By- Manya Srivastav (LL.M. Candidate) & Dr. Aishwarya Pandey (Assistant Professor Of Law), Amity University, Lucknow
ABSTRACT
“Love has no gender. It has no labels. Love is simply love.” -Manuel Miranda
Love transcends gender, and it is unjust to restrict marriage based on gender identity. As the world evolves, it is essential to reconsider outdated norms and embrace inclusivity. Same-sex marriage allows individuals to marry a partner of the same gender, and this idea should no longer be dismissed or ignored. In the past, people were stigmatized for their gender identity, but in today’s progressive society, every individual deserves respect and acceptance regardless of their gender or sexual orientation.
It is important to acknowledge that gender is not limited to a binary concept; there are multiple gender identities. Society must adopt the principle of “live and let live,” ensuring that everyone feels welcomed, valued and accepted. Happiness and harmony can be achieved when individuals are allowed to love and marry freely.
In India, same-sex marriage has not yet gained legal recognition. While some nations maintain strict laws against it despite having open-minded citizens, India presents a unique challenge where both the legal framework and societal attitudes remain conservative. Indian society requires time and education to understand that same-sex relationships are not a foreign influence but rather a natural aspect of human existence. Raising awareness and fostering acceptance are crucial in eliminating discrimination and ensuring that same-sex couples are not subject to injustice.
Judiciary scratched Section 377, which condemns homosexuality, same-sex marriage remains a contentious issue. Social resistance continues to hinder progress, demonstrating that legal reforms alone are insufficient without a shift in public perception. True change begins with societal acceptance, which can be achieved through education and open dialogue.
India is on a path of transformation, but there is still significant progress to be made regarding LGBTQ+ rights. The denial of same-sex marriage is a violation of fundamental human rights, as it prevents individuals from marrying the person they love. The LGBTQ+ community has long fought for dignity and equality, and while strides have been made, there remains a long journey ahead.
This paper explores the significance of legalizing same-sex marriage in India and the challenges faced by the judiciary in addressing this issue. It also highlights the societal and legal obstacles that must be overcome to ensure equal rights for all, regardless of sexual orientation or gender identity.
Keywords: same-sex marriage, LGBTQ+ rights, homosexuality, India, Indian judiciary, legal recognition.
INTRODUCTION
The phrase “Marriages are made in Heaven” seems to be a very innocuous statement, but the use of the word “heaven” implies that marriage is perceived as a religious ceremony rather than a legal bond between two individuals choosing to spend their lives together. This perspective frames marriage through a religious lens, where unions that do not conform to traditional beliefs—such as same-gotra or same-sex marriages—are often deemed unacceptable. As a result, such relationships may be met with social ostracization or, in extreme cases, violence, all in the name of preserving religious sanctity. Same-sex marriages, in particular, are often regarded as immoral or a societal threat because marriage is traditionally seen as a sacred institution and such relationships are considered immoral and social evil.
Same-sex marriage, also known as gay marriage, refers to the union of two individuals of the same gender. As of November 2023, 33 countries have legally recognized and conducted same-sex marriages, either nationwide or in specific regions. Estonia is the most recent addition to this list, with its legalization of same-sex marriage set to take effect on January 1, 2024. Despite significant progress in LGBTQ+ rights worldwide, same-sex marriages remain unrecognized and unprotected under Indian law. This is largely due to deeply rooted cultural norms and traditions that uphold heterosexual unions as the societal standard. While India is a democratic nation committed to justice and equality for all, the legal and social acceptance of same-sex marriage continues to be a complex and debated issue.
The right to marry is considered an essential aspect of the right to life under Article 21 of the Indian Constitution. This principle was reinforced in the significant case of Lata Singh v. State of Uttar Pradesh (2006), where the Supreme Court of India affirmed an individual’s freedom to marry a person of their choice, recognizing it as a fundamental right.
In India, same-sex relationships were not legally recognized until 2018. The Supreme Court, in the landmark case of Navtej Singh Johar v. Union of India, decriminalized homosexuality by partially striking down Section 377 of the Indian Penal Code. However, same-sex marriages are still not legally recognized, meaning couples do not have access to spousal rights such as adoption, inheritance, and other legal benefits.
Legalizing same-sex marriages in India has been a widely debated issue within the legal community. According to the Oxford Dictionary, marriage is defined as a legal relationship between two individuals. Similarly, Article 21 of the Indian Constitution implicitly upholds the right to marry a person of one’s choice. Notably, legal definitions and interpretations specify gender by using terms such as ‘man’ and ‘woman,’ which challenges the traditional perception of marriage as a union between a male and a female. Consequently, the concept of marriage in contemporary society remains fluid and subject to evolving interpretations.
The Indian society is a developing one, just like the economy. For the longest time, “coming out” as LGBTQIA+ has been a subject hushed upon, for the majority still considers it a taboo. While there is so much resistance and tension in the society to recognise & realise the respective right to autonomy and dignity, there also exists a beacon of hope at given instances.
The Indian Judiciary has time and again upheld through its progressive judgements,its intent towards social justice and fostering inclusivity. Social norms and long-standing beliefs, ingrained over centuries, did not undergo an instant transformation when the nation took control of its own destiny at independence, nor when the Constitution came into effect in 1950. “Similarly, the stigma against the members of the LGBTQIA+ community did not end with a stroke of the pen when the Court decriminalized consensual homosexual sexual activity.”
The denial of legality to same-sex marriage is a major setback not only for the LGBTQ+ community but also for the world’s largest democracy, which prides itself on providing equal rights to its minorities, also in consideration with the doctrine of constitutional morality.The decriminalization of homosexuality in Navtej Singh Joharprovided a beacon of hope for queer couples; however, the Hon’ble Supreme Court’s recently ruled against legalising same-sex marriage in India, leaving the fate of the practice in the hands of the legislature. A plethora of issues are now before the legislature, making the fight for equality laborious and complicated.
The central question remains: Is this truly a fight for equal rights, or is it a matter of lacking legal standing? Is the debate genuinely about legislative intent and the separation of powers, or is it merely a means to advance the prevailing regime’s ideology? Only time will reveal the answer.
OBJECTIVES OF THE STUDY
- To analyse the status of same sex marriage.
- To identify the crises faced by queer couples.
- To trace the history of same sex marriage laws.
- To investigate the economic and social impacts of legalizing same-sex marriage, including its effects on adoption rights, healthcare, and tax policies.
- To figure out the way forward.
RESEARCH METHODOLOGY
The proposed study is descriptive in nature. The data are mainly connected from secondary sources like- websites, magazines, newspapers, books, research papers, thesis, and journals.
RELEVANCE OF THE STUDY
This paper explores the imperative need for legalizing same-sex marriage in India, a diverse and dynamic nation with a rich tapestry of cultures and traditions. While there have been notable advancements in LGBTQ+ rights worldwide, India continues to grapple with the absence of formal legal recognition for same-sex unions. By delving into the legal, social, and ethical aspects, this study highlights the strong rationale supporting the legalization of same-sex marriage. Moreover, the paper highlights the necessity of bridging the divide between legal acknowledgment and societal acceptance. It underscores the significance of education, public awareness initiatives, and active community involvement in promoting a more inclusive society.
A COSMOPOLITAN OVERVIEW OF HOMOSEXUALITY AND THEIR ACCEPTABILITY
• LGBTIQ+
LGBTIQ is an acronym for lesbian, gay, bisexual, transgender, intersex and queer. The plus sign represents people with diverse sexual orientation, gender identity, gender expression and sex characteristics who identify using other terms.
• LESBIAN
Lesbian refers to woman who develops romantic, emotional and/or physical attraction with a woman.
• GAY
Men whose enduring romantic, emotional and/or physical attraction is to men; also, women who are attracted to other women.
• BISEXUAL
Person who has the capacity for romantic, emotional and/or physical attraction to people of more than one gender.
• TRANS/TRANSGENDER
The term transgender is used by some people whose gender identity differs from what is typically associated with the sex they were assigned at birth. Trans, transgender and non-binary are umbrella terms representing a variety of words that describe an internal sense of gender that differs from the sex assigned at birth and/or the gender attributed to the individual by society, whether that individual identifies as a man, a woman, or in transition, simply “trans” or “transgender”, with another gender or with no gender.
• INTERSEX
Intersex are the people born with sex characteristics that do not fit typical definitions of male and female bodies. Intersex is an umbrella term used to describe a wide range of natural bodily variations. There are more than 40 intersex variations; experts estimate between 0.5 per cent and 1.7 per cent of the population is born with intersex traits.
• QUEER
Traditionally a negative term, it has been reclaimed by some people and is considered inclusive of a wide range of diverse sexual orientations, gender identities and expressions. It may be used as an umbrella term for people with diverse sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC), or as an alternative to the phrase “people with diverse SOGIESC” or the acronym LGBT. Queer is used by many people who feel they do not conform to a given society’s economic, social and political norms based on their sexual orientation, gender identity and gender expression.
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