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SAME SEX MARRIAGE IN INDIA

Dated: July 18, 2020

SAME SEX MARRIAGE IN INDIA

A statement that is all the time associated with the term marriage is “Marriages are made in heaven”. A marriage is a union of two people, or a legal contract between two individuals that sets up legal rights commitments between them. It is basically a foundation wherein interpersonal relationships, including sexual relations between the companions are recognised and legitimised. When two individual choose to spend the remainder of their lives together, they frequently legitimize their communion by going into marriage. In many countries, legal acknowledgement is only given to the marriages two opposite sex couples, banishing same sex marriages. Homosexuality is still considered as a taboo in many parts of the country. Nevertheless, many nations have realized the changes in their enactments as a result they have brought changes in their legislations. Through these changes they are recognising an individuals freedom and opportunity in choosing his/her partner, by giving legitimate status to same sex marriages.

In India marriage is considered as a holy ceremony by hindus, and relationship between two individuals of similar sex has been viewed as immoral and inappropriate. Since marriage is seen from the religious point of view, a gay marriage is presumed to be unholy and against the God. It is assumed by many Indians that the idea of same sex unions has been brought by the western nations while on the other hand some people are of the opinion that the concept of homosexuality is not the concept devised by the western nations. Historical literary demonstrates that homosexuality has been pervasive over the Indian subcontinent since the beginning.

Section 377 of Indian Penal Code, 1860 talks about unnatural offences and criminalised sexual activity against the order of nature. This section criminalised consensual homosexual activities too. Nonetheless, the Delhi High Court in the landmark Naz Foundation case passed a milestone judgement, decriminalizing gay intercourse between consenting grown ups individuals. Delhi High Court in this case was of the view that section 377 of IPC was proclaimed to violate the fundamental right to life and liberty right to equality as ensured by the Constitution of India. The court held that section 377 was against Article 14 and 15 of the Constitution, as it discriminated gay people and made a class, separating them on the basis of sex. The court held that word ‘sex’ in Article 15 not only means biological sex but also the sexual orientation of a person. This case was later overturned in Suresh Kumar Koushal and Supreme Court was of the opinion that the job of transforming gthe law was that of the law making body i.e., Legislature, and that the Judiciary could not strike down certain provisions of the law. The bench however only commented only on the capacity of High Court to strike down the law, they did not vitiate the opinion of Delhi High Court that section 377 was unconstitutional.

The present laws with respect to same sex marriage in India are drafted in such a way does not expressly prohibit same sex marriage. For instance when Hindu Marriage Act defines the individuals who are qualified to get married under the act, it does not set out any set provision that states that only individuals of opposite sex can get married to one another. The Special Marriage Act, 1954 also takes into consideration that two individuals from different religion, caste can get married and it does not talk not about any prohibited relationships. As a result India does not have any enactments that legalize same se marriage. Nonetheless, Naz Foundation judgement is an advance step towards changing the impression of same sex union in India.

Every individual has the right to carry on with their lives the way they want and chose what give them joy, and what does not. Article 21 of the Constitution of India entitles each and every native with the right to life and personal liberty. These privileges also include the right to privacy and dignity. The most disturbing thing is that gay people face monstrous embarrassment and separation by the general public and society, without any fault of theirs. It is not their fault that they were brought into the world that way. They are ostracised from the society moment their identity is revealed. This forces numerous such couples to conceal their sexual orientations, causing frustrations, disappointment and self-hatred among many. A satisfactory personal life is as much a privilege of gay couples as of others. We need to understand that gays or lesbians are not outsiders rather they are one among us just having diverse passionate and sexual needs.

Things got changed in September 2018, when Supreme Court in the landmark case of Navtej Singh Johar vs Union of India passed the verdict that gay sex is no longer a criminal offence. Court ruled that “history owes an apology” to LGBT people for ostracising them and state had no right to curb the private lives of the LGBT community members and that the refusal  of the right to sexual orientation was equivalent to denying the right to privacy. Court contemplated that discrimination on the basis of sexual orientation was violative of the right to equality, that sexual orientation frames an intrinsic part of self identity and denying this would be violative of the right to life, and fundamental rights can’t be denied on the ground that they just affect a little segment of the population.

Through this judgement Court tried their level best to give equal status to the homosexuals and eliminate all kinds of stigma attached with them. This ruling from the top court is a huge victory for India’s LGBT community.