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How To Legalize Same-Sex Marriage In India, Without Infringing With Current Guardianship And Inheritance Laws?

6th September 2018 is not just a random date in history. It witnessed a jubilant celebration among the suppressed members of LGBTQIA+ in India. It is the day when finally, Indian homosexuals were freed from the 200 years old English handcuffs. It is the day when after a long battle s.377 of the Indian Penal Code, 1860, was amended to decriminalize consensual same-sex relationships.

Not just the judgment was the beam of light after the decade of darkness, even the statement of Justice Indu Malhotra, "History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries", showed us a ray of hope for the future of LGBTQIA+ rights in India.

The decriminalization of homosexuality is not a one-time event, it took decades of fighting against the 200 years old British rule, even though this is a huge milestone concerning LGBTQIA+ rights, this is not the end. Rather it should be seen as the beginning of a new era in the fight for LGBTQIA+ rights in India. It won't be an exaggeration to say that repealing the age-old inhuman colonial law, is just the tip of the iceberg and the LGBTQIA+ community in India has a bigger struggle ahead of them.[1]

Currently, a petition hearing is going on in the apex court regarding the topic. The bench headed by CJI DY Chandrachud has yet to come up with a final verdict.

Even if it is a common realization that homosexuals are human too and deserve to be treated equally, a bigger question arises, How To Legalize Same-Sex Marriage In India, Without Infringing With Current Guardianship And Inheritance Laws? Because as of now, the laws related to marriage, succession, and inheritance are based on the notion that marriage is the union of men and women. They specifically deal with the concept of mother and father, husband and wife. So, if same-sex marriage is even legalized, a bigger question of inheritance and guardianship will still lie. Amending all those laws will be a tedious and time-consuming task.

Therefore, in this article, I will try to come up with some solutions to this problem and find the middle ground so homosexuals can enjoy their rights without completely altering the existing laws.

Historical background
Pre-Columbian era: India has a long cultural and religious history that embraces sexual orientations and gender identities that are diverse. Hindu legend, for example, contains stories about multiple relationships between the same sex and gender non-conventional. Some ancient writings, such as the Kama Sutra, discuss the desire for same-sex and non-binary genders. Also, in Mahabharata, "Shikhandi" was born a woman but identifies as a man and married a woman. However, these references were primarily focused on historical or mythological contexts and did not lead to legal recognition or societal acceptance of same-sex marriages.

Colonial era: During the British colonial rule of India, which was instated through the Indian Penal Code of 1860, Section 377 criminalized "illegal sexual conduct" including homosexual acts. This legislation was passed by the previous country, which was then part of the British Empire after India gained independence in 1947.

Post-Independence era: Same-sex relationships were severely disfavoured during this period; they were considered illegal and socially unacceptable in India. Section 377 of the Indian Penal Code still criminalized consensual homosexual acts, which made it difficult for LGBTQ+ individuals to publicly express their identities and receive legal recognition for their relationships.

From the 1990s, activists, and organizations began advocating for the decriminalization of homosexuality and the recognition of LGBTQ+ rights.

One of the most significant legal battles occurred in the 2000s when the Naz Foundation, an NGO, filed a petition challenging the constitutionality of Section 377. The legal dispute was long and arduous, and in 2009, the Delhi High Court ruled that Section 377 infringed on the constitutional rights that were guaranteed by the Indian Constitution. This landmark decision in Naz Foundation v. NCT of Delhi[2]; effectively decriminalized homosexual acts between adults that were consensual.

However, in 2013, the Supreme Court of India in Suresh Kumar Kaushal v. Naz Foundation[3]; overturned the decision of the Delhi High Court and reinstated the criminalization of homosexual acts by reclassifying the 377th Section as a crime. This choice was met with widespread dismay and led to renewed activism and advocacy for LGBTQ+ rights.

In 2017, in Puttaswamy v. UOI[4], the SC stated that the Right to privacy also includes the sexual orientation and gender identity of an individual.

The legal dispute reached its highest point in 2018 when a five-judge Supreme Court decided a landmark case. In Navtej Singh Johar v. Union of India[5], the court declared that Section 377 was unconstitutional because it criminalized consensual adult same-sex relationships. The decision essentially decriminalized homosexuality and facilitated greater LGBTQ+ rights in India.

While same-sex marriages are not currently legal in India, the Supreme Court's 2018 ruling that recognized same-sex relationships potentially opens the door for future development in this area. The decision emphasized the principles of equality, non-discrimination, and privacy, which could lead to future legal recognition of same-sex marriages.

And with the current hearing going on in SC, it gives hope to all the homosexuals in India, for their better future in the country.

Comparative Study Of India And Other Countries Concerning Same-Sex Marital Rights

Around the world, countries are in different situations regarding homosexuality and same-sex marriage. Many countries are very accepting of this relationship and legalize same-sex marriage, while many countries do not approve of homosexuality and even criminalize it. Government officials face this problem and are treated separately from gay associations.

Sometimes, they openly condone the practice, in some cases supporting the legal recognition of these unions on the grounds of preventing discrimination against same-sex citizens. For other cases, it decided to give moral equality to the legal establishment of same-sex partnerships and the same right to adopt children. As a result, different countries have different ways and approaches while dealing with homosexuality.

The definition of homosexuality has changed significantly over the past century. Since 1974, homosexuality has ceased to be an abnormal behavior and has been removed from the category of mental disorders. Since then, homosexuality has been criminalized in several countries. Various countries around the world have adopted anti-discrimination or equal opportunity laws and policies to ensure homosexual rights.

Changes to gay marriage and the ban sparked international controversy in the late 1990s and early 2000s. Today, same-sex marriage is legal in 25 countries, including the Netherlands, Belgium and Canada, Brazil, South Africa, and Germany. This means that approximately 155 million or approximately 2.5% of the world's population live in areas where there is same-sex marriage.

Although homosexuality is a serious crime in more than 70 countries, it is punishable in Afghanistan, Mauritania, Iran, Nigeria, Pakistan, Saudi Arabia, Sudan, the United Arab Emirates, and Yemen, and life imprisonment in Burma, Bhutan, Georgia, and Indonesia., Maldives, Singapore, United Arab Emirates, and Yemen. Homosexuals often have different legal status depending on the country. In the UK, for example, consensual homosexual sex between adults is not illegal if both are of the age of 21

So far, 30 countries and territories have passed national laws allowing gays and lesbians to marry, mostly in Europe and America. In Mexico, some jurisdictions allow same-sex couples to marry, while others do not.

Below is a list of countries that have legalized the practice:

  • Costa Rica (2020)
  • Northern Ireland (2019)
  • Ecuador (2019)
  • Austria (2019)
  • Australia (2017)
  • Malta (2017)
  • Germany (2017)
  • Colombia (2016)
  • United States (2015)
  • Greenland (2015)
  • Ireland (2015)
  • Finland (2015)
  • Luxembourg (2014)
  • Scotland (2014)
  • England and Wales (2013)
  • Brazil (2013)
  • France (2013)
  • New Zealand (2013)
  • Uruguay (2013)
  • Denmark (2012)
  • Argentina (2010)
  • Portugal (2010)
  • Iceland (2010)
  • Sweden (2009)
  • Norway (2008)
  • South Africa (2006)
  • Spain (2005)
  • Canada (2005)
  • Belgium (2003)
  • The Netherlands (2000)

Difficulties in legalizing same-sex Marriage in India

  1. Cultural and Religious Beliefs:
    India is a country with diverse cultural and religious beliefs and many of these beliefs are against same-sex relationships and marriage. This resistance is often deeply embedded in society and can make it difficult to change attitudes toward same-sex marriage.
  2. Political Considerations:
    Same-sex marriage is a politically significant issue in India, and politicians may be reluctant to support it for fear of alienating some constituencies.
  3. Lack of public support:
    Although attitudes towards same-sex relationships are changing in India, there is still a large part of the population that opposes same-sex marriage. A lack of public support can make it difficult to gain political momentum to legalize same-sex marriage.
  4. Lack of awareness and education:
    There is still a lack of awareness and education about same-sex relationships and marriage in India. This can lead to misunderstandings and misconceptions about the issue, making it difficult to find support for legalizing same-sex marriage.
  5. Legal Challenges:
    Same-sex marriage is not recognized in Indian law and any attempt to legalize it will require major legal changes. Especially in inheritance and succession laws. It can be a long and complicated process, and there can be legal challenges from opponents of same-sex marriage.

This article will focus solely on the legal challenges. It will deal with how to overcome legal challenges, concerning inheritance and guardianship laws, to legalize same-sex marital rights in India.[7]

Legal Issue: Why is it difficult to amend inheritance and guardianship laws in India?

There are several reasons why it is difficult to change the laws of inheritance and guardianship in India:
  1. Cultural and Religious Beliefs:
    Inheritance and guardianship laws in India are deeply rooted in cultural and religious beliefs. Any changes to these laws are often met with opposition from various communities and religious groups.
  2. Political Considerations:
    Inheritance and guardianship laws are often seen as a sensitive issue in India and any change to these laws can have political implications. Political parties may be reluctant to support changes that may alienate certain constituencies.
  3. Lack of consensus:
    There is often a lack of consensus among parliamentarians and legal experts on how to change inheritance and inheritance laws. This can make it difficult to pass widely accepted legislation.
  4. Complexity of Legal System:
    Guardianship and inheritance laws in India are complex and vary depending on individual religion and community. This complexity can make it difficult to draft laws that are comprehensive and fair to all parties involved.
  5. Resistance of Traditionalists:
    Traditionalists may oppose changes in the laws of inheritance and guardianship because they feel that these laws have existed for centuries and should not be changed. This can make it difficult to find support for reforms.
  6. Lack of political will:
    Although there is a consensus among DPRD members and legal experts, there may be a lack of political will to carry out reforms. This may be due to a variety of factors, including competing priorities and limited resources.
  7. Lack of public awareness:
    Many people in India are not aware of their heritage and heritage rights, which can make it difficult to build public support for this reform.
  8. Gender bias:
    Guardianship and inheritance laws in India are often biased against women, who can be deprived of property and shares. This conflict can make it difficult to apply reforms that are fair to all genders.
  9. Legal Challenges:
    Any attempt to change guardianship and inheritance laws in India may face legal challenges from people who oppose the changes. This may further delay the reform process.
  10. Lack of resources:
    India is a large and diverse country, and amending inheritance and inheritance laws may require a lot of resources. This can make it difficult to implement reforms even if the law is passed.

Therefore, if we want to legalize same-sex marriage in India, we need to find a way, which doesn't affect the inheritance and guardianship laws in India.

Ways to overcome legal issues: How to legalize same-sex marriage in India, without amending inheritance and guardianship laws:

  1. Establish a separate legal framework for same-sex couples
    One possible approach to legalize same-sex marriage in India without changing inheritance and guardianship laws is to create a separate legal framework for same-sex couples. This may include the creation of a new law recognizing same-sex unions and providing them with legal recognition and protection.

    This approach will allow homosexuals to enjoy marital rights, without disrupting the pre-existing laws. The separate legal framework will not only discuss marital rights and duties but also discuss inheritance and guardianship for same-sex couples. So, in this way, homosexual couples can come under the ambit of an entirely different law while the pre-existing laws remain as it is. This will help in dealing with legal obstacles easily and help homosexuals to get legal recognition quickly.
  2. Civil partnership or registered partnership
    A civil partnership or registered partnership system can be seen as an alternative to marriage, providing legal recognition and rights for same-sex couples without amending the law of inheritance and guardianship. In this approach, a separate legal framework will be created to allow same-sex couples to enter into civil partnerships or registered partnerships. It would provide for the legal benefits and responsibilities associated with marriage without changing the law relating to inheritance and guardianship.

    This approach is followed in many countries including France, where a civil partnership agreement was introduced in 1999 to give legal recognition to same-sex couples. The UK also legalized partnership agreements to give legal recognition to same-sex couples. Civil partnership agreements provide many of the same rights and protections as marriage, including inheritance rights, social security benefits, and medical decision-making rights for one partner.[8]
  3. Use of court rulings, and guidelines to legalize same-sex marriage
    Another approach to ensuring same-sex marital rights in India, without interfering with existing laws, is to use court rulings and guidelines to legalize same-sex marriage. The court can rule in favor of homosexual couples, and/or establish guidelines until legislation comes up with the proper legal framework. So, that same-sex couples don't have to wait any longer to be treated fairly and equally.

    In the United States, same-sex marriage has been legalized through state and federal actions. Several states have legalized same-sex marriage through court decisions or legislation, and the federal government recognized same-sex marriage through the Supreme Court's 2015 Obergefell Hodges decision.[9]

    It won't be the first time India is using this approach. India has already used this approach in Vishaka and Ors. v State of Rajasthan[10], where the court came up with Vishaka guidelines for sexual harassment at the workplace until the legislation came up with the proper legal framework for the same.
  4. Interpret the existing law to allow same-sex marriage
    An alternative approach to legalizing same-sex marriage in India, without amending inheritance and guardianship laws, is to interpret existing laws to allow same-sex marriage. For example, the Indian constitution guarantees equality and non-discrimination (under Art. 14-18), and this can be used to argue that denying same-sex couples the right to marry is unconstitutional.

    In 2017, in Puttaswamy v. UOI[11], the SC stated that the Right to privacy also includes the sexual orientation and gender identity of an individual. This can help with the liberal and wider interpretation of the Constitution, thus helping homosexuals, get their rights.

    This approach has been adopted in several countries, including South Africa, where in 2005 the Constitutional Court ruled that the ban on same-sex marriage was unconstitutional and violated the right to equality.[12]
  5. Using International Human Rights Law to Support Legalization of same-sex marriage
    International human rights law can be used to support the legalization of same-sex marriage in India. India is a signatory to several international human rights treaties that recognize the rights of LGBTQIA+ people, including the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

    This treaty recognizes the right to marry and the right to non-discrimination, and denying same-sex couples the right to marry can be used to argue that international human rights law is being violated.
  6. Gradual reforms
    Even though this article aimed to find alternatives to legalize same-sex marriage in India without changing guardianship and inheritance laws, we can't ignore that laws are meant to be amended from time to time, to meet the need of a dynamic society. A law that doesn't change to fit society, becomes stagnant and irrelevant at a point in time, in the future. Therefore, while discussing the alternatives, we shouldn't ignore the need for amendment in inheritance and guardianship laws, to fit modern-day society.

    A more incremental approach could involve legalizing same-sex marriage while leaving inheritance and custody laws unchanged. This will recognize the importance of marriage equality, thus more discussion and agreement on inheritance and custody issues. The gradual reform process will involve discussion and specific legislation for each party, with specific legal, cultural, and social consequences in mind.

    Considering every factor, instead of going for quick amendment in the laws, it is better to approach a slow and gradual approach. And in the meantime, take the help of alternatives to ensure that homosexuals aren't deprived of their rights in India.

Legalizing same-sex marriage in India without changing heritage and legal guardianship poses a unique set of challenges. However, it is possible to promote marriage equality without temporarily changing the law of inheritance and guardianship by considering alternative approaches such as constitutional interpretation, special laws, civil partnerships, or a gradual process of reform.

This approach will require careful legal analysis, legislative action, and dialogue among various stakeholders to ensure equal rights and recognition for same-sex couples. Ultimately, legalizing same-sex marriage in India will depend on specific actions by lawmakers, courts, and activists across the country, along with protecting inheritance and guardianship laws.

  2. 160 Delhi Law Times 277
  3. (2014) 1 SCC 1
  4. (2017) 10 SCC 1
  5. AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016
  10. AIR 1997 SC 3011
  11. (2017) 10 SCC 1

Award Winning Article Is Written By: Ms.Arundhati Chatterjee
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