SAME SEX MARRIAGE IN INDIA

SAME SEX MARRIAGE IN INDIA 

INTRODUCTION

Same-sex marriage refers to the union between two men or two women. It is also referred to as homosexual marriage or gay marriage. While same-sex marriage has been governed by law, religion, and tradition in many countries worldwide, the societal and legal reactions have varied significantly, ranging from celebration to criminalization. Although homosexuality has been decriminalized in 133 nations, only 34 countries have legalized same-sex marriage, with Andorra being the most recent. This blog delves into recent developments and various viewpoints, analyzing the complex aspects of same-sex marriage in India, including the legal framework and the obstacles faced by the LGBTQ+ community.

HISTORICAL CONTEXT AND LEGAL ADVANCEMENTS

Ancient texts such as the Rig Veda and records from around 1500 BC depict sexual activities involving women as joyous celebrations within a feminine realm of fertility. There is also historical documentation of homosexual activities during the Muslim Medieval era, including references in the Kamasutra and accounts of young boys being kept by Muslim nawabs and Hindu aristocrats. These examples highlight the presence of homosexuality in these historical contexts, particularly within Tantric tradition relationships. However, the importance of these encounters began to wane with the emergence of Vedic Brahmanism and the subsequent British colonization. During British rule, section 377 of the IPC 1860 was enacted, criminalizing same-sex acts. Even after India achieved independence in 1947, this outdated law persisted, subjecting LGBTQ+ individuals to over a century of discrimination and persecution.

CURRENT SITUATION

In contemporary India, same-sex marriages hold no legal recognition, yet ongoing efforts are being made to validate and legalize them. The late 20th century, however, saw a significant rise in the LGBTQ+ rights movement. The 1990s marked a pivotal moment with the establishment of the AIDS Bhedbhav Virodhi Andolan (ABVA) in Delhi, which became the first LGBTQ+ organization dedicated to fighting against discrimination and violence. In 2001, the Naz Foundation took a courageous step by submitting a Public Interest Litigation (PIL) to the Delhi High Court, challenging the constitutional legitimacy of Section 377. A major turning point occurred in 2009 when the Delhi High Court issued a landmark ruling, declaring Section 377 unconstitutional and effectively decriminalizing homosexuality. Unfortunately, this victory was fleeting, as the Supreme Court overturned the decision in 2013, reinstating Section 377. Nevertheless, 2018 brought a historic change for LGBTQ+ rights in India. A five-judge bench of the Supreme Court decisively ruled Section 377 unconstitutional in the case of Navtej Singh Johar v. Union Of India, rekindling hope and ushering in a new era of freedom. This pivotal ruling represented a significant triumph for LGBTQ+ rights and marked substantial progress towards eliminating discrimination and fostering equality in the country.

SUPPORTING ARGUMENTS FOR SAME-SEX MARRIAGE

Questioning the validity of same-sex marriage based on the unfounded belief that it will result in the extinction of humanity lacks substance. The options of adoption and surrogacy offer practical pathways for queer couples wishing to create their own families. The push for marriage equality is fundamentally rooted in the necessity for legal protections, especially for marginalized individuals who face economic disparities. Labeling it as a matter exclusive to urban elites is a misleading characterization, as demonstrated by the unjust experiences faced by LGBTQIA+ individuals like Leela and Urmila, two police officers who faced suspension and imprisonment simply for their marriage in 1987.

To achieve true equality, it is essential to broaden the scope of the Special Marriage Act to include queer Indians, using inclusive language such as “spouse.” Recognizing cohabitation as a fundamental right, even if it is not directly equated with marriage, holds significant societal importance. While the acceptance of same-sex relationships may seem to challenge established traditional values, it enriches the variety of relationships that flourish within society. The Supreme Court has affirmed the right of same-sex couples to live with dignity and privacy. Additionally, the Supreme Court has highlighted that gender goes beyond simplistic biological definitions, challenging the limitations of a strict binary system. By denying same-sex couples the right to marry, essential legal benefits are unjustly withheld. Marriage embodies not only dignity but also a wide range of rights, serving as a foundation for societal well-being.

ARGUMENTS AGAINST SAME-SEX MARRIAGE

India’s legal structure regarding marriage, inheritance, and adoption differs significantly from many liberal democracies, as it largely depends on religious personal laws. Suggested modifications to the conventional definition of marriage, traditionally viewed as the union of a man and a woman, raise concerns about possible adverse societal effects. The Union government, in its statement to the Supreme Court, argues that acknowledging same-sex marriages could disrupt the current system of personal laws and insists that decisions regarding marriage should be the sole responsibility of Parliament and the executive branch as policy matters. Proponents of preserving the current state contend that children's welfare is best ensured when raised by heterosexual parents, suggesting that the legalization of same-sex marriages could endanger their well-being. Additionally, legalizing same-sex marriages may bring about intricate legal challenges, especially concerning adoption and child custody, which require thorough examination. Considering the limited acceptance of same-sex marriage within Indian society, the risk of social unrest and the disruption of established social norms and values must be taken into account.

OVERCOMING CHALLENGES: A FUTURE ANCHORED IN HOPE AND PROGRESS

Legal Challenges: LGBTQ+ activists and organizations have persistently campaigned against the prejudicial Section 377 of the Indian Penal Code, which criminalized homosexuality. Their steadfast dedication reached a pivotal point in 2018 when the Supreme Court annulled this law, marking a significant triumph for LGBTQ+ rights and effectively decriminalizing homosexuality in India.

Advocacy and Awareness: LGBTQ+ organizations have passionately taken up the cause, diligently advocating for enhanced rights and comprehensive protections for the LGBTQ+ community. Through rallies, protests, and campaigns, they have highlighted the difficulties encountered by LGBTQ+ individuals, conveying a strong message of equality and promoting societal acceptance. These collective initiatives aim to cultivate a society that acknowledges and respects diverse sexual orientations, fostering empathy and understanding for the LGBTQIA+ community.

Policy and Legal Reforms: Organizations such as the Naz Foundation play an essential role in pushing for policy and legal reforms that safeguard the rights of LGBTQ+ individuals. They work relentlessly to create robust laws against discrimination, inclusive policies, and legal recognition of same-sex relationships, including marriage. Their commitment extends to amending existing laws, like the Special Marriage Act, to allow same-sex couples to marry and access equal rights and benefits.

Counselling and Support: Acknowledging the distinct challenges faced by the LGBTQ+ community, numerous organizations offer specialized counselling and support services. These vital resources provide a refuge where individuals can confront issues such as discrimination, bullying, and mental health challenges, offering guidance and comfort.

Community Building: LGBTQ+ organizations prioritize the creation of a strong and inclusive community. They accomplish this by hosting various events, social gatherings, and support groups. These efforts help individuals feel a sense of belonging, build resilience, and forge close connections within the LGBTQ+ community. Ultimately, their initiatives foster a vibrant and safe environment where everyone can flourish.

CONCLUSION

The evolving story of same-sex marriage in India stands as a powerful testament to the extraordinary journey towards social equality and human rights. It represents the victory of love, resilience, and the unyielding spirit of the LGBTQ+ community along with their supporters. The landmark Supreme Court decision in 2018, which decriminalized homosexuality, signified a historic shift, sparking a wave of change. In spite of obstacles, dedicated advocates, organizations, and individuals have relentlessly worked towards the acknowledgment and acceptance of same-sex marriages. Nevertheless, the quest for complete equality continues to be a persistent challenge that requires ongoing conversation, education, and compassion to eliminate discrimination and promote true inclusivity. As we imagine a world where love is limitless, let us move forward with steadfast resolve, breaking down barriers, and building a society where same-sex couples are fully embraced, their love celebrated, and their marriages legally recognized.

Closing Credits

Author: Neha Kalyan

"The views expressed are personal. This article is intended for educational purposes

and public discourse. Feedback and constructive criticism are welcome!"