INTRODUCTION
Marriage is one of the deepest and most complex webs of human relations. It is the most essential part of society and the social system as well. Marriage is one of the universal social institutions. It is established by human society to control and regulate the sex life of man. A marriage is a legally recognised union between a man and a woman in which they are united sexually, cooperate economically, and may give birth to, adopt, or rear children. In India, marriage holds great importance not only in societal terms but also for the individual himself. Marriage has serious implications for the rights and responsibilities conferred on spouses towards each other. It includes responsibilities related to inheritance, succession, and other shared rights. In India, couples who are legally recognised as married have such rights known as “Marital Rights.” In the present era, legally, every person has a fundamental right to choose their partner freely, but such a right is confined to the strict binary division of genders, i.e., man and woman, and is not available to third genders, positions outside gender, genderqueer and so on. India does not legally recognise gay marriage, but it is not prohibited.
WHY ARE QUEER PEOPLE GETTING MARRIED IF NOT LEGALLY RECOGNIZED?
In the pre-Independence era, Section 377 of the IPC[1] was introduced to criminalise homosexuality in India. However, as times have changed, Indian Courts have struck down S.377[2] decriminalising homosexuality in India through the Historic Judgement of Navtej Singh Johar v. Union of India[3], in which activists challenged the constitutionality of Section 377 of the IPC[4] in the Supreme Court. The court held the constitutional validity of the section as null and void as it curbs the rights of equality and privacy, including the right to express sexual identity. The section discriminates against people based on their sexual orientation, denying them the right to life. The judgement is a battle won, but the war to get social equality for heterosexual couples remains. This triumph is partially secured and it will gain real meaning only when the community secures civil rights such as the right to marriage, inheritance, guardianship, adoption, etc. and the benefits that arise after marriage.
Same-sex marriage is not legalized, but in present times, it has been observed that a lot of same-sex couples are getting married anyway. Such people are married but not on paper, i.e., on paper they are just friends who live together because same-sex couples cannot register their marriage, meaning same-sex spouses cannot enjoy the marital rights provided to heterosexual couples. Indian society is conservative about same-sex marriages, but a marriage union can’t be denied solely on the basis of sexual orientation. Though India is witnessing a revolution from an orthodox society to a society encouraging fundamental values, the opposition in the name of tradition, culture and religion to liberal legislation has not yet vanished. Marriage in India is a matter of personal laws, deeply enmeshed with the religious beliefs of the people. Therefore, any change in their personal laws may be perceived by the factions of the religious communities as an attack on their beliefs. Further, if Parliament provides marriage rights to the LGBTQ community, it will face a plethora of challenges relating to adoption, maintenance, custody rights, and inheritance. Various countries around the globe have accepted same-sex marriages and have given due recognition to them, but it seems that India it is a long way ahead. Granting due recognition to such marriages will enable the partners to lead a smooth life without obstacles where they are not treated as only roommates but given an equal status similar to heterosexual couples in the eyes of the law. There are several petitions in courts across the country which focus on changing personal laws by giving them a wider interpretation so as to incorporate same-sex marriages. They argue that by refusing to recognise same-sex marriages, they are being denied their fundamental right to equality enshrined in the Indian Constitution.
In the case of Arun Kumar v. The Inspector General of Registration and Ors.[5], the Madras High Court held that under the Hindu Marriage Act, 1955, the term “bride” includes transwomen and people who identify their sexuality as women. This judgement is a great example of the progressive interpretation of laws applied by the courts, denoting the Constitution as a living tree which accommodates and addresses the realities of modern life. Marriage is a sign of love and commitment. If two men or two women want to express their love for each other and celebrate it with society through marriage, it does not violate anyone’s rights or harm society. Since the decriminalisation of Section 377[6], several LGBTQ couples have held weddings or wedding-like ceremonies to make their relationship “official,” albeit unofficially. In the news article published on December 2021[7], is one example among many where same-sex couples get married along with performing traditional wedding ceremonies just like any other Indian wedding.
CONCLUSION
To completely abolish the discrimination faced by same-sex couples, their relationships need to be legally recognized. Simply decriminalising consensual sexual intercourse between people of the same gender will not provide them with the same social equality as heterosexual couples. With the change in time, reproduction is no longer the sole reason why people choose to come together or marry. They do so for a lot of reasons, and one of those is emotional companionship. For many people, it is considered a refuge from the coldness and impersonality of contemporary existence. The demand for legalising same-sex marriage is to grant equal rights to a deprived group and to raise them to an equal pedestal with the general population. Granting such rights will not alter the rights of the general population. An empirical survey of social science research has shown that there is no difference between a heterosexual or a same-sex marriage in their psychological dimensions and legal recognition of same-sex marriage would bestow substantial psychological, social, and health benefits and that same-sex couples and their children.[8] Furthermore, since marriage is an important institution of society since old age, many homosexuals wish to marry because they are a part of this culture and society. They see marriage as the ideal institution to enhance their connection and commitment in a relationship. Further, choosing a marital partner is an important personal decision over which others or the state should have no control. Thus, if two people of the same gender want to make a commitment to marriage, they should be permitted to do so; otherwise, it would result in depriving them of the benefits and dignity that heterosexual couples enjoy. Mere permitting them to marry will not be sufficient; their marriage should be legally recognised on parity with heterosexual marriages.
Author(s) Name: Vidhi Gupta (Panjab University, Chandigarh)
References:
[1]Indian Penal Code 1860, s 377.
[2] Ibid
[3] Navtej Singh Johar v Union of India (2018) SCC 791 (SC).
[4] Indian Penal Code 1860, s 377.
[5] Arun Kumar v Inspector General (2016) SCC OnLine 10486 (Mad).
[6] Indian Penal Code 1860, s 377.
[7] Sanya Jain, ‘Hyderabad Gay Couple Get Married in Front of Family and Friends’ (NDTV, 21 December 2021) <https://www.ndtv.com/offbeat/hyderabad-gay-couple-get-married-in-front-of-family-and-friends-2661078> accessed 12 September 2022
[8] George M. Herek, “Legal Recognition of Same-Sex Unions in United States: A Social Science Perspective” (2006) 61(6) Amer. Psycho. 607-621
