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Same Sex Marriage: Is It The Time For Legal Recognition

Written by: Vidhan Maheshwari - Law Student, NLIU, Bhopal
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While talking about legitimating same sex marriage, I am reminded of a story of a washer man and his donkey. The donkey refused to move with the heavy bundle of clothes on his back from his house to the pond. The washer man nailed a carrot to a stick, which was tied in front of the animal's mouth. The donkey kept on moving with a view to cat the priced vegetable - the ass goes on and the carrot is un-reached. In the field of jurisprudence this shows how some laws the proverbial ass, pursue, perpetually, the carrot of the moral ideal. Is it not time we woke up to the reality, that homosexuals are as normal as you and me. According to some study, about at least 5-10% of population is gay. You can calculate and see what the figure is for India. Even if it is not that high a figure, we know that it is a quite common phenomenon. Its not good in the Indian society but its is a psychological phenomenon, you can not help it. An increasing number of gay groups through out the country and serious thinking among them is seen in India in the last few years. Whether same sex marriage should be legalized is more of a religious debate then a political one. While I believe that marriage is a sacred union between man and woman, I also believe that our country was founded on the principle that everybody has the right to the pursuit of happiness. And if a man marrying a man or a woman marrying a woman makes them happy then I think it's okay. I do not believe it affects anyone negatively.

Homosexuality has an ancient history in India. Ancient texts like Rig-Veda which dates back around 1500 BC and sculptures and vestiges depict sexual acts between women as revelations of a feminine world where sexuality was based on pleasure and fertility . The description of homosexual acts in the Kamasutra, the Harems of young boys kept by Muslim Nawabs and Hindu Aristocrats, male homosexuality in the Medieval Muslim history, evidences of sodomy in the Tantric rituals are some historical evidences of same-sex relationships.

However, these experiences started losing their significance with the advent of Vedic Brahmanism and, later on, of British Colonialism. Giti claims that Aryan invasion dating to 1500 B.C began to suppress homosexuality through the emerging dominance of patriarchy . In the Manusmriti there are references to punishments like loss of caste, heavy monetary fines and strokes of the whip for gay and lesbian behavior. In the case of married women, it is mentioned that 'luring of maids' is to be punished by shaving the women bald, cutting of two fingers and then parading her on a donkey. Manu's specifications of more severe punishments for married women can suggest either a wide prevalence of such relationships among married women or a greater acceptance of these practices among unmarried women. In either cases, these references point to the tensions in the norms of compulsory heterosexuality prescribed by Brahmanical0 partite. Both sexual systems coexisted, despite fluctuations in relative repression and freedom, until British Colonialism when the destruction of images of homosexual expression and sexual expression in general became more systematic and blatant.

The homophobic and Victorian puritanical values regarded the display of explicit sexual images as 'pornographic and evil'. The Western view, since the time of Colonial expansion, has been strongly influenced by reproductive assumption about sexuality. These puritanical values and attitudes were in turn mapped into the interpretation of sexual activity among colonial people which is evident from the responses to all forms of 'unnatural' sexual practices. The Indian psyche accepted the Western 'moral and psychological' idea of sexuality being 'pathological' rather than the natural expression of desire, which once used to be part of Indian culture.

The last century witnessed major changes in the conception of homosexuality. Since 1974, homosexuality ceased to be considered an abnormal behaviour and was removed from the classification of mental disorder. It was also de-criminalized in different countries. Since then various states across the globe enacted anti-discriminatory or equal opportunity laws and policies to protect the rights of gays and lesbians. In 1994, South Africa became the first nation to constitutionally safeguard the rights of lesbians and gays. Canada, France, Luxembourg, Holland, Slovenia, Spain, Norway, Denmark, Sweden and New Zealand also have similar laws. In 1996, the US Supreme Court ordered that no state could pass legislation that discriminated against homosexuals. In India, so far no such progressive changes have taken place and the homosexuals remain victims of violence in different forms
supported by the state and society.

The issue of homosexual conduct has come to this fore in recent legal and political debates for three main reasons:
(I). Liberalization of the law (in the U.K., by the Sexual Offences Act 1967 as amended in 2000 and some other countries by a similar legislation) has brought with it a change in social attitudes, so that the stigma attached to the homosexuality has to a greater extent disappeared.

(II). Campaigns for lesbian and gay rights especially in the U.S. have taken on an increasingly radical character, arguing for an end to all forms of discrimination against homosexuality, and even for the legalization of same sex marriages.

(III). The outbreak of HIV/AIDS which has been spread in western countries to a great extent by homosexual activity between males, has led to accusations and counter-accusations, often of a bitter kind. Spain, Belgium and the Netherlands, as well as Canada in allowing same-sex marriages. Same-sex acts are punishable by death in nine countries around the world.

Arguments by those who don't want it to be legalized:
This is more of a religious debate then a political one. Large number of people specially in India are opposing it, as they say it is unnatural, uncouth and immoral. Prime Minister Mr. Manmohan Singh on asking what did he think about the Canadian law of homosexual marriages he replied it is not appreciated. Those people who are opposing it their arguments are based on religious and natural law belief. Some people don't consider them as natural because they do not produce kids. Is it sacred if gay marriage is allowed God created Adam and Eve, we never find statements in Genesis about Adam and Steve. Why break God's law by allowing gay marriage If nature wanted same-sex people to live together, there would only be one sex rather than different sexes. Our society is based on opposite sex marriage. If gay marriage is OK, then why can't I marry my cousin, or my sister, or my cat. Don't I have the same rights as gays or are they now above the rest of us. Don't forget that the law is specific on this. It was created to keep the fabric of society together. It goes against the laws of the land that have been used for hundreds of years and were based on the basis of the commandments.

How Law Deals With It In India:
There is no explicit mention of homosexuality or hemophilia in any of the statute books of India. A person cannot be prosecuted for being a homosexual or hemophilic. But the sexual act of sodomy is a criminal offence. The major provisions of criminalisation of same-sex acts if found in the Section 377 of the Indian Penal Code (IPC) of 1860.

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment of either description for a term which may extend to ten years and should also be liable to fine.

The offence of homosexuality is read under this section as an Unnatural Offence. The term Carnal Intercourse used in this section refers to sexual intercourse between men or in other words, homosexual relationships. Section 377 of the Indian Penal Code, was enacted by the British in 1860.

The Indian law against homosexuality seems to be too harsh. The Constitutional validity of section-377 of IPC was challenged in the Delhi High Court as being violative of fundamental rights guaranteed under the Indian Constitution. Here it may be noted that, in practically all crimes against human body listed under the Indian Penal Code, some sort of physical violence or coercion is an essential element of crime. The only exception is in the favour of section-377, which criminalizes sexual activity that leaves no victims. In the history of the statute from, 1860 in 1992 there was only 30 cases in the High Courts and Supreme Court . " The small number of cases filed under this section shows that this section is redundant and outdated and needs to be repealed.

The Central Government has informed the Delhi High Court that homosexuality cannot be legalized in India as the Indian society is intolerant to the practice of homosexuality/lesbianism. To paraphrase, three things can be said about the government's stance:
[a] the state has not just a function to, but actually a duty to stop unnatural sex, or else the social order would break down, law loose its legitimacy et al;
[b] that our society does not tolerate homosexuality, and notwithstanding the universality of human rights or the universal applicability of our fundamental rights and freedoms, its criminalization is therefore justified; and
[c] that it is really not our thing, its something that happens out there in the west, we do not have to copy that. In other words the three pillars of the classic culture arguments to criminalize the likes of us.

Why Should Be Legalized:
Arguments in favour of Decriminalizing Homosexuality: Gay and lesbian rights activists from various parts of the countries were protesting for their rights and for decriminalizing the homosexual conduct. There is a big debate in our country too- whether it should be legalized or not. I am giving some of the arguments in favour of decriminalizing it, specifically in Indian context- in view of Section-377 of the Indian Penal Code.

(1)  It violates right to liberty guaranteed under Article-21 of the Indian Constitution

which covers private consensual sexual relations. The fundamental right to liberty (under Article-21) prohibits the state from interfering with the private personal activities of the individual. The concept of privacy is so broad that no comprehensive and all encompassing definition of the term can be given. In the case National Coalition for Gay and Lesbian equality V. Ministry of Justice , the South African court held that, Privacy recognizes that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. Even at the international level, the right to privacy has been recognized in the favour of lesbians and gay man.

(2)  Criminalization of homosexual conduct is unreasonable and arbitrary:

Infringement of, the right to equal protection before law requires the determination of whether there is a rational and objective basis to the classification introduced. There should be a just and reasonable nexus between the classification and the object sought to be achieved by the legislation. Section-377 of IPC, its legislative objective is to criminalize all the sexual activities which are against the order of nature, thus punishing the unnatural sex. Section-377 assumes that natural sexual act is that which is performed for procreation. Hence, it thereby labels all forms of non-procreative sexual act as unnatural. This gives a very narrow view to the distinction between the procreative and non-procreative sexual act. Hence, the legislative intent of creating a public code of sexual morality has no rational nexus with the classification created. Further the very object of the section is vague, unreasonable, arbitrary and based up on the stereotyped notion that sex is only for procreation. Now if this presumption is accepted is correct then, what justifies the policies of family planning and the use of the contraceptive devices

(3) Section-377 discriminates on the basis of sexual orientation:

forbidden under Article-15 of the Constitution. Article-15 prohibits discrimination on several grounds, which includes Sex. By prohibiting discrimination on the basis of sex, article-15 establishes that there is no standard behavioral pattern attached to the gender. The prohibition on non-procreative sexual acts imposed by section-377 prescribes traditional sexual relations upon men and women. In so doing the provision discriminates against the homosexuals on the basis of their sexuality and therefore constitutes discrimination on the basis of sexual orientation.

(4). Section-377 violates the enjoyment of civil laws and gay men and lesbians and leads to other adverse effects: Section-292 of IPC punishes Obscenity; the current definition of obscenity can lead it to incriminate the gay and lesbian writings. As male homosexuality is a criminal offence, the presumption is that it is something depraved and can corrupt the minds and bodies of the persons. In the prevailing atmosphere any writing about the lesbians and the gay men can be criminalized, as homosexuality is treated as something immoral or depraved. The workman's Compensation Act, 1923- provides that in case of death caused by injury at the work place, the dependents of the employee are entitled to receive the compensation from the employer, the dependents will include a widow, minor legitimate son, unmarried daughter, widowed mother and an infirm son or daughter.

Thus a gay or a lesbian couple cannot claim the benefits under this section. This is not an isolated example and there are other such Acts that are discriminatory towards homosexuals. The Provident Fund Scheme, 1952 and the Payment Of Gratuity Act, 1972 define family in such away that a lesbian or gay couple. I end this issue with a quote ?There are several sections in the Indian Penal Code which are anachronistic in a changed world. Section 377 is a prime example. As a matter of fact, Section 377 as it stands, would have made what Clinton did to Monica Lewinsky or rather what Monica Lewinsky provided to Clinton, an offence. I am being discreet, because after all, some things can only be dealt with orally and cannot be put down on paper! The crucial words are "against the order of nature." The possibilities are immense and the imagination can well run riot. Perhaps the way out is now to argue that nature and its various orders have themselves changed.

Why There Is Need For Legal Recognition:
A recent study of sexual practices in rural India by the United Nations Population Fund (UNFPA) found that `male-to-male sex is not uncommon. In fact a higher percentage of men in the study reported having male-to-male sex than sex with sex workers. This was true of both married as well as unmarried men. Close to 10 per cent unmarried men and 3 per cent married men reported having had sexual intercourse with other men in the past 12 months." The survey covered 50 villages in five districts of five states with feedback on sexual practices from close to 3,000 respondents and in- depth interviews on intimate habits from 250 people. The data is indicative of a reality the government is either unable or unwilling to see.

Love is love. The real threat to marriage is the alarmingly high divorce rate. Marriage is also a legal joining of two individuals. People who are not religious choose to get married in a registry office and not in church. Marriage shows the strongest commitment you can make to one another. Gay men and lesbians are just as human and have the same needs and desires as heterosexual human beings. I fail to see what God has to do with this Marriage in this instance is not religious, but a legal joining. Getting married is the ultimate way of showing your love and commitment to your partner, so why should gay people be deprived of this right. Who are we to sit and judge anyway. Same sex marriages should be legalized. If people find gay relationships contrary to their religion, it is up to them to refrain. Those who do not share their religious opinions should be free to make their own choice on this as on other issues. Gay men and lesbians are just as human and have the same needs and desires as heterosexual human beings.

The argument that same sex marriages should not be made legal "because they do not produce kids" is ridiculous. Should heterosexual couples over 50 not be allowed to marry as they cannot produce kids either? If two people love each other and want to unite their destinies, then it is a beautiful thing which should be celebrated. Whether it is called "marriage" or "life pact" does not matter. Same-sex unions harm no one; one's support or opposition to this is a matter of personal belief and morality, with which the government has no business to interfere.

The universality of Human rights demands that prevailing and dominant cultural and social norms cannot be invoked in a manner as to circumvent or restrain fundamental and constitutional rights. If we were to accept the government's arguments in the Delhi high court case, then many of the progressive legislations in my country would never have been enacted. For example, even today there are many men who think that tradition gives them a right to beat up their wives, or that they deserve to get a very fat dowry just because they were born with a penis. If we give in to these cultural beliefs, then there is nothing to turn round the legislations that we have made to stop violence against women or dowry and dowry related deaths.

On the basis of the whole discussion on the aspect of same sex marriage that is Should it be legalized or not. This is more of a religious debate then a political one. In which I have given my arguments in favour of decriminalizing it, I finally conclude by saying that homosexuality is not an offence, it is just a way of pursuit of happiness, a way to achieve sexual happiness or desire. I can see absolutely no reason, apart from blind prejudice, which prevents two gay people going through a civil ceremony which will give them the rights and securities which heterosexual couples enjoy. Marriage is a sign of commitment and love. If two men or two women want to show that commitment, how does that destroy or damage the ideals of marriage. In my view, it clearly demonstrates it. Aren't we living in an age which respects the individual's right to choose Isn't India supposed to be the land of the free In our society people have branded homosexuals as queer. Yet homosexuality is not new nor is it against the Indian culture, it has always existed and with much lesser prosecution, that under Section-377 of the IPC, which is based on British Offences against the Persons Act.

What should be the right approach to deal with same sex marriages, the issues are quite vast and complex. However, the desirability and feasibility of such an approach remain to be ascertained. In any event there is a growing conviction that our present method of criminalizing the same sex sexual activity neither helps the homosexuals nor protects the society in general. We thus need to legitimate same sex marriages in order to move forward in the direction of human rights.

Books Referred:

1. Dr. Durga Das Basu, Introduction To The Constitution Of India, Wdhwa Nagpur, 19th Edition, 2002.
2. V.N. Shukla, Constitution Of India, Eastern Book Company, 10th Edition, 2004.
3. S. Kumar, All India Criminal Major Acts, National Law Agency, Allahabad, 1st Edition, 1989.
4. Encyclopedia Of Criminology, Volume 2, 2003.

Article Referred:
1. Sherry Joseph, The Law and Homosexuality in India.
2. Robert J. Buchanan, Homosexuality in History.
3. Speech was given by Aditya Bondyopadhyay, legal consultant / Naz Foundation at the International Panel Discussion: Breaking the "cultural" straitjacket: why sexual orientation and gender identity are issues on the global south's agenda.

The author can be reached at: / Print This Article

# Ranbow Rights:
The decision of the US Supreme Court in Obergefell et al v. Hodges, Director, Ohio Department of Health, et al (2015) US No. 14-556, regarding the constitutionality of same-sex marriages is a welcome one.
# Decriminalization of consensual sex between adults
# Law & Morality Debate in the Context Of Suicide & Homosexuality
# Same Sex Relationship - Time for Legal Recognition in India
# Decriminalization of Homosexuality In India
# Same Sex Marriage: Is It The Time For Legal Recognition
Right of Foreign Homosexuals to have a Surrogate Child in India:
A recent news piece that has caught everyone’s eye is that an Israeli homosexual couple has got a surrogate child from India. Everywhere, people seem to be pleased about it, but when analyzed legally, it leaves us in a very befuddled state of mind.
Homosexuality - Questions On Basic Facets of Human:
The sexual attraction or the romantic behaviour among people belonging to same sex group leads to homosexuality. It could be either situational or enduring disposition.


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