Marriage between a man and a women who are of the same sex is known as same sex
marriage. The legal and societal reactions to same-sex marriage have ranged from
jubilation on the one hand to punishment on the other, despite the fact that it
has been prohibited by law, religion, and custom in the majority of countries
around the world.
The sexuality of humans is complex. The complexity of sexuality is confirmed by
accepting the distinction between desire, behaviour, and personality. The
complexity of the challenges is indicated by the possibility that these
dimensions may not always be constant among persons.
Contrary to the current
popular usage, which supports lesbian, gay, bisexual, and transgender (LGBT),
which emphasizes on identities, terminology like homosexuality,
heterosexuality, bisexuality, and trans- sexuality are used in medical science
to refer to all connected issues.
It has been challenging to estimate the prevalence of homosexuality in India due
to a number of factors, including the stereotype, societal stigma, and the
inability to discern between desire, behaviour and identity.
I'm reminded of a tale about a washing man and donkey as we discussed legalizing
same sex unions. with a bulky cargo of garments on his back and a distance
between his home and the pond, the donkey bulked at moving. A carrot was
attached to a stick by the washer man, and the stick was then tied in front b
of the animal's mouth.
The donkey persisted in his pursuit of the expensive
produce, but as he advances, the carrot remains out of reach. The demonstrates
how some laws persistently seek the carrot of the moral ideal, which is
relevant to the study of law. Isn't it about time we accepted the fact that gays
are like you and me ?
Although there are no official statistics on the LGBT population in India, the
Indian government provided data before the supreme court in 2012 that indicated
there were roughly 2.5 million gay persons in the country. only those people
who have self-declared to the ministry of health and family welfare are used to
calculate these statistics. Given that many LGBT Indians live in the closet out
of fear of prejudice, the number of people who have concealed their identity may
be substantially greater.
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,
you can't help it. An increasing number of gay groups throughout the country and
serious thinking among them is seen in India in the last few years.
The question of whether same-sex marriage should be permitted is more religious
than political. Although I think that a man and a women's marriage is a sacred
connection, I also think that our nation was built on the idea that everyone has
the freedom to pursue their own happiness. Additionally, I believe it is
acceptable if a man marries another women if it makes them happy. I don't think
it has a bad impact on anyone.
India's history with homosexuality spans many decades. The origins of
homosexuality date back to the Rig-Veda era in 1500 BC. According to the "Kama
sutra," Hindu lords and Muslim Nawab's used to maintain harems (young lads ).
However, these experiences became to be associated with hatred with the rise of
Brahmanism and later British Colonialism. The Aryan invasion increased
patriarchy's power and started to stifle homosexuality. Numerous physical and
mental punishments, beatings, and forms of torture were inflicted upon
homosexuals. Homophobia eventually resulted from this, and it developed through
From that point on, homosexuality started to decline. In India, it has
long been stigmatized. Marriage is typically referred to in personal laws as a
sacrament and the union of two souls between individuals of different sexes.
Same-sex partnerships are seen as immoral and against religious and cultural
norms. Marriage is a private subject determined by one's religious beliefs,
hence gay and lesbian unions are viewed as unholy.
In India, there is a popular
misconception that is a component of western culture and an intrusive foreign
influence. But it can't just be seen as a western custom, as similar ideas can
be found in our ancient books and scriptures. To defend the rights of gays and
lesbians, numerous states all over the world have passed anti-discrimination or
equal opportunity laws and regulations. the rights of lesbians and homosexual
people were first protected by a constitution in South Africa in 1994.
regulations exist in Canada, France, Luxembourg, Holland, Slovenia, Spain,
Norway, Denmark, Sweden, and New Zealand. The US Supreme Court ruled in 1996
that no state could enact laws discriminating against gays. As of yet, there
have been no such progressive developments in India, and gays continue to be
subjected to various forms of violence that are encourage by the government and
There are three main reasons why the topic of gay behaviour has recently gained
attention in legal and political debates:
- The sexual offence acts 1967, as revised in 2000, and similar measures
in various other nation have liberalized the law and changed social views,
erasing the stigma associated with homosexuality to a larger extent.
- United states, has become more radical, calling for the elimination of
all types of homophobic prejudice and even the legislation of same-sex
- The development of HIV/AIDS, which has been mostly attributed to male
homosexual Lesbian and gay right movements, particularly in the conduct n
western nations, has sparked charges and denials, frequently of a hostile
nature. In addition to Canada,Spain, Belgium, and the Netherlands also permit
same-sex unions. In nine nations around the world, same-sex conduct carries the
Arguments That Do Not Support It Being Legalised:
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. Those people who are against it base their arguments on their respect
for natural law and religion. Because they do not produce children, some
individuals do not regard them as natural. IF homosexual marriage is permitted,
is it sacred?
Genesis contains no references to Adam and Steve; rather, God
created Adam and Eve. Why allow gay marriage when you're breaking God's law?
There would only be one sex, not two, if nature preferred that same-sex
individuals coexist. Opposing sex marriage is the foundation of our culture. If
homosexuals marriage is acceptable, why can't I wed my sister, my pet, or my
cousin? Do I not have the same rights as gay people, or are they suddenly more
important than us? Remember that the law has certain requirements for this. It
was developed to preserve the social fabric. It violates the countries laws,
which have been in place for many years and where constructed commandments as a
How Law Deals With It In India:
Haemophilia or Homosexuality are not expressly included in any of India's
statues. A person cannot be put on trial for having a Haemophilia or being
homosexual. However, sodomy as a sexual act is illegal. The Indian Penal Code of
1860 has section 377, which contains the main provisions for the criminalisation
of same-sex conduct.
Section 377 of the IPC constitutionally was contested before the Delhi High
Court on the grounds that it infringed upon fundamental rights protected by the
Indian constitution. It should be emphasized that physical force or coercion is
a necessary component of nearly every offence against human body stated in the
Indian Penal Code. The lone exception is in favour of section 377, which makes
it illegal to engage in sexual conduct without harming anyone.
Only 30 cases
were heard by the High Courts and Supreme Court during the whole history of the
Act, which dates from 1860 to 1992. The minimal amount of cases brought under
this section demonstrates that it 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.
Why It Should Be Legalised?
Gay and Lesbian rights activists from various parts of the countries were
protesting for their rights and for decriminalising the homosexual conduct.
There is a big debate in our country too:
Whether it should be legalised or not.
I am giving some of the arguments in favour of decriminalizing it.
- It violates right to liberty guaranteed under Article-21 of the
Which addresses discreet, consensual sexual interactions the state is
not allowed to interfere with an individual's private, personal affairs
under Article 21 of the constitution, since privacy is such a broad
concept it is impossible to establish an exhaustive and all-inclusive
definition of it.
In the case National Coalition for Gay and Lesbian Equality v. Ministry
of Justice, the South African court ruled that privacy recognises that each of us has a right to
a space of intimate privacy and autonomy that enables us to form and nurture
human relationships free from outside community interference. Lesbians and gay
men have their right to privacy upheld even on an international scale.
- Criminalisation of homosexual conduct is unreasonable and arbitrary:
rational and objective basis for the proposed classification must be established
in order to determine if the right to equal protection before the law right to
equal protection before the law has been violated. The classification and the
goal that the law is trying to accomplish should have a just and reasonable
The legislative intent of section 377 of the IPC is to penalize
unnatural sex by making all sexual behaviors that go against the natural order
of things illegal. Section 377 makes the assumption that childbearing is the
sole purpose of natural sexual activity. As a result, it declares all non-
procreative sexual acts to be unnatural.
The contrast between procreative and
non-procreative sexual act is shown in a very limited way by this. As a result,
there is no logical connection between the legislative goal to establish a
public code of sexual morality and the new classification. Furthermore, the
section's entire purpose is undefined, illogical, and predicated on the outdated
idea that sex is primarily used for reproduction. What therefore supports family
planning program's and the use of contraceptives if this presupposition is
believed to be true?
- Section-377 discriminates on the basis of sexual orientation:
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
- 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.
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
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
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
Male-to-male intercourse is frequent, according to a recent United Nations
Population Fund (UNFPA) survey of sexual practices in rural India. In fact, more
guys in the research admitted to having sex with other men than with sex
workers. Both married and single men could agree on this. A little over 10% of
single males and 3% of married men reported having sex with another man in the
previous year. 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
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
claim that same-sex unions shouldn't be permitted "because they do not produce
kids" is absurd. Should older heterosexual couples who are unable to have
children be prohibited from getting married? It is a wonderful thing to
celebrate when two people share a deep love for one another and desire to bring
their fates together.
Whether it is referred to as a "marriage" or "life pact"
is irrelevant. A person's support or opposition to same-sex unions is a question
of personal belief and morality; the government has no business interfering in
such matters. Same-sex unions do no harm to anyone.
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
legislation that we have made to stop violence against women or dowry and dowry
On the basis of the overall debate over whether same-sex marriage should be
legalized. This discussion is more religious than political. After presenting my
reasons in favour of decriminalizing it, I come to the conclusion that
homosexuality is not a crime; rather, it is merely a means of achieving sexual
fulfillment of one's desires.
I see no other excuse than blind prejudice that
would prevent two gay individuals from being married in a civil ceremony that
would grant them the same protections and entitlements as heterosexual couples.
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
Offenses against the Persons Act.
The challenges surrounding same-sex marriages
are extremely diverse and complicated, so what should be the best course of
action? However, it is still unknown whether or not such a strategy is desirable
or even feasible. In any case, there is a growing belief that the way we
currently punish same-sex sexual activity neither helps homosexuals nor
safeguards society as a whole. Thus, in order to advance in the area of human
rights, same sex weddings must be made legal.
- https://shodhganga.inflibnet.ac.in/bitstream/10603/191572/18/18_chapter 6.pdf
- Dr. Durga Das Basu, Introduction To The Constitution Of India, Wdhwa Nagpur, 19th Edition, 2002.
- V.N. Shukla, Constitution Of India, Eastern Book Company, 10th Edition, 2004.
- S. Kumar, All India Criminal Major Acts, National Law Agency, Allahabad, 1st Edition, 1989.
- Encyclopedia Of Criminology, Volume 2, 2003.
- Shivani Singh, Second - Year (B.A L.L.B) Student of Bharati Vidyapeeth New Law College Pune
- Ayuj Agrawal, fourth -Year (B.B.A L.L.B) Student of Bharati Vidyapeeth New Law College Pune.