RIGHT OF SAME-SEX MARRIAGE
Marriage- An institution in India
Marriage in India is not only treated as coming together of two individuals but of two families. Marriage is treated as the most sacred event in one’s life. But there is no definition wide enough to cover the range of human marriage. It has been given various definitions and clarifications. Some of them are as per the following:
In his "History of Human Marriage," Edward Westermarck defines marriage as “the more or less durable connection between male and female lasting beyond the mere act of propagation till after the birth of offspring.”[i]
According to Malinowski, marriage is a “contract for the production and maintenance of children.”[ii]
According to Lundberg, marriage consists of the "rules and regulations which define the rights, duties, and privileges of husband and wife, concerning each other."[iii]
Marriage is both universal and focal. All over our nation, in each area, each social class, each race, and ethnicity, each religion, individuals get married.
Now the question that arises iswhether only heterosexual individuals should be allowed to get the taste of happiness derived from the institution of marriage? Only heterosexuals have the right to be married to the person they love? Shouldn’t every person irrespective of his sexual orientation have the right to marry the person of his/ her own choice? All these questions raised are valid in the present scenario and require answering.
Are homosexual relationships unnatural?
The biggest primary argument raised while discussing the topic of homosexuality is that it's unnatural, but this argument has been set aside by various ruling in the due course of time. In one of her interviews with The Caravan, Anjali Gopalan said that the term 'order of nature' is a very Judeo-Christian term as it means having sexual intercourse only for procreation. She further said, "If that is true, then I’d say everybody has been doing an unnatural act.”[iv] In the year 1811 Netherland decriminalized homosexual acts. In 1822 Dominican Republic decriminalized homosexual activities. In 1967, England decriminalized homosexual acts but only for men. In the case of Justice K.S. Pettaway (Retd.) and Anr. v. Union of India and Ors[v] it was held that “the sexual orientation of a person is an indispensable trait of privacy”. Equity demands that the sexual orientation of every person in the public eye must be secured on an even stage. The surety of constitutional rights should not depend upon whether their use will be accepted by majority opinion. Thus, it indicates that no person should be discriminated against based upon their sexual orientation. In 2009, in the famous case of Naz foundation Vs. Government of NCT of Delhi and Ors. homosexuality was decriminalized for the first time in any part of India.[vi] Later in the case of Navtej Singh Johar and Ors. Vs. Union of India (UOI) Ministry of Law and Justice Secretary[vii] a landmark judgment was given which decriminalizes homosexual sexual activities in India. Our Constitution is liberal, it is absurd that the right of choice will be total. Along these lines, a few limitations have been forced on the head of the decision. Anyway, the right of picking a partner for private relations is a matter of individual decision that can't be limited. Open order, decency, and morality are the grounds which can force sensible limitation on the central right of articulation. Any demonstration done in fondness by the LGBT community in broad daylight doesn't upset the open request or virtues until it is sufficiently decent and isn't obscene. The landmark judgment not only changed the life of many individuals belonging to the LGBTQ community in India but also gave them the power to come out to society. The decriminalization of section 377 helped many people understand the pain their homosexual fellows were going through and it even helped many homosexual individuals to come out and declare their sexuality. There is no official record on the LGBT+ population in India, but the government estimates that there are 2.5 million gay people[viii] and this landmark judgment brings happiness in the life of each one of them.
Right to choose a person to marry
Every individual after attaining a certain age has the right to choose the person whom he/she wants to marry. Marriage in India is not only treated as the union of two individuals but as a union of two families and for the success of every marriage, a person must choose his/ her life partner without any coercion and undue influence. The main case regarding this issue is Shakti Vahini vs. Union of India (UOI) and Ors[ix], wherein it was held that the option to choose a life partner is a fundamental right. This option to pick a real-life partner willingly is announced as an essential right since it is a characteristic piece of Article 19 and 21 of the Constitution of India. The court further advanced that once the fundamental rights are innate in an individual, then no one can scamper such right by depending on any kind of philosophy, moral or social, or self-proclaimed elevation.
Homosexual person’s right to marry
In a case popularly known as Hadiya marriage case[x], Justice Chandrachud said that the strength of the Constitution lies in its acceptance of the plurality and diversity of the country’s culture[xi]. In 2001 Netherlands became the first country ever to legalize homosexual marriage and provide homosexuals with their right to get married. While addressing the newlyweds Mayor Job Cohen stated that there are two reasons to rejoice and celebrate: first that they are celebrating their marriage and second that they are also celebrating their right to be married.[xii] In the year 2015, there were 748 marriages between two women and 647 between two men. Later in 2014, the United Kingdom passed the Marriage Act 2013, which allowed same-sex couples to marry and change their legal gender without having to end their marriage[xiii]. This shows that many countries have acknowledged homosexual individual’s right to get married to the person of his/her desires.
Impact of Decriminalization of Homosexuality
By legalizing homosexuality, the viewpoint of society was also able to change. After decriminalization of homosexuality, there has been a rapid increase in social approval of homosexual relationship, the number of people who thought that homosexual relationship was not wrong at all has seen a steep increase a lot from 17% in 1983 to 64% in 2016. The case of Naz foundation Vs. Government of NCT of Delhi and Ors. greatly impacted our society. There was an increase in the number of people who accepted homosexuality not as a disease but as a person's choice. According to the World Value Survey, there has been a huge fall in the share of people who believed "homosexuality is never justifiable" from 89% in 1990 to 24% in 2014. The ruling provided homosexual people the right to live a life with dignity and also increased social and family acceptance. But still, after all this, six out of 10 youth still view homosexuality as wrong. As of now, 29 countries in the world have legalized homosexual marriages and have provided homosexual individuals with the right to marry. This formation of laws in different countries is an example of countries understanding the rights and liberties of individuals and to eradicate discrimination based on sexual orientation.
Laws are made according to the need of society, and these needs keep on changing over time, so, the laws also need to change to accommodate these changing needs. What is legal today might become a crime tomorrow or contrariwise for example adultery. But sometimes laws play an important role in changing the mindset of people and put an end to the discrimination of minorities. According to Anjali Gopalan, one aspect to change mindset is the law. Without a strong law, things won’t change.[xiv] So, there is a need to change and evolve the prevailing laws to end discrimination and change the mindset. India has been a country that has always taken positive attributes and aspects of others and accepted and made them as one, the primary example of this is our constitution. Now it is time that India also changes its laws with the emerging need of society and acknowledges the right of a homosexual person to get married to another and start their own family. Swami Agnivesh, a Hindu cleric who supported the abolition of section 377, said the Vedas, the scriptures that undergird many Hindu beliefs, contain nothing that barred same-sex relationships.[xv] John Oliver an English-American, Emmy award winner for his work as the writer said that there is a need for stronger LGBT civil rights as in many states it is still legal to discriminate against homosexual people.[xvi] It is time to treat every gender equally and provide every gender with equal rights. By decriminalizing homosexuality, India has won a battle to treat every gender equality but the war will be won by providing them the right to get married, legalizing their marriage in India and giving them the right to start their own family. By legalizing same-sex marriage, India will set an example to other countries and will also become one of the few countries to do so.
[i] C.N. Shankar Rao, Sociology, Principles of Sociology with an Introduction to Social Thought p.327 (6h ed. 2007). [ii] Ibid. at 327. [iii] Lundberg, Sociology p.133. [iv] https://caravanmagazine.in/vantage/anjali-gopalansection377 [v] (2017) 10 SCC 1 [vi] 2009 SCC OnLine Del 1762 [vii] MANU/SC/0165/2018 [viii] https://www.reuters.com/article/us-india-lgbt/one-year-after-landmark-ruling-for-lgbt-rights-in-india-challenges-persist-idUSKCN1VR256 [ix] (2018 )7SCC 192 [x] MANU/SC/0350/2018 [xi] https://indianexpress.com/article/india/right-to-marry-supreme-court-hadiya-case-5131055/ [xii] https://www.cbsnews.com/news/gay-marriage-goes-dutch/ [xiii] https://www.gov.uk/government/news/same-sex-marriage-becomes-law [xiv] https://caravanmagazine.in/vantage/anjali-gopalansection377 [xv] https://www.theguardian.com/world/2018/sep/06/indian-supreme-court-decriminalises-homosexuality [xvi] https://time.com/4007723/last-week-tonight-john-oliver-lgbt-civil-rights/
Anish Jandial & Pranjul Dalela,
1st Year, B.A.LL.B. (Hons.),
National University of Study and Research in Law, Ranchi.
(Image used for representational purpose only.)