More than a legal contract and devoid of any entitlements, though not recognised, same-sex marriage still exists.
Marriages from time immemorial are viewed as a sacrament union between a male and a female. Because of cultural and religious diversity, marriages in India have multiple layers and colours.
To legalise marriage or a union in India, one has to ensure getting it registered as per the laws available, along with following customs and traditions. However, it is crucial to understand that the laws in India currently pertain to heterosexual relationships, and homosexual unions, including gay marriage, are still waiting for their chance to get legal.
To some extent, analysing the true essence of marriage, being in a relationship with the partner of your choice, same-sex relationships are becoming acceptable. But this acceptance is limited to a certain extent of the population having different views on its embracement.
Though freedom to marry is considered a part of fundamental human rights in India, the LGBTQ+ community is still subjected to several doubts. Despite the changes in our surroundings, several individuals are scared to come out.
Historical Perspective Towards Gay Marriages
Equivalent to the general viewpoint of marriages between males and females, our rich Indian culture is not devoid of homosexuality. Tracing back to the Rig Veda period, Hindu nobles and Muslim nawabs describing young boys in Kamasutra are evidentiary examples of homosexuality and its acceptance by society.
Since our Indian society has been influenced greatly by the Western culture, a standardised norm was created for sexual orientation, especially regarding childbearing.
Brahamanism and British Colonialism completely changed the perspective towards homosexuality, which further enforced it as a mere psychological disease and was seen as abnormal conduct. Homophobia evolved because of the suppression observed against homosexuals, and it became a taboo in India, which is against religious beliefs and is morally wrong.
However, with time, certain laws and practices came into the picture which decriminalised the concept of homosexuality, and various requisite steps protected the interest of the LGBTQ community.
Current Position of Gay Marriage in India
Gay marriage is not legal in India. However, they can benefit as a live-in couple (analogous cohabitation) per the Supreme Court’s order of August 2022 (Deepika Singh v. Central Administrative Tribunal).
Homosexuals are still being subjected to one or another form of violence by society, and the state, has no provision to prosecute people subjecting such violence.
Section 377 of the Indian Penal Code 1860, introduced in the British period, criminalises homosexual acts, and the law existed in India for a long period discriminating against LGBTQ individuals, which was overturned by the Apex court in the year 2018 giving major relief in the fight for legal rights for LGBTQ community.
The LGBTQ community has seen a long battle to receive legal recognition of their rights in India, which could give them an equal stance as heterosexual relationships.
Though the Hon’ble Supreme Court’s decision in Navtej Singh Johar v. Union of India decriminalises homosexuality in India, whether same-sex marriages or is gay marriage legal in India still exists unaddressed.
Article 21 of the Indian Constitution bestowed marriage as a fundamental human right, and marrying someone based on an individual’s choice is a basic right. But this is restricted to heterosexual relationships, and homosexuals lack basic human rights.
Not limited to the constitutional right to marry, but several other civil rights, such as the right to register marriage, maintenance, succession, adoption, spouse insurance, and divorce, are not identified and specified for gays. Article 15 of the Indian Constitution says discrimination based on gender violates fundamental rights, but homosexuals are still not kept on the same footing as heterosexual people.
It is the current legal stance on gay marriage in India which says gay marriage is not legal in India. However, it is pertinent to note that, on the other hand, our Hon’ble Courts, such as Punjab and Haryana, have recognised the homosexual marriage of two women in the year 2011.
4 Major Developments for the LGBTQ Community
1: Decriminalising Homosexuality
In 2018, the Supreme Court struck down the major provision of the Indian Penal Code, i.e. Section 377, which criminalised homosexual acts and bestowed a significant achievement for the rights of LGBTQ. It removes the threat to consensual homosexual relationships and protects them from criminal prosecution.
2: Legal Shade to the Rights of Transgender
For a prolonged time, transgenders were not bestowed with the status of being recognised as a specific gender. However, the year 2014 brought a landmark development by the Supreme Court, which ordered to identify transgender as the third gender, bestowing them with equal rights.
The Transgender Persons Act was enforced in 2019, and this legislative attempt provided legal recognition of the rights of Transgender and adequate protection for their rights.
3: Homosexual Marriages
Though there is no clear legislative provision legalising marriages between same-sex people, however Delhi High Court in the year 2017, through its judicial pronouncement, stated that the right to marry is a fundamental right, and by denying homosexuals this right, we will be violating their right to marry which is part of a fundamental right.
4: Laws Against Discrimination
India doesn’t have a comprehensive law relating to the discrimination against LGBTQ individuals in the sphere of employment, accommodations, etc. However, there are several states, such as Kerala and Tamil Nadu, that have laws protecting the rights of LGBTQ individuals as anti-discrimination laws.
Conclusion
In India, marriages are not only governed by religious or cultural beliefs but by intrinsically woven personal laws that introduce various consequential rights for married persons.
Several petitions were heard by the Supreme Court early this year concerning the marriage of same-sex people and their rights. However, the concern has not yet been decided, which still makes the legality of gay marriage in India unanswered.
It is pertinent to note that instituting gender-neutral interpretations of existing laws or upcoming laws would require extensive rewriting of every legislation. Merely providing homosexual marriages with status in society would not resolve the issue as it is not limited to the stature of the same-sex couple but also the rights that come with the institution of marriage.
