LEGALITY OF SAME-SEX MARRIAGES IN INDIA: CONTEMPORARY OVERVIEW

Article written by Vibhor Maloo

Introduction

In 2018, Section 377 of the Indian Penal Code was declared unconstitutional, in the landmark case of ‘Navtej Singh Johar and Ors. v. Union of India’. The section mostly affected same-sex partnerships, even though it also makes all anal and oral intercourse illegal, including sex between couples of opposing sexes. And, India had become one of the 28 Asian nations that have legalised homosexuality and accepted the rights of the LGBT community. This was one of the most remarkable steps towards legitimising homosexuality and from here, arose the current hot topic of debate: What is the legal scenario of same sex marriages? It has been a keen interest for many legal scholars and thinkers in the field of law and judiciary. In this assignment, we are going to discuss in detail the relevant cases, provisions and statutes and discuss the topic in specific context of Hindu Marriage Act, as well.

Current legal scenario of same-sex marriages

The topic of same-sex marriage, also known as gay marriage, is a highly contested issue worldwide. It is widely a proposition for debate on several legislation around the globe. However, we will discuss just the Indian context, as of now.

While not currently legal in India, there have been legal advancements in recent years that will be explored in this article. Currently, Indian law does not allow same-sex marriage under any legislation and the parliament nor the legislature, are silent on the particularities of the matter. However, the honourable courts have tried to interpret and decide through judicial activism the legality of these types of marriages.

One incredibly notable case is ‘Navtej Singh Johar & Ors. v. Union of India’, where the Supreme Court of India invalidated Section 377 of the Indian Penal Code, which previously criminalised consensual homosexual acts between adults. Although this decision did not legalise same-sex marriage explicitly, it was viewed as a significant win for LGBTQ+ rights in India. This has acted in a great way as a flag-bearer for further questions in the homosexuality realm of the law.

Now, in the context of the Hindu Marriage Act, particularly, the remarkable case law, ‘Supriya Chakraborty & Abhay Dang v. Union of India’ can be cited. It is another relevant case that sought recognition of same-sex marriage, specifically under the Hindu Marriage Act, but the petition is still in its nascent stage and the Supreme Court seeks to decide on the matter through a constitutional bench. Despite the progress made in the Navtej Singh Johar case, same-sex marriage is not yet recognised under Hindu law in India due to cultural and legal conservatism. Discrimination and harassment against the LGBTQ+ community continue to be prevalent, in relation to the legality of their legal rights and privileges, in comparison to the other genders.

In India, same-sex marriage is currently not legal, as Section 377 of the Indian Penal Code criminalised homosexuality. However, in 2018, the Supreme Court of India decriminalised homosexuality and overturned Section 377, which was seen as a major victory for LGBTQ+ activists in the country.

Despite this development, the legal recognition of same-sex marriage in India is still a contentious issue. Cultural and religious conservatism are a major factor in the resistance to legalising same-sex marriage, as many Indians hold traditional beliefs that see marriage as a union between a man and a woman. There is also a lack of political will to change the status quo, with politicians fearing backlash from conservative voters and a lack of consensus within political parties.

However, there are compelling arguments in favour of legalising same-sex marriage, such as the issue of human rights. Denying the right to marry on the basis of sexual orientation violates basic human rights, including equality and non-discrimination. Legal recognition of same-sex marriage would provide LGBTQ+ individuals with legal protections and access to benefits like inheritance rights, healthcare, and adoption. It would also promote a more inclusive and tolerant society, benefiting all members of Indian society.

Why the government has not yet legalised same-sex marriages? A lacunae?

The matter of legalising same-sex marriage in India is a challenging one that has faced opposition from various segments of society, including the government. A comprehensive analysis of the reasons behind the government’s reluctance to legalise same-sex marriages in India is provided below. Firstly, cultural and religious conservatism is deeply ingrained in Indian society, and many view same-sex relationships as immoral or against the natural order of things. Religious institutions, such as influential Hindu and Muslim organisations, have also opposed the idea of legalising same-sex marriages.

Secondly, despite the decriminalisation of homosexuality by the Supreme Court of India in 2018, many politicians remain hesitant to support same-sex marriages due to the fear of backlash from conservative voters. Furthermore, there is no consensus within political parties on the issue, and some politicians see it as too controversial to take a stance on, while others view it as a low priority for the government.

Thirdly, there is still a lack of awareness and education about LGBTQ+ rights in India, which has made it difficult for advocates of same-sex marriages to push for legal recognition. Many people in India do not comprehend the complexities of sexuality and gender identity, and there is still a stigma attached to homosexuality.

Fourthly, legal complexities exist in the legalisation of same-sex marriages in India, as Indian laws do not recognise same-sex relationships, and there is no specific law that governs the legal recognition of such unions. Additionally, there are concerns related to inheritance rights, adoption, and other legal benefits that need to be addressed before same-sex marriages can be legalised.

Lastly, conservative groups, including some religious organisations, have been vocal in their opposition to legalising same-sex marriages in India. These groups have significant political influence and can pressure the government to maintain the status quo.

Conclusion and personal perspective on the topic

After a thorough understanding and research on the above topic in consideration, we can conclude that, while same-sex marriage is not currently legal in India, legal developments in recent years offer hope for a more favourable legal landscape in the future. The Navtej Singh Johar case represents a significant milestone for LGBTQ+ rights in India, but there is still a long way to go. In conclusion, legalising same-sex marriages in India are a complicated matter that involves cultural, political, legal, and social factors.

While the decriminalisation of homosexuality was a significant step forward, the government’s reluctance to legalise same-sex marriages reflects the deep-seated conservatism that exists in Indian society. It is essential to increase education and awareness about LGBTQ+ rights to change attitudes towards same-sex relationships, and legal recognition of same-sex marriages is necessary to safeguard the human rights of LGBTQ+ individuals. In summary, although legalising same-sex marriage in India faces challenges, there are strong reasons to support it, including protecting human rights and promoting a more accepting and open society. It is crucial for lawmakers and society to work towards greater acceptance and understanding of LGBTQ+ rights in India.