it is not considered as an offence too. This type of situation is a bit difficult for the minority community people. A legal recognition will give them an identity. There are cases filed by gays and lesbians to legalize their marriages. Recently a gay couple in Thrisur, Kerala filed a petition to legalize their marriage. The famous lesbian couple Menaka Guruswamy and Arundathi Kaju also fought for the decriminalization of section 377. After the decriminalization, they now step forwarded to legalize their marriages or to register a civil union. The same sex marriage is one of the debatable topics in India. We should also take in note the Hon’ble Madras High Court’s verdict in the case of Arun kumar vs Inspector general of registration[4] which explicitly provided that not only women but also transgender women come under ‘bride’ in the Hindu Marriage Act,1955. This case proved that India is country which is not gender biased and provides equality to each and everyone in the country.

CUSTOMS AND TRADITIONS:

The objections against the same sex marriage is an anticipated one in country like India. Indians till now strongly believe in customs and traditions as it was written by our ancestors a long back. It is hard for people to accept same sex marriage as they feel that different caste and  different religion marriage as an offense. External always express internal. And to experience empires in our  outer life one need to develop one’s inner first. The country is running towards an impeccable development. This development needs some change where people need to accept an individual’s identity and support him in the best way possible. Moreover infringing in others rights and liberties is an offence. Customs and traditions are taken from the ancient period that is the reason it holds strong power within it. History shows that there were gay and lesbian couples who were brutally punished and killed. The famous writer Oscar Wilde was a gay, he was imprisoned for having sex with a man and was sentenced to death. Those were days in India where transgender women were treated only as sexual workers and beggars. As time passed by now we can see them in all the fields. People who consider same sex marriage as an offence should change their perspective and must start to accept the people irrespective of their gender and sex. A positive thinking can bring a change in the society and the Hon’ble court with no further delay provides legal recognition to the LGBT community.

THE RIGHT TO CHOOSE A PARTNER :

The freedom of choosing a partner is rightly stated under article 21 of the Indian constitution. In the case of Shafin Jahan vs Ashokan K.M [5] the court held that if a person has come of age and has ability to think can choose his life partner. Choosing the partner is an individual’s liberty. Interfering in their personal liberty lead to violation of article 21 of the constitution.

AMENDMENT TO THE SPECIAL MARRIAGE ACT :

Directions must be issued to the Union Government to   introduce necessary amendments to the Special Marriage Act for the solemnization of the marriage of transgender people and same sex marriages. Only by those amendments the discrimination which is faced by the minorities will be vanished. The change in law gives people a different outlook eventually people will start following it and also LGBT people get a legal status in the society.

[1] AIR 2018 SCC 4321

[2] AIR 2014 SC 1863

[3] NALSA VS UNION OF INDIA, SUPRA

[4] WP(MD) No. 4125 of 2019, dated 22-04-2019 

[5] (2018) 7 SCC 192

 

-R. Ramya

School of Excellence in Law.

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