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Same-Sex Marriage: A Step Towards Inclusion

By: Alankrita Pathak & Sanigdh Budhia* |

“I am what I am, so take me as I am”

--- Johann Wolfgang von Goethe

The Initial Steps

Marriage has been defined as the state of being united as spouses in a consensual and contractual relationship recognized by law. Nowhere is it mentioned that this relationship should be between individuals of two opposite sexes. Marriage is a formal union and social and legal contract between two individuals that unites their lives legally, economically, and emotionally; emphasis be laid on the word individual.

From being a strategic alliance, an economic activity, to being based on love, mutual attraction and possibly sexual desire, as Coontz said, marriage has come a long way. But this attraction cannot be caged to a specific gender only. One can develop desire towards any gender, a male can get attracted to a male, and similarly, a female can get attracted to a female, and not allowing marriage if it is towards same-sex is out rightly wrong. Because fundamentally the choice of marriage with the civil rights attached to it, should be theirs too and not only of heterosexuals. On the contrary, the LGBTQ community hasn’t been able to exercise the right to self-identity, or the right to self-expression or the right to marry. However, we have come a long way from where we were about half a century ago. Although homo-sapiens may have shared same-sex relations since a very long time, the ability to form a same-sex family is a genuine twenty-first-century innovation. After the first step in the Netherlands in 2001, 29 regions/countries (two sub-national regions are Scotland and Greenland) have given same-sex couples, marriage rights. Taiwan needs a special mention here as it was the first region in Asia to legalise homosexual marriages in 2019.

Taiwan's road to marriage equality took more of a "big bang" course, with no civil unions or other lawful forms available before the constitutional court struck down the existing prohibitions in 2017. In Taiwan, the movement to legalise same-sex marriage failed to gain momentum before the 1990’s, it was only then that the homosexuals began to establish their own bookstores, clubs, support groups and so on. This kick-started their fight for equal rights as heterosexual couples. Eventually, on May 24, 2017, it was held by the Constitutional Court that the marriage law was discriminatory, and that the Constitution of the Republic of China ensures same-sex spouses the right to get married under the right to equality and freedom of marriage. The ruling also gave Taiwan’s parliament two years to pass new legislation legalizing same-sex marriage which was enacted on 24th May, 2019 thereby making it the first Asian region to do so. Hence, it could be said that slowly developing legal right and awareness is resulting in changes in the prevailing situations.

The Indian Context

When it comes to India, homophobia is prevalent and public discussions about it are loathed. But this wasn’t the case always. Historian Rana Safvi says "love was celebrated in India in every form. Whether ancient or medieval India, fluid sexuality was present in the society”. One can see the depictions of homosexuality in the Mughal chronicles. Thus, it can be said that India had a more accepting and open view before the British Raj.

The judiciary today, through its various judgements is trying to regain that lost glory. Taking a step towards this, the Hon’ble Delhi High Court in 2009 in the Naz Foundation case, held that Sec 377 of the Indian Penal Code disregarded various fundamental rights mentioned in Article 14, 15 and 21 of the Indian Constitution; but, there came a major setback in 2013 whereby this judgement was overturned and it was concluded that Sec 377 was constitutional. Finally, in 2018 came the Navtej Singh Johar judgement by which the Hon’ble Supreme court held section 377 of the Indian Penal Code, 1860 (IPC) to be unconstitutional, in so far as it penalises any consensual sexual relationship between two adults, be it homosexuals, heterosexuals or lesbians.

The Johar judgment comes right on the heel of other progressive decisions given by the Supreme Court in Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (2017) (Privacy Judgment) and National Legal Services Authority v. Union of India and Ors. (2014) (NALSA Judgment). In the Privacy Judgment, while recognising the fundamental right to privacy, the Supreme Court recognised sexual orientation as an essential attribute of privacy. In the NALSA Judgment, the Supreme Court granted legal recognition to transgenders and their gender identity.

In the Johar judgement while assessing the legality of homosexual activities in India, Chief Justice Misra and colleagues drew various parallels to recent rulings of constitutional courts of nations with similar legal traditions and constitutional structure. Their recorded reasons include significant studies of the United States', Canada's, South Africa's, the United Kingdom's, and the European Court of Human Rights' emerging jurisprudence, all of which have legalized same –sex unions as well as marriages.

The Supreme Court said, constitutional courts “are under an obligation to protect the fundamental rights of every single citizen without waiting for the catastrophic situation when the fundamental rights of the majority of citizens get involved.” The court emphatically rejected the subjection of a minority to “societal pariah and dereliction”, and said that Section 377 “mars their joy of life”. The understanding, sensitivity and expression of legal principles in this judgment was greatly moving and uplifting and came as a beacon of hope for the queer community in India.

Now, continuing their fight and taking this a step further, petitions have been filed which seek the legalisation of homosexual marriages. But, a major obstacle lies in the way wherein the Union Government of India itself has sought for dismissal of these petitions on the grounds that same-sex marriages do not fulfil the criteria of Indian marriage concept of family, consisting of a husband, who is a biological male and a wife, who is a biological female and a child. There is an orthodox view which holds that same sex marriages will prove to be detrimental for traditional marriages and will destroy the social fabric. The Centre reaffirmed this statement when it told the Delhi High Court that a marriage in India necessarily depends upon “age-old customs, rituals, practices, cultural ethos and societal values” and that “any interference with the existing marriage laws would cause complete havoc with the delicate balance of personal laws in the country”. But, the question isn't necessarily that of a lack of proper political will. Same-sex weddings are often frowned upon by a wide segment of Indian society, who see them as a threat to their identity and culture as a whole. Again, this is an outright rejection of the fundamental rights and autonomy of an individual. The Supreme Court has held in the case of Shakti Vahini vs Union of India that if the right to “express one’s own choice is obstructed, it would be extremely difficult to think of dignity in its sanctified completeness. When two adults marry out of volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so; and it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation.” Hence the argument for equal rights.

Further, it has been found in a study that same sex marriages are more stable because of greater understanding between spouses. Belonging to the same gender, they cater to each other’s needs more efficiently. So, the doubt regarding the superiority of heterosexual marriages stands absolved.

One might also wonder that if the homosexual acts have been decriminalised, where is the need for legalisation of such marriages. Here, emphasis should be laid upon the legal benefits that only a married couple can enjoy. Marriage gives the spouses a right to acquire properties in joint names, own joint bank accounts, lockers; nominate each other as nominee in insurance, pension, gratuity papers and also legal entitlement to receive pension in case of death or disability of the other spouse. Even when one side-lines all these materialistic advantages, the homosexuals are deprived of the greatest joy of a couple can imagine, a child. Laws in India allow only heterosexual couples who have been married for at least 5 years to opt for surrogacy. According to India’s Adoption Regulations, 2017, as published on the official website for the Central Adoption Resource Authority (CARA), couples who have been married for at least two years, as well as single women, can adopt a child of any gender while a single man is eligible only to adopt a male child. There is no mention of couples in live-in relationships, same-sex couples and transgender individuals, almost as if they do not exist. We don't understand that merely decriminalizing consensual sexual acts doesn't make the situation better, that's just the first step. We forget that queer people are also like us, who are seeking their rights just to live like us, and marriage is one of them.

Concluding Thoughts

Thus, it is clear that there is a need to usurp the patriarchal notion of marriage and rise above the heteronormative standards stated above that have long been embossed upon our culture. Quoting Vikram Seth here-

"Some men like Jack and some like Jill /I'm glad I like them both but still/I wonder if this freewheeling/Really is an enlightened thing, /Or is its greater scope a sign/Of deviance from some party line? /In the strict ranks of Gay and Straight/What is my status: Stray? Or Great?"

There's just one thing to be said, the only rank that exists is of being a human, capable of loving and being loved. So, it's time, that we recognize the rights of the queer community, give them a right to live legally, bind themselves in the holy tradition of marriage, and lead a life, as human as straight people.

“Marriage should be between a spouse and a spouse, not a gender and a gender.”

--- Hendrik Hertz


* The authors are students at Gujarat National Law University, Gandhinagar.


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