I. Introduction

In an ever-unfolding society like India, the concept of Family means a husband, a wife and children. Being in such a country and living together and having a sexual relationship by same-sex are still considered as the filth of society. India is a great country with vast diverseness. But let’s not forget while looking for acknowledgement in an Indian traditional family one can’t look to accomplish absolute changes in the citizen’s eye. Each one of us suffers from many issues and stereotypes. Until and unless we rise above these we cannot progress as a society. Here we have one such topic of embracing same-sex nuptial ceremony where we the people need to change their point of view. Matrimony i.e. marriage being one’s personal choice cannot be subjected to governmental or political activities.

Now, the question arises that what does same-sex relationship mean? So, Same-Sex relationship is something a kind of relationship where 2 person belongs to the same gender. There is no restriction on their sexual orientation. This relationship is called a lesbian or gay relationship, which is not accepted by Indian society because we “the Indians” consider it as beyond natural deeds. Homosexuality is something as natural as a person’s skin colour and by not letting two people of the same gender marry they are being forced into a life of misery and sacrifice. Practically speaking suppose 2 girls named Meera and Maya, met each other in the same college and after few months found to be in love with each other, after realizing the fact they decided to get married but they found that this is not possible as no act or marriage provision gives them any right to get legally married.

II. Same-sex marriage in india: history

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

– Hendrik Hertzberg

According to today’s generation and the government of India, they are trying to be open-minded towards the LGBTQ community.

India’s fight for gay rights is not a concept being generated now, it was started in the minds of people from the year 1861. This was for the first time in India that Section 377 was introduced by the British government. Section 377 of the Buggery Act, 1533 was drafted by Thomas Macaulay in 1838 and came into effect in the year 1860[1] which defines ‘buggery’ as an unnatural sexual act against the will of God and man[2].

Over years, S. 377 [3]has been in controversies as it is challenging in various aspects. Due to which in the year 2001, the Naz Foundation filed a petition in the Delhi High Court questioning its constitutionality and also asking the court to grant a decision to allow consenting adults to have non- Hetro-sexual relationship. But, later, in 2003 the plea was dismissed on the grounds that the Naz Foundation body has no stand in the present matter. As the Naz Foundation were not satisfied with the court’s decision they filed an appeal directly to the Honourable Supreme Court of India in order to reconsider the matter.

Later in the case of Naz Foundation v. Govt. of NCT of Delhi[4],  it was held that article 21 which talks about the right to life and liberty also included the right to dignity and privacy which means criminalization of consensual homosexual is a violation of these rights. They mentioned that section 377 also violate the right to equality i.e. Article 14 which seems unreasonable to the homosexual community. According to the constitution of India discrimination on the basis of sex is prohibited i.e. Article 15. The term sex not only includes the biological sex but also sexual orientation.so, discrimination based on their sexual orientation is invalid by the constitution. Finally, the court decriminalized section 377 and left the further amendment over the legislative.

After Naz’s case, several appeals were made challenging the HC’s authority. In the case of Suresh Kumar Kosha v. Naz Foundation[5], the Supreme Court overruled the decision given by the High Court presuming it “Legally Unsustainable” and stating that interference or the amendments related to the existing laws is the only power left with the legislative body. Later, Shashi Tharoor, Member of Parliament in 2015 introduced a private bill to decriminalise homosexuality. However, the Lok Sabha voted against the bill under the governance of BJP rule.

Thereafter, five petitions were filed by well-known LGBTQ activists all in 2016 claiming that S. 377 violates the right to sexuality, choice of sexual partner, right to life, right to dignity, sexual autonomy and right to equality along with various other fundamental rights that are guaranteed under part 3 of the Indian Constitution.

In Navtej Singh Johar vs Union of India Ministry of Law And Justice, 2018[6] the Supreme Court passed a judgement favouring the contentions of the plea. The court held that criminalizing the sexual relationship between any person is constitutionally incorrect as it violated Article 14 i.e. right to equality. Therefore, the choice of having whom the partners will be is left with the person itself which is protected under the fundamental right of the Indian constitution.

III. Current scenario

Still, after decriminalizing section 377 of IPC, the dilemma of Homosexuals is not expiring. At present times, the Delhi High Court was hearing the batch of matters related to 3 petitions which were filed by homosexual couples pursuing the court to declare that SMA[7] and FMA [8] ought to apply to every couple regardless of their sexuality and gender identity. In simple terms seeking for the legal recognition and Same-Sex Marriage registration.

The Centre has opposed all the petitions claiming that a nuptial Ceremony or a marriage between cannot be said to be private affairs. The centre has opposed raising the following arguments:

• The concept of homosexuality is not compatible with an Indian society–

Under the Indian society, the virtue of having a same-sex relationship is inadequate as the society is not ready to accept the border view of having a homosexual family.

• Systematically not codified–

 Nuptial ceremony of homosexual genders is neither accepted nor recognized in any codified or codified personal or statutory laws.

• The issue with personal laws –

Personal laws are delicate and such interference can destroy the available personal laws.

• Registration of Homosexual or Same-sex marriage prohibits or violates not only the existing personal laws but also provisions of codified laws. For example: “Conditions of Marriage” under Personal Law.
• The judgement of the Navtej case didn’t extend the Right to privacy to include the right to marry an individual of same-sex as a fundamental right.
• Legislative challenges –

It is difficult to give any other interpretation apart from husband to a man and wife to the woman biologically may make the provisions of acts impracticable. In the case of same-sex marriage, it is not possible to term one as a wife and the other as a husband concerning the existing provision.

• Legislature-

For the validity of a law societal morality should be taken into consideration and the task of enforcement of such societal morality and public acceptance is on the legislature.[9]

As per the current situation, few of the people started realizing the emotion as well as the reason behind having homosexuality in our society. Various celebrities, actors, and common people started supporting the concept of homosexuality as they realized that there is nothing wrong with having it. But the problem is that presently, only the government and few people who were grown up with the narrow mentality are opposing this concept which is creating conflict and chaos within a patriarchal society like India.

Conforming to the common man’s perspective the point that arises is that if the government itself is acting in such an irrational way then what else can we expect from our citizens. As there is saying “Janta wahi karti hain jo Sarkar kehti hain” [Translation: The Public does what the government say]”

IV. Is Marriage really necessary?

                                           “Marriage is the union of two souls, & Soul has no Gender.[10]”

In this world, everyone needs someone to live their life. Gender is something that can be only possessed by Human Bodies. Universally, Marriage is known to be the union of two souls and also holistically it is believed that soul has no gender.

Though one will not be able to understand the significance of marriage until and unless a person gets married. However, here are some key points to know exactly why marriage is so necessary. They are as follows:

• Work in Unison:

To achieve their goals marriage turns the commitment into collaboration where both the spouse is the ultimate player and work together in coordination.

• Boon for all:

This sacred bond has various advantages not only for the partners but also for their families as it produces a new relationship between the two. Also, it aids in communal & economic assistance towards the family.

• Enlighten you with Understanding:

This bond strengthens your commitment by providing you with a person who will stand by all your ups and downs & also the best friend with whom you can talk about anything without thinking of being judged.

• Emotional & Existence Hostage:

Marriage is a relationship where you will always have someone to look after you. No matter whatever you do your partner will always be on your side which clearly shows the purity of this bond.[11]

V. Contravention of fundamental Rights

“Equality means more than just passing laws.

The struggle is really won in the hearts and minds of the community, where it really counts”.

—Barbara Gittings

For a long time, the rights of the LGBTQ community had been suppressed. They face countless difficulties especially in a country like India where people mostly regard them as abnormal. As we all know the constitutional law is supreme in terms of any other laws in our country and violation of the constitution is not acceptable therefore infringement of FRs (herein referred as ‘The Fundamental Rights’) means the contravention of the basic structure of the Indian constitution. Here Article – 14, 15(1), 19 (1) (a) and 21 are violated.

1. Right to Equality:

 Article 14 of the Indian Constitution talks about the equal protection of law and equality before the law. It states that the state shall treat every person equally[12]. The third gender has always been treated unequally they are considered as an unnatural thing in society. Right to equality for a very long time has been violated as the LGBTQ community do not have legal same-sex recognition in society and not even that there is also no such legal provisions in India that give them the right to adopt a child just like any other gender or couple are allowed too.

2. Right Against Discrimination:

Article 15 (1) of the Indian Constitution talks about Right against Discrimination on the ground of religion, race, caste, sex and place of birth[13]. In 2014 the Honorable Supreme Court of India held that transgenders should be recognised as a third gender legally[14] and therefore not recognizing homosexuality leads to discrimination on the ground of sex.

3. Right to Freedom of Speech and Expression:

Article 19 (a) of the Indian Constitution talks about freedom of speech and expression which clearly states that the person has the right to express one’s sexual identity or sexual orientation[15]. This right has been violated as the LGBTQ community matrimonial right is still not accepted by society and they do not have the right to express themselves rather it is considered as a sin.

4. Right to privacy:

 Article 21 of the Indian Constitution talks about the right to privacy render for safeguarding life and personal liberty and the right to live with dignity means the right to have gender identification and the right to marry a person of one’s own choice.[16] But LGBTQ community are blocked with all these rights as currently the protectors and lawmakers have themselves started questioning same-sex marriage recognition.

VI. Whether same-sex marriage is possible in india?

In India, same-sex marriage is not lawfully acknowledged in the meanwhile their couple rights were also infringed such as civil union (specified rights or responsibilities of a married couple) and domestic partnership ( not exactly the marriage but result in the same benefits).

Although it is still not legal but the Haryana Court in the year 2011 granted a remarkable judgement granting legal acceptance to Homo-sexual marriage where two women were involved[17].

In the aftermath of the Honourable Supreme Court’s 2018 Judgement, many homosexual couples approached the marriage registrar for the registration of their marriage but the registrar refused to register due to lack of legal provision. No doubt we will have to wait for society as well the government to accept this concept but we should not avoid the fact that numerous cases are still on hold for seeking relief in case of same-sex marriage.

VII. Same-sex marriage under various personal laws in India

1. The Hindu Marriage Act,1955

As per the Hindu Marriage Act 1955, the term marriage is not defined and even does not expressly state that the act of marriage is between a Man and Women. It classifies the marriage between 2 Hindus. Section 5 of the Act talks about the solemnization of marriage [18]and Section 7 talks about the ceremonies of a valid Hindu marriage. However, it uses the term Bride (Hindu Man), Bridegroom (Hindu Women) which generally refers to heterosexual couples[19]. Here the act seems flexible and the words can be amended easily including both heteronormative and Homonormative views.

2. The Christian Marriage Act, 1872

Likewise, the Hindu Marriage Act, no-where in Christianity Law Same-sex marriage is expressly prohibited. S. 60 of the Christian Marriage Act, 1872 states that the age for marriage for a man and women should be 21 (Twenty-One) & 18 (Eighteen) respectively[20] for Bridegroom and Bride which clearly shows the Hetro-normative perspective. However, the act is still flexible to get amended.

3. The Muslim Personal Law

According to Traditional Islamic law Marriage is a heteronormative view with the ultimate aim of ‘Procreation’. Homosexuality in Islam is expressly banned and is considered as a sin and are liable for punishment for the example death penalty, imprisonment etc. But some say that Homosexuality is not completely prohibited as there are no expressed views it is just a non-inclusion[21]. There are fewer chances for Homo-sexual marriages in this law as even in the divorce law the terms like ‘Men’ and ‘Muslim women’ are used. Therefore, taking into consideration the issues of Islamic LGBTQ Community couples, the state must either come up with some new amendments or else should modify the special Marriage Act.

4. The Special Marriage Act, 1954

The special marriage act does not restrict people to any kinds of religions and it can be followed by any people who do not want to be governed by their personal laws. Still, this act discriminates against the homosexual community.

• Section 4 talks about the eligible age of man and women which seems hetero-normative in nature.[22]
• Section 27(1A) talks about the grounds of divorce a woman can be granted based on been proven guilty of rape, sodomy or bestiality which again expressly mention the hetero-normative term. [23]
• Section 36 of the act talks about the wife seeking expenses from the husband which again express the term hetero-normative in nature. [24]

As per the Judge’s opinion if in mere future even if this provision is made flexible for the homosexual couple then this will infringed the intention of the legislature. For example, if a homosexual couple comes for the maintenance were one male will have a stable income and the other not. Then the intention of this section will be wrongly interpreted as this provision is specially made by the legislature with the intention for the upliftment of women in the society. Therefore, as the legislature made such laws intending for the upliftment of the women similarly they should also look into the aspect for the LGBTQ community.

VIII. Do LGBTQ Couples have parenting rights?

“Parents are the ultimate role models or are similar to God. Every word, every movement, action effects and no one could be so supportive, empathetic, lovable than a parent.”

In India, every couple enjoys parenting rights where they have a right to adopt the children except for the LGBTQ community. The LGBTQ community don’t have any such adoption rights even there are no such laws, statues, provision or any other bylaws which provides them such rights. The legal recognition of this community is still a question in an Indian society that seems too inflexible concerning rights.[25]

In 2018 India had 29.6 million orphan and abandoned children which was increased to 31 million in the year 2020 as per the report published by UNICEF. [26]Therefore, it means that a child should be grown all alone without the parents support, care, love and protection rather than being brought up by a homosexual couple.

According to the present situation, a child definitely needs someone to be there for them, to hear them and also to understand them but just because of the poor mentality of the Indian society the feelings, the emotions and a lot more is being neglected which later leads to depression, anxiety, disorder etc. Who says that a homosexual couple cannot play the role of parents? To be a parent you just need to have a quality of parents regardless of any Gender.

Do same-sex couples make fit parents?

Parents are always parents be it father or mother or an LGBTQ person their gender doesn’t define their affection towards their children. Apart from one’s perspective, even the scientific studies have compared both Homo-sexual & hetero-sexual parents and come to a positive conclusion stating that same-sex couple parents are no different from ordinary heterosexual couple parents. Their children are as fit as any other children of a society both psychologically and educationally.

Activist Gauri Sawant, a transgender is a prominent example of a fit parent in India who adopted a girl child when her mother died at the age of 16. Therefore this example clearly proves that to have parenting rights one doesn’t need any gender identity or any certificates from society to prove to be good parents.

IX. Pave towards LGBTQ rights in different countries

1. Canada:

It was the Klippert’s case that gave arisen to the concept of legalising same-sex marriage in Canada. Everett was the last person to be imprisoned on the ground of Same-sex marriage. This case pointed out the discrimination against the LGBTQ community that they had been facing since ages. Soon, in 2005 Canada legalized Homosexual marriage by adopting the Civil Marriage Act. In Canada, the transgender is allowed to choose their gender as ‘X’ on their Country’s i.e. Canadian’s passport. Reports state the vast supporters of the LGBTQ community is a Canadian Society especially in places such as Vancouver, Toronto, Montreal and Ottawa. Montreal is a place that even has ‘Gay villages.’

2. Spain:

This country has given much attention to the LGBTQ community right from the 20^th century. In 1979 itself homosexuality became legal and in 2005 Homosexual or Same-sex marriage got its legal recognition not even that they also gained adoption rights as well.

Even the Pew Research centre has estimated that about 90% of the country’s population believes in LGBTQ community acceptance. Spain has been identified across the world as the friendliest place for the LGBTQ community.

3. The Netherlands:

This country is known to be among the first country to legalize Same-Sex marriage. It was then when France invaded and occupied the territory of the Netherland and enacted the code of Napoleonic which erased all discriminatory laws and declared same-sex marriage legal. Later, in the 20^th Century as the LGBTQ community rights soon recognized in the society so the concept of homosexuality was removed from the official illness list in 1973.

4. Malta:

Malta is one of the most famous country of Europe which spreads awareness with regards to LGBTQ rights across the world. Since 2004 itself Malta has banned discriminatory laws against the LGBTQ community. The country has even allowed them to serve in the military and also they have the right to be in a civil union. As of now, Homosexual marriage is legal but still, it is reported that assistance concerning surrogacy and reproduction for homo-sexual couples are still banned.

5. Portugal:

In recent years, in Portuguese society, LGBTQ rights have arisen. From, 2010 Homo-sexual marriage has been given legal recognition not even that the country has various anti-discriminatory laws which aim at giving equal rights and opportunities to the LGBTQ community like every other gender.

6. Norway:

Anti-discrimination law was adopted by Norway in 1981 including sexual orientation. Since 2009 simultaneously homosexual marriage and adoption were legally recognised in addition to IVF therapy. Furthermore, Norway also adopted and encourage a person to change their sex legally. For LGBTQ tourists Norway is one of the most popular countries.

7. The United Kingdom:

Decriminalization of homosexuality in the UK was identified between 1967 and 1982. the acquiring of safeguarding for LGBT people has been pronounced during the 21st century in the UK. Change of legal gender and serving in arm force by the LGBTQ individual is permitted. A civil partnership is allowed in North Ireland while in wales, England and Scotland legalized homosexual marriage.

8. Finland:

In recognizing the rights of the LGBTQ community Finland has made major tread. In 2014 the adoption rights of same-sex couples incorporation to homosexual matrimonial rights has been adopted by the Finnish Parliament. Furthermore, they adopted numerous anti-discrimination for LGBTQ communities. The switching of legal gender is allowed to the transgender while same-sex people can publicly work in the military.

9. Denmark:

Since 1933 Denmark legally adopted homosexual activity. In 1977 notwithstanding their sexual or gender orientation the age of consent was agreed at 15. In 1989 Denmark was the first country who identifies homosexual partnership with the title “registered partnership”. In 2010 the joint adoption for the homosexual couple was approved, in 2012 their marriage laws were officially recognized.  Copenhagen is one of the world’s most gay-friendly cities because of the scenes such as the yearly Pride Parade. The Faeroe Islands and Greenland territory of Denmark also legalized the concept of same-sex marriage.

10. Belgium:

In 1975 the homosexuality was legal in Belgium except during the period between 1965 and 1985. In 2003 Belgium was the 2nd country in the world to lawfully recognized same-sex marriage. IVF access was given to lesbian couples while same-sex adoption became legal in the country during 2006. La Démence is a festival hosted by Belgium internationally for gay pride.  Brussels is the city in Belgium that has a growing LGBT scene in addition to pride week.[27]

X. Conclusion & Suggestions

“But the fact that same-sex marriage is still an issue is insane.

Thinking love knows a sex is ridiculous.”

– Garret Dillahunt (American Actor)

This concept of Same-same marriage has always been a controversial topic in Indian Society. To think practically, legalizing Homo-sexual marriage causes no harm to the society as in logical perspective homosexuality is no offence[28]. Irrespective of gender do I don’t have that much liberty to decide to whom should I marry?

Legalizing Same-Sex marriage brings in some distinct boon to each society. Right from producing real equality to providing more help to the LGBTQ community. It also spreads happiness and will bring in new business opportunities. Ultimately, it will stop the violence[29]. We are not asking to include everything under the Fundamental Rights, the right to marriage, the right to express one’s sexual identity or sexual orientation and the right to marry a person of one’s own choice is the right which is already been included in the FRs of the Indian constitution, it is just that it is not expressly been recognised.

“That old law about ‘an eye for an eye leaves everybody blind. The time is always right to do the right thing.”

-Martin Luther King, Jr.

Indian Law is dynamic in nature and it needs changes from time to time. People think the law is a powerful tool for change but the reality is such that law cannot address problematic norms unless people change their attitudes, which seems to be difficult after a certain age as gender socialization starts early, this leads to the formation of Schools of Equality as it is been said that the children’s in an early age is just like the base of the clay used by the potter for making pots, cups etc. The potter while preparing the base he can think to make a cup instead of a pot, it can be modified but once the base is prepared change is difficult. Therefore, the thoughts, opinion and mentality of the children’s will be the way they had been brought up.

“It is a battle half won”

Our Context is as simple as ever, at present, the most pressing need is to put an end to gender discrimination and to establish justice and equality for every person in India. From ages they have been deprived of their rights, so now the judgement should be held based not on gender but based on justice, equality and humanity. There are various countries like Canada, Belgium, Spain, Denmark etc. which have not only legalized Same-sex marriage but also have given Adoption rights to the LGBTQ community. India should also try to adopt such measures or try to make special laws for providing real equal rights to such minor communities. Here are some following areas enlisted below where India can work more are as follows:

• Workshops and seminars should be organized to spread awareness.
• The state without any discrimination should protect their fundamental rights.
• Try to take preventive measures w.r.t domestic violence, public and family.
• Special laws should be introduced.
• Social, Economic and political opportunities should also be provided.
• Attitude towards the LGBTQ community must be changed.
• Government should encourage LGBTQ people to be employed in a workplace just like any other people[30].

“Democracy is not the law of the majority but the protection of the minority.”

– Albert Camus

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[1]Same-sex marriage not comparable with Indian family unit concept’: A timeline of Section 377, The Indian Express, (Feb 26, 2021, 1:38:34 pm), https://indianexpress.com/article/india/timeline-of-section-377-7205718/.

[2] The Buggery Act, 1533, S. 377.

[3] The Buggery Act, 1533, S. 377.

[4]Naz Foundation v. Govt. of NCT of Delhi, (2009) 160 DLT 277 (India).

[5] Suresh Kumar Koushal & Anr v. NAZ Foundation & Ors. , (2013) SC 10972 (India).

[6] Navtej Singh Johar v. Union of India Ministry of Law And Justice, AIR 2018 SC 4321 (India).

[7] The Special Marriage Act,1954.

[8] The Foreign Marriage Act, 1969.

[9] Same Sex Marriage, IASbaba, https://iasbaba.com/2021/02/same-sex-marriage/ .

[10] Paras Sharma, The Unanswered Question of Same-Sex Marriages in India, JURIST , (Oct 19,2020, 11:30:20 PM), https://www.jurist.org/commentary/2020/10/paras-sharma-india-same-sex-marriage/ .

[11]Sylvia Smith, Why Is Marriage Important – 8 Reasons Revealed, Marriage.com, https://www.marriage.com /advice/relationship/why-is-marriage-important/ .

[12] India Const. Art 14.

[13] India Const. Art 15 (1).

[14] National Legal Service Authority (NALSA) v. Union of India (UOI), (2014) 5 SCC 438 (India).

[15] India Const. Art 19 (a).

[16] India Const. Art 21.

[17] Dipak Kumar Das & Sanjay Yadav,  In a first, Gurgaon court recognizes lesbian marriage, The Times of India (TNN), (July 29, 2011, 00:33 IST), https://m.timesofindia.com/city/gurgaon/in-a-first-gurgaon-court-recognizes-lesbian-marriage/articleshow/9401421.cms.

[18] The Hindu Marriage Act, 1955, S. 5.

[19] The Hindu Marriage Act, 1955, S. 7.

[20] Nitya , Decriminalization of Section 377 IPC: Securing Right and Social Inclusion of LGBTQ+, Academike (Oct 9, 2020), https://www.lawctopus.com/academike/decriminalizing-of-section-377/.

[21] Muhsin Hendricks, Islamic Texts: A Source for Acceptance of Queer Individuals into Mainstream Muslim Society 5 The Equal Rights Review 31, 37 (2010).

[22] The Special Marriage Act, 1954, S. 4.

[23] The Special Marriage Act, 1954, S. 27 (1 A).

[24] The Special Marriage Act, 1954, S. 36.

[25] 5 Recently Asked Questions About Same Sex Marriage Laws, LEGODESK, https://legodesk.com/legopedia/same-sex-marriage-laws/.

[26] Vaishnavi Kaushik, A discussion on the adoption and marriage rights of LGBTQ + community?, THE DAILY GUARDIAN , (Jan 28, 2021, 8:55 PM IST), https://thedailyguardian.com/a-discussion-on-the-adoption-and-marriage-rights-of-lgbtq-community/.

[27] Joseph Kiprop, The 10 Best Countries For LGBTQ Rights ,WorldAtlas, (May 31, 2019), https://www.worldatlas.com/articles/the-10-best-countries-for-lgbt-rights.html.

[28] Same sex marriage: should it be legalized in India?, IPleaders, (July 5, 2015), https://blog.ipleaders.in/legalising-same-sex-marriage/.

[29] The Advantages and Disadvantages of Same Sex Marriage, ASIA-PACIFIC ECONOMICS BLOG, (May 11, 2016), https://apecsec.org/the-advantages-and-disadvantages-of-same-sex-marriage/.

[30] Rights of LGBT Community In India, JVS, (Oct 18, 2019), https://www.jatinverma.org/rights-of-lgbt-community-in-india/.

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