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Legal Recognition Of Same-Sex Marriages: A Comparative Study

Gay and lesbian unions have been treated like an "elephant in the living room" by our law-making institutions. Everyone knows that they exist-their children are in schools, their deeds are recorded in county offices, their domestic partnership certificates are filed with local clerks, and their battles over custody, visitation and property distribution are witnessed in the courts-yet, every state has refused to recognize gay and lesbian unions, and instead our legislatures and courts skirt around their perimeter.

As a result, our legal system has created a patchwork of rules and rights applicable to couples of the same-sex and their children that often vary depending on the county, city, or judicial district in which they reside, or the institution at which they are employed. This inconsistent body of law creates instability, uncertainty and chaos, conditions which are unacceptable in a nation where due process and liberty are paramount values. In this paper, we have discussed various approaches to same sex marriages in different jurisdictions and analysed it with Indian Jurisprudence.

Research Objective
This study aims to investigate ither alternatives to marriage for same sex marriages vis-รก-vis a global perspective and Indian Perspective.

Research Methodology
The authors have used Doctrinal methodology in the present paper.

Doctrinal (or "black letter") methodology refers to a way of conducting research which is usually thought of as "typical legal research". A doctrinal approach to research will focus on case-law, statutes and other legal sources. It differs from other methodologies in that it looks at the law within itself; a pure doctrinal approach makes no attempt to look at the effect of the law or how it is applied, but instead examines law as a written body of principles which can be discerned and analysed using only legal sources.

Marriage is a social institution that brings a couple together to form the sub-unit of a society, family. It's a steady union in which a couple is allowed and rather expected to stay together without compromising their standing in society. Marriage being a social institution is never entirely about the relationship of the two people rather; it has effects on the entire community and subsequent generations. Conventionally, the marriage is between two people of opposite genders refered to as heterosexual marriage.

After decades of struggle, restrictions and taboos being imposed on Homosexual couples they have got some recognition. However, Marriage laws exclusively recognize heterosexual unions, denying homosexual couples access to public subsidies as well as sociopolitical acknowledgment enjoyed by married couples.

Today's adversaries of same-sex unions say that the objective of marriage is to reproduce. Notwithstanding countless of rational rebuttals (for instance, Why is wedding permitted amongst infertile individuals, persons over the age of reproducing, and anyone who does not wish to reproduce?), this issue persists. Since it is based on emotion and intuition, the contention is impregnable to reasoning. An emotional assertion can only be adequately countered by another emotional assertion, not by a reasonable argument.

Countries that severely penalised same-sex marriages in the early twenty-first century tended to be in more conservative sections of the world, particularly Islamic theocracies and parts of Asia and Africa. They frequently outlawed actions that would be considered moral rather than legal in other countries.

The judicial systems of many predominantly Muslim countries criminalise.1 Northern Europe and countries with significant cultural ties to the region had the most acceptance of same-sex couples. In 1989, Denmark became the first country to introduce registered partnerships, a simplified version of marriage, for same-sex couples. Soon after, similar laws were enacted, with specific nomenclature (e.g., civil union, civil partnership, domestic partnership, registered partnership) being used to designate same-sex partnerships.

The author of this article contends that it is not enough to just strive for decriminalizing same-sexual carnal activities; it is also important to seek legal recognition for same-sex couples and analyze the many possibilities that may be taken to achieve such legal recognition.

Because this isn't just a theoretical legal matter, but one that elicits intense debate and has ramifications for many people's daily lives, tactical ramifications are suggested accordingly.

Alternative To Marriage, A Foreign Approach

One possibility is to have same-sex couples legally recognised as civil unions or partnerships rather than marriages.2 Civil unions are recognised in several states across the United States, as well as other Latin American and European countries, Australia, and New Zealand. Several civil union models have been implemented in these areas.3

Domestic partnerships are only recognised in some states in the United States of America by municipal councils and private businesses that provide spousal benefits to their employees' same-sex spouses. In countries like Germany, those who enter a civil partnership have only limited legal rights. The legal advantages are limited to legislation concerning taxes, pensions, and adoptions.

Other versions, such as the one adopted in Vermont in response to a Supreme Court of Vermont directive,5 provide partners with the same legal protections as married couples.6 The Supreme Courts of Vermont and New Jersey have recently decided that same-sex couples cannot be denied the benefits of marriage, but that the state can decide whether the benefits should be delivered inside the framework of a marriage or through a parallel domestic partnership.7 The essence of such "separate but equal" organisations should be analogous to marriage, with the same legal safeguards.8

This paradigm has the advantage of facing less opposition, at least from a religious standpoint, and avoiding the divisive debate over whether "marriage" must be heterosexual.9 The law governing civil partnerships and the recognition of same-sex weddings was passed in France in 2013. Civil unions were legalised in England and Wales in 2004, and same-sex marriages were legalised in 2013.10 Allowing civil unions while prohibiting marriage for same-sex couples is discriminatory in and of itself, because it provides a group of people with a lesser status alternative than marriage.

Marriage isn't only a legal agreement between two people who seek to benefit from one other's legal rights and benefits. Its dual goal is to provide legal and social recognition to a partnership. Marriage gives the spouse a greater status than other family members, as well as various rights such as decision-making powers in the event of incapacity, death registration, and so on.11

Furthermore, just because two institutions have the same legal rights does not imply that they are on an equal footing. A legal marriage lacks the historical, cultural, and social significance of marriage as an institution. Same-sex couples value marriage's social status just as much as heterosexual couples do. As a result, although providing them with the identical legal rights, a law that exclusively allows same-sex couples to join civil unions will treat them differently based on their sexual orientation.

The Connecticut Supreme Court ruled that the state's 'separate but equal' system was unconstitutional for these reasons.12 Furthermore, accepting civil unions as a substitute for marriage entails acknowledging that same-sex partnerships are not equal to heterosexual relationships. It would imply admitting two types of marriage, according to US Supreme Court Justice Ginsberg: a "complete marriage" and a "skim-milk marriage."13

Same Sex Marriage Vis-a-Vis USA

Since at least 1993, the subject of whether or not same-sex couples should be permitted to marry has roiled politics in the United States. In that year, the Hawaii Supreme Court considered a case in which the plaintiffs claimed that the state's refusal to grant marriage licences to same-sex couples violated those couples' legal rights to equality. The state, on the other hand, maintained that it had a strong interest in banning same-sex marriage because it would harm the public welfare essentially.

The Defense of Marriage Act was passed in 1996 when many Americans considered the Hawaii court verdict as posing a serious danger to social stability. (DOMA). This measure specified that same-sex marriages would not be recognised by the federal government for surviving spouse Social Security payments or employment-based benefits for federal employees' partners.

According to American legal scholars and proponents of same-sex marriage, the equal protection provision of the US Constitution protects the basic right to marry. The procreative viewpoint was prominently represented in opposition arguments, with biblical interpretation or other religious doctrine commonly referenced to support claims that marriage should only be open to heterosexual couples as defined.

Between December 2013 and August 2014, federal judges overturned 14 state restrictions on same-sex marriage. In all but two of those states, the convictions were stayed, but several of them allowed same-sex marriages for a little time before outlawing them. In February 2014, Attorney General Eric Holder announced that those weddings will be recognised by the federal government, and he announced a Department of Justice policy that would provide equal protection and respect to all valid marriages in the United States.

In January 2015, the Supreme Court agreed to hear an appeal from the Sixth Circuit Court of Appeals, which upheld state statutes and constitutional amendments barring same-sex marriage and refusing to recognise same-sex weddings performed in other states. The Supreme Court overruled both of the Sixth Circuit's findings in Obergefell v. Hodges, making same-sex marriage legal in all 50 states.

Future Of Same Sex Marriage Across The Globe

The impact of a country's institutional forces on the creation of rights for same-sex couples is considerable. The courts played an important role in countries like Canada, South Africa, and the United States that have federal political systems and strong judiciaries. Due to institutional rules, voters in another group of countries, such as Switzerland and many U.S. states, were able to have a direct voice in whether legislation was passed or rejected. In other cases, national pluralism and a tendency for secularism and religion to entwine in subtle and unexpected ways exacerbate the range of views on sexuality and the purpose of marriage.

The Indian Perspective
Personal laws including the Hindu Marriage Act of 1955, the Indian Christian Marriage Act of 1872, and the Muslim Personal Law (Shariat) Application Act of 1937, among several others, regulate weddings in the Nation. Whilst same-sex and queer weddings are not formally recognized in India, such unions are not without legal backing.

There are strong pragmatic incentives, to pursue legal, societal and political acceptance for same-sex unions. Certain legislative privileges afforded to married couples, such as inheritance, maintenance, and retirement rights, are not offered to same-sex unions. Financial advantages from legislation such as the Employment Provident Fund Scheme of 1952 and the Workmen's Compensation Act of 1923 are only granted to bloodline or married relatives.14

Personal Laws In India

Furthermore, Single people and unmarried couples have struggled to adopt since the Central Adoption Resource Authority (CARA) released adopting rules which then also affects the Homosexual Couples.15

The mentioned strategies can be used to achieve validation of same-sex marriages under Hindu personal laws by firstly, interpreting established legislation to legitamise same-sex marriages, secondly analyzing that the LGBT congregation encompasses a segregated community whose social norms and practices permit same-sex marriages, thirdly, ammending the Hindu Marriage Act, 1956 ('Act') to legitamise same-sex relations on the grounds that it would otherwise be rendered arbirary and unconscionable, or fourthly, ammending the Personal Law altogether to include the same-sex marriages.16

Since this Code is gender-neutral besides the phrases bridal and groom, it is conceivable to claim that same-sex spouses can have their weddings solemnized underneath if one of them is designated as the bridal and the other as the bridegroom.17

This perception will reaffirm conventional despotic gender norms and prejudices that men and women are fundamentally distinct, that 2 individuals in a marriage have pre-determined responsibilities, so even same-sex unions must admit conventional roles in order to get married, at a period when opposite sex spouses' unions are being re-designed to make each other more equivalent.18

Another strategy would be to ask the courts to interpret the clauses of Hindu and Christian personal laws so that same-sex marriages are recognized, arguing that interpreting these legislation as forbidding same-sex marriages would yield the subject to the provisions illegitimate and arbitrary because they discriminate on the basis of sexual orientation.

It is also pursued that choosing a spouse is a very personal decision about which anyone, particularly the government, shall have no say. Thus, the simple contention in support of same-sex union is that if two individuals wish to marry, they should be able to accomplish so without discrimination based on their sexual orientation. Citizens are excluded from the advantages and respect that comes with that commitment, they are treated as second-class citizens and demeans their worth.

It is important to note that in India, same-sex unions aren't prohibited. Despite this, Indian personal laws do not expressly allow same-sex unions and, in fact, demonstrate a profound heterosexual prejudice by using terminology that exclusively indicate a heterosexual union.

Legislation, particularly on a subject matter where there is expected to be strong resistance, is anticipated to be prolonged. Although it can be claimed to encroach on religious liberties, it might be criticized since it allows for the legalization of non-marital live-in couples, both heterosexual and homo-sexual, which is assumed to against Indian tradition. Thus, even from a strategic standpoint, obtaining laws to recognize civil unions does not appear to be the best course of action.

Same-Sex Marriages Under The Special Marriages Act

Seeking an alteration in the Special Marriage Act of 1954 ('SMA') to allow same-sex unions is an approach that shall not raise religious objections. The SMA is a secular law that allows persons of different religions or those who do not want to be constrained by their own regulations to marry.19 A Marriage Officer documents the marriage rather than a religious ceremony. The SMA appears to apply to heterosexual unions in its current version, since it stipulates that the male must be twenty-one years old and the female must be eighteen years old.20

Within the context of SMA, however, same-sex unions are not difficult to perform. It'd only be essential to change Section 4(c) to state that a spouse must be at least 21 years old if he is man and 18 years old if she is woman, and to include an explicit clause that same-sex unions are authorized.21 In any event, even if personal legislation are changed to recognize same-sex weddings, the SMA would need to be changed to recognize same-sex unions amongst people of different religions.

Legal Precedents
In Arun Kumar vs The Inspector General of Registration and Ors, the Madurai Bench of the High Court of Madras deployed a beneficent and purposeful understanding, ruling that the expression "bride" underneath the Hindu Marriage Act, 1955, covers transgender women and intersex people who identify as female.

As a result, a marriage solemnized between a male and a transwoman who practice Hinduism is recognized as a valid wedding underneath the Act. This is a crucial judgment because it expands the meaning of a word used in the Hindu Marriage Act and lays the groundwork for LGBTQIA+ marriage rights to be redefined.22

The Madras High Court judgment is based on the grounds set by the Supreme Court of India in Shafin Jahan versus Asokan K.M. and Ors., in which the right to chose and engage a partner was declared a guaranteed by the constitution right. The Supreme Court held that "marital displays of affection lie inside a sacrosanct core domain of privacy."

As a result of these judgments, any legislation or administrative restriction on same-sex and queer weddings must be considered illegal, particularly as a violation of Articles 14, 15, and 21 of the Constitution.23

Significance Of UN SDG
The United Nations has urged countries to uphold their international human rights commitments to prevent hatred and oppression against lesbians, gays, bisexuals, and transgender persons. Laws that penalize consensual relationships among adults of the same sex, crossdressing, and prejudiced constraints on national discourse of LGBT rights or the work of LGBT associations and human rights defenders all contravene international human rights norms, and the United Nations calls for their abrogation.

Stereotyping against LGBT people cannot excuse such laws; instead, it necessitates that countries take special steps to safeguard LGBT people from harm. Stereotyping, bigotry, and brutality against LGBT people have a wide range of consequences for human rights and community health, notably LGBT people's capacity to receive preventative and primary healthcare.

The global community at large growth undertakings, as embodied in the Sustainable Development Goals, necessitate that instantaneous consideration be paid to addressing the structured marginalization of these communities, groups, and cultures: to ensure nobody is left apart, steps must be taken to dismantle the systemic barriers that keep LGBT people from benefiting from the socioeconomic development.

Laws that criminalize homosexual activity, pathologize trans and non-binary people, and other forms of brutality and prejudice based on sexual inclination and gender identity sculpt the behaviours, regulations, and procedures of health centers and employees, perpetuating connotation and discouraging people from pursuing assistance, and potentially leading to defiance of their right to health.

One of the underlying determinants of the human rights violations that LGBT people experience, notably coercive therapies such as so-called "conversion therapies," has been and remains to be labeling them as sick based on their sexual orientation or gender identity.Resolving these issues is inextricably linked to numerous international human rights benchmarks, as well as the implementation of SDG 3, which focuses on good health and well-being and includes the goal of "access to adequate fundamental health services."

SDG 16 - the development of truly harmonious and equitable communities - calls on everyone to help LGBTQI persons have access to resources. When LGBTQI individuals are excluded, a vital component of the jigsaw is missing. Grantmakers may enhance the wellbeing of individuals and encourage the integration of disadvantaged populations within civilized society, notably LGBTQI persons, by incorporating sexual orientation and gender identity (SOGI) in ongoing development programs and policies.

The aim of Funders for LGBTQ Issues is to provide resources to LGBTQI communities so that everyone feels secure, has complete legal rights, and has the same integrity, optimism, and opportunity as non-LGBTQI individuals.

Concluding Remarks
To address the needs of the Homosexuals, the legislation must broaden the concept of marriage to include all gender and sexual orientations. It is past time for India's marriage laws to be changed to enable marriage amongst consensual adults regardless of sexual orientation, gender, or sex.24

Going through the half-way house of civil unions, as it was accomplished in the Western, has no benefit. Gaining official recognition through a civil union is equally as difficult as acquiring approval via same weddings. It is obvious that denying same-sex unions the option of marrying promotes prejudice by considering them unfairly.

The most gratifying option in a culture that places such a high value on marriage would be to allow same-sex weddings under personal laws. Obtaining changes to all faiths' personal laws, on the other hand, would be a difficult process.

  1. UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights on Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, (November 17, 2011),
  2. Nicola Barker, Not the Marrying Kind - A Feminist Critique of Same-Sex Marriage 48 (2012).
  3. Id., at 44.
  4. Thomas John, supra note 25, at 360.
  5. Baker v. Vermont, 744 A 2d 864 (Vt 1999).
  6. Nicola Barker
  7. Baker, supra note 33.
  8. Lewis v. 188 NJ 415 : 908 A 2d 196 (NJ 2006).
  9. Angela Charlton, French President Signs Gay Marriage Into Law, Huffington Post,
  10. Gay Marriage Is Now Legal In England and Wales After 'Historic' Bill Gets Royal Assent, Huffington Post,
  11. Nicola Barker
  12. Kerrigan v. Commr. of Public Health, 289 Conn 135 (2008)
  13. John Lewis & Stuart Gaffney, From Skim Milk to Harvey Milk: How Our Community Made History at Last Week's Supreme Court Arguments, Huffington Post,
  14. Employment Provident Fund Scheme, S. 2(g) (1952). Workmen's Compensation Act, S. 2(d) (1923).
  15. Siddharth Narrain & Birsha Ohdedar, A legal perspective on Same-Sex Marriage and other Queer relationships in India, Orinam, same-sex-marriage-in-india/
  16. Gregory M. Herek, Legal Recognition of Same-Sex Relationships in the United States: A Social Science Perspective, 61(6) Amer. Psycho. 607-621 (2006).
  17. Ruth Vanita, supra note 29, at 348-350.
  18. Nicola Barker, Not the Marrying Kind - A Feminist Critique of Same-Sex Marriage 48 (2012).
  19. Jeffrey A. Redding, Queer Theory - Law, Culture and Empire 125-127 (Robert Leckey & Kim Brooks eds., 2010)
  20. Jeffrey A. Redding, Queer Theory - Law, Culture and Empire 125-127 (Robert Leckey & Kim Brooks eds., 2010)
  21. The Special Marriage Act, 1954, S. 4
  22. Michael J. Klarman, From the Closet to the Altar: Courts, Backlash and the Struggle for Same-Sex Marriage (2012)
  23. Gautam Bhatia, The Unbearable Wrongness of Koushal v. Naz Foundation, Indian Constitutional Law and Philosophy (December 11, 2013),
  24. Tarunabh Khaitan, Reading Swaraj into Article 15 - A New Deal for All Minorities, in Law Like Love 281-283 (Arvind Narrain & Alok Gupta eds., 2011)

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