IS INDIA READY TO LEGALIZE SAME-SEX MARRIAGE?

Reading time : 12 minutes

ABSTRACT

This is a topic which is in news currently, people have started talking about sexuality more openly, it will take around a decade for the society to change drastically but even Rome was not built in a day. But what we as a responsible citizen need to do is, we need to be more welcoming when it comes to the LGBTQ community. We need to understand that they are also humans like us , just because they are born differently doesn’t mean that they aren’t humans. Our behavior towards them can definitely bring change in the society.

In the first half of the research paper we talked about what actually marriage is, how the laws are different for hindu marriages and the muslim marriages. It is believed that marriages can take place between a man and a woman only.  And legal validity is also given to the  opposite sex marriages only. the marriages between individuals from same sex is not legally valid yet. even the central government is not in favour to legalize the same sex marriages rather they are silent about it. India is a home to different religions, different customs that’s why there is no uniformity when it comes to the civil code. Irrespective of one’s religion, one has to marry an individual from opposite gender , marriages between people from same sex is not accepted in India socially as well as legally.

WHAT ACTUALLY SAME-SEX MARRIAGE IS?

Marriage in India is something that is linked with spirituality and emotions,  Rather it is a socially and legally sanctioned union between two individuals who are tying a knot with each other.  Marriage usually takes place between a man and a woman and it is regulated by laws , customs and belief. It is believed in India that marriage is not only a union between two individuals but also a union between their respective families. In the ancient India, legal sanction to the marriages was not in the picture, rather it was a societal concept , legal sanction to the marriages came into picture after a long while.  Performing the rituals was the only necessity to get married.

Rituals and customs performed by Hindus and Muslims are different. If we talk about Muslims, they treat marriages as a social contract between two individuals,

And the law that recognizes such marriage  is Shariat Law, their  rules, regulations and customs are totally different from that of Hindus when it comes to marriages.

It is believed that marriages can take place between a man and a woman only.  And legal validity is also given to the  opposite sex marriages only. the marriages between individuals from same sex is not legally valid yet. even the central government is not in favour to legalize the same sex marriages rather they are silent about it. India is a home to different religions, different customs that’s why there is no uniformity when it comes to the civil code. Irrespective of one’s religion, one has to marry an individual from opposite gender , marriages between people from same sex is not accepted in India socially as well as legally. And there is a long fight when it comes to legalizing it for the betterment of the LGBTQ community. And this is high time , society should  think about humanity keeping the parochial mindset aside. Because it will be recognized by law only when society will start accepting such marriages.

NAVTEJ SINGH JOHAR VS UNION OF INDIA

Discussing this case is pivotal since the fight against the system for  LGBTQ community  cannot be explained without this case law. It was the first step towards a legal recognition of same-sex relationships, earlier the same sex relationship was a crime. Now the question that comes to our minds is that who criminalized Homosexuality ?

It was criminalized by the britishers, by the colonial rulers since we follow Indian Penal Code which was framed by the british colonial rulers in 19th century. The base of whole IPC is the then British  Law . it was framed with a lot of complications and article 377 is one of them. Section 377 was framed according to the buggery Act which was a law of the sixteenth century. “This act defined homosexual acts, sodomy, sexual activities involving animals as unnatural offences. The Parliament of England passed this Act in 1533 under the kingship of King Henry VII. This act defined buggery as an act which is against the will of God. Under this act, unnatural offences were punishable by death. The very first law commission of India which was under Thomas Macaulay brought this law in India and drafted it as sec-377 of Indian Penal Code of 1860.” [1]

Homosexuality has never been a crime and it was never punishable under law in Ancient India, it was considered a crime by the british colonial ruler , that too after 19th century.  There are many instances as well to prove the same ; Khajuraho Temple being one of them, the temple is known for its ancient wall paintings, these paintings depict the cultural and social life of Ancient India and it has been believed that wall paintings are the mirror of how society was formed, how humans were evolved. The temple was constructed in 10th  century,  and some of these sculputures also show homosexuality which proves that it was not a crime, even in Arthashastra and Manusmriti, there are instances which prove that homosexuality has never been a crime in Ancient India. It was criminalized by the british colonial rulers.

JUDGEMENT

The apex court stated that section 377 is violates article 14,15.19 and 21 which are Fundamental Rights, and according to Article 13 , any Law in derogation with Fundamental Rights shall  be void. It also declared that section  377 will govern only non-consensual relationships with minors and any adults.

The fundamental target behind holding section 377 is to shield ladies and kids from being manhandled and harrases via carnal intercourse however consensual animalistic intercourse which is performed by the LGBT people group is neither harmful to youngsters nor ladies. Also, non-consensual demonstrations have effectively been alluded to as an offense under segment 375 of IPC which suggests that part 377 is repetitive and discriminative towards one segment of the general public and is accordingly violative of Article 14 of the Indian Constitution delivering it unlawful.

Our Constitution being liberal, it is absurd that privilege of decision will be outright. Hence a few limitations have been forced on the head of decision. Anyway right of picking an accomplice for close relations is totally a matter of individual decision which can’t be confined. Though, area 377 of the Indian Punitive Code confines the privilege of LGBT people group of picking an accomplice for sexual matters and is thusly unreasonable and discretionary.

Now homosexuality has been decimalized but  still society needs to be more open-minded to accept such relationships. Because without societal acceptance the LGBT would find it a bit difficult to reside in the society with their partners, we need to be more welcoming when it comes to the LGBTQ community.  But according to some surveys, the life of homosexual couples are much better and simpler than earlier. The society needs some more time to accept and acknowledge these changes. And the  day is not far when society will be welcoming the homosexuality.

NATIONS WHICH  HAVE ACCEPTED SAME-SEX MARRIAGE

There are around 29  countries in the  world which have accepted same sex marriage. 29 out of total 195 countries have allowed gay marriages. Apart from that, The Netherlands became the country to legalize same sex marriage and four couples got married in 2001 in The Netherlands. It was unanimously accepted by the society. According to me, the society should be progressive , people should be open to changes that the government or judiciary makes.

The countries that which have legalix=zed same sex marriage are as follows:-

“Argentina, Australia, Austria, Belgium, Brazil, Canada, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States of America and Uruguay.”[2]

However , there are few restrictions in these 29 countries even though they recognize homosexuality. In some countries like Taiwan, homosexuality is allowed only for Taiwanese citizens, foreign nationals cannot do same-sex marriage unless they want to marry a Taiwanese citizen. This is discriminatory but then we can not ignore the  fact that atleast they have legalized homosexuality unlike other countries around the globe.

“20 countries have legalized same-sex marriage nationally through legislation. Among these, Australia and Ireland legalized same-sex marriage through legislation only after nation-wide votes.

7 countries have legalized same-sex marriage nationally through court decisions — Austria, Brazil, Colombia, Costa Rica, Ecuador, Mexico, South Africa, Taiwan and the United States of America.

2 countries, South Africa and Taiwan, enacted legislation legalizing same-sex marriage after courts mandated them to do so.”[3]

Chile, Philippines, Thailand and Switzerland  are few countries that where hrc global is tracking the people who are in support of the equality in marriages in 2020.

LOOPHOLES IN THE PUSH FOR SAME-SEX MARRIAGES

After going through the media coverage and articles on legalizing homosexuality. I found out that there are only two perspectives that are prominent in the Indian society and which is being discussed. First, same-sex couples believe that legalizing such marriages will carve a path for equality in the society for the LGTBQA+ community. Second, the people with parochial mindest believe that allowing such marriages will somehow contradict the societal values and culture of the Nation. They have also opposed the public interest litigations that are filed in the apex court for legalizing it in India. Sometimes, in the race of being progressive we ignore certain implications that can arise after legalizing it, we cannot ignore the fact that if  a law benefits the nation it can harm too,  everything has its own advantages and disadvantages. The road to legalizing it in India is very long after all Rome was not built in a day. 

Gender neutrality can sometimes be anti-women. gender neutrality, similar as numerous apparently reformist goals, isn’t actually too evenhanded. It places ladies in places of extraordinary weakness in a society where the scales are now terribly tipped for cis-het men. The motivation behind terms like ‘spouse,’ ‘husband,’ ‘man,’ and ‘lady’ in marriage laws (and a couple of different laws on sexual violence and badgering also) is to secure a socially-underestimated segment of people.

At the point when a lady faces cozy accomplice brutality, it is her entitlement to document a body of evidence against her better half (or parents in law) under the domestic violence act . This restrictiveness guarantees that ladies have protects and gauges set up, if there should arise an occurrence of treachery.

In the event that the law were impartial, as eccentric rights activists, yet additionally a few women’s activists are proposing, the lady’s significant other would have the option to document a counter-case to control the circumstance and misdirect the legitimate procedures. Making these laws impartial will additionally convolute a generally debilitating way to equity for ladies and leaves space for the culprit to defraud himself. A law isn’t intended to look great on paper; it is intended to be put to utilize. Anyway, when pushing so difficult to change such a law that has been organized in a particularly conscious, functional way and battled for, by the ladies before us, we should ask ourselves: Who will profit by this? Who will control this? Also, above all, who will be adversely affected by this?

This is an expression that I’ve been hearing time and over again on the news and in different media stages however it simply doesn’t agree with me. As far as I might be concerned, achieving change and acknowledgment includes two things: legitimate/underlying change just as friendly change. Decriminalizing homosexuality can be viewed as a type of primary change. Nonetheless, after 2018, there have been not really any friendly change estimates taken to guarantee that the strange local area is completely incorporated into Indian culture. The legitimate subsequent step for the community would include anti-discrimination projects to shield them from the explicit brutality, provocation and harassmanet they presently face in both instructive foundations just as work environments. The consistent subsequent stage would include making governmental policy regarding minorities in society and booking for the local area. The intelligent subsequent stage would include investigating our present sex education curriculum and filling in the colossal, perilous holes in our present framework (remembering data and conversations for assent, sex, sexuality, sexual wellbeing and safe sex). The legitimate following stage would include social consideration, cover homes, upliftment. Tragically, none of these actions have been taken which implies that a couple of favored queer individuals, who are now socially acknowledged, have figured out how to completely appreciate the decriminalization of homosexuality. What’s more, in the event that you consider the queer rights movement, marriage was never the plan of the community all in all. It is just a specific segment—high society and upper rank queer individuals—that is requesting the enactment of same-sex marriage. Additionally, while the overall disposition of the local area has a standing of being comprehensive of different underestimated individuals, truly, it isn’t remarkable to discover very casteist, Islamophobic, and authoritarian individuals locally. Large numbers of these individuals have positively no expectation of incorporating underestimated LGBTQ folx in their battle.

Take attorneys Arundhati Katju and Menaka Guruswamy’s speech at Oxford university for instance. They utilize this expression on various occasions in their contention for marriage uniformity and the standard Indian media considers these two upper position, special ladies as the banner individuals of the battle for marriage balance. This is regardless of the way that they have scarcely at any point opened up these conversations to minimized individuals from the local area. We need to zero in on making Indian culture an agreeable spot for all LGBTQIA+ individuals with the goal that they don’t hesitate to communicate explicitly and sincerely. Saying ‘marriage is the legitimate subsequent stage’ is stacked with qualification and it is just being said in light of the fact that it’s the consistent subsequent stage for special individuals.

CONCLUSION

India is a democratic country and being a democratic country we have some fundamental rights that nobody can steal from us. Each one of us is equal before law, whether you are heterosexual or homosexual your right to life, right to privacy and right to equality is ensured. But where there is a Law there are exceptions too.

Homosexuality is allowed but same sex marriage isn’t , the LGBTQA+ people think that they are being discriminated, they should be treated equally like any other heterosexual couple in the society, but to bring change in the legislation, we need to change our mindsets first, we are the one’s who are responsible for the happenings of the society, we are  the one’s who should ensure that justice is served, irrespective of one’s gender everyone should be treated equally.  After Navtej singh Johar case, section 377 was struck down, being a same-sex couple is no more a criminal offence, they can live a better life after decriminalization of section 377. 

Now homosexuality has been decrimalised but  still society needs to be more open-minded to accept such relationships. Because without societal acceptance the LGBT would find it a bit difficult to reside in the society with their partners, we need to be more welcoming when it comes to the LGBTQ community.  But according to some surveys, the life of homosexual couples are much better and simpler than earlier. The society needs some more time to accept and acknowledge these changes. And the  day is not far when society will be welcoming the homosexuality.

REFERENCE

1. (Marriage Equality Around the World)

2. (mirzawardahbeg)

3. Wikipedia

4. economic times

5. India Today

6.  https://feminisminindia.com/2020/12/01/same-sex-marriages-legislation-india/


[1] (mirzawardahbeg) (mirzawardahbeg)

[2] (Marriage Equality Around the World)

[3] (Marriage Equality Around the World)

Author: ANANYA JHA

Editor: Kanishka VaishSenior Editor, LexLife India.

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