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India's Landscape on Same-Sex Marriage

Same-sex marriage, a union between partners of the same sex or gender identity, exemplifies a commitment between two individuals, be they two men or two women. Commonly referred to as gay marriage, this form of marital union is now legally recognized and performed in 35 countries, encompassing approximately 17% of the global population.

These progressive nations include Andorra, Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Denmark, Iceland, Ireland, Luxembourg, Malta, Mexico, Nepal, Ecuador, Finland, France, Germany, the Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States, and Uruguay. Estonia is poised to join this list on January 1, 2024.

The acceptance of same-sex marriage has not been without its challenges, as it often ignites impassioned debates and political disagreements between advocates and opponents. As the 21st century unfolded, an increasing number of jurisdictions, both at national and subnational levels, embraced the legalization of same-sex marriage. Simultaneously, other regions took measures to block such unions, either through constitutional amendments or laws that refused recognition of marriages conducted elsewhere.

The divergence in perspectives on the same act underscores the profound significance of same-sex marriage as a social issue in the early 21st century. It also highlights the enduring cultural diversity within and among countries, shaping the ongoing discourse surrounding this vital aspect of human rights and equality.

History of same sex marriage:
Throughout history, glimpses of recognition for same-sex unions have emerged. In the 3rd century CE, the Sifra referenced marriage between same-sex couples, even as the Book of Leviticus initially prohibited homosexual relations. The Sifra delved into the specifics, noting that these prohibited "acts" included same-sex marriages.

In the first century, some Romans engaged in formal ceremonies where two males were married, though such unions were considered atypical. The Boxer Codex, dating back to 1590, shed light on the normality and acceptance of same-sex marriage in pre-colonial Philippine cultures. Anne Lister and Ann Walker challenged societal norms by marrying in 1834, well before the legalization of such unions in England.

The turning point in modern history occurred in 1971 when Michael McConnell and Jack Baker legally wed in Hennepin County, Minnesota, marking the first same-sex marriage. The United States saw a significant push for gay rights and same-sex marriage after the Second National March on Washington for Lesbian and Gay Rights in 1987.

Denmark made pioneering strides in 1989 by becoming the first country to legally recognize same-sex relationships through registered partnerships. While these partnerships granted most rights enjoyed by married heterosexual couples, adoption and joint custody rights for same-sex couples were not initially included. The journey toward equal recognition and rights for same-sex couples has evolved steadily, reflecting changing societal attitudes and legal frameworks.

Exploring Religious Views on Sexuality and Gender Norms: Top of Form
Different religions have different views on sex and relationships. Some conservative beliefs see sex as something only for heterosexual couples in marriage and consider it somewhat sinful. Not all religions agree on this, though.

For example, Christianity may view sex as sacred and meant for marriage between a man and a woman, while Hinduism sees it as a natural part of life. Islam has a more complex perspective, viewing sex as normal but emphasizing procreation between a husband and wife to avoid sin. These perspectives often favor cisgender and heteronormative views.

Across religions, there are usually strict rules about sex, such as considering premarital sex a sin and seeing sex outside of marriage as an even bigger wrongdoing. Many religions also have rules about who you can have relationships with, with some major religions forbidding same-sex relationships and adhering strictly to a gender-binary narrative.

In summary, while there's no single view on sex, sexuality, and gender across religions, it's common for these topics to be treated cautiously and sometimes seen as taboo.

The health effects of legalizing Same-Sex Marriage:
For decades researchers have reported that lesbian, gay, bisexual, and transgender (LGBT) individuals experience a range of significant health disparities and a disproportionate rate of negative health outcomes. Adolescents with same-sex attraction are more than twice as likely as their peers to attempt suicide.

Gay men are at higher risk of contracting HIV and other sexually transmitted infections, while lesbians are less likely to access preventive services for cancer. LGBT people have higher rates of smoking and of alcohol and drug abuse. Elderly LGBT people are more likely to experience social isolation and face barriers to accessing needed care.

The study, published in the American Journal of Public Health, a study in California found lower levels of psychological distress among gay, lesbian, and bisexual adults who were in same-sex marriages, compared to those who weren't. Being in a legally recognized same-sex relationship, marriage in particular, appeared to diminish mental health differentials between heterosexuals and lesbian, gay, and bisexual persons, concluded the authors of the study, also published in the American Journal of Public Health.

Significant decrease in the number of visits for both medical and mental health care, as well as a reduction in mental health care costs, in the period after passage of the law, whether or not the men themselves had partners. Because this was a fateful event that occurred outside the control of the individual, it was not confounded with individual-level factors, such as health status, that may be associated with health care use, wrote the authors, who included Mayer. Consequently, this quasi-natural experiment allowed for a relatively strong empirical test of the influence of policy-level changes on health care use and expenditures.

Anticipated impact of same sex marriage on social and cultural system:
Some people may be uncomfortable with same-sex marriage because of their cultural or religious beliefs. If it's legalized, it could cause conflicts and tension among individuals with different beliefs, leading to family disputes and emotional harm.

Legalizing same-sex marriage might create social tension, especially in conservative or religious communities. This could result in discrimination against LGBTQ+ individuals, impacting their mental health and overall well-being.

There's a concern that legalizing same-sex marriage could break down traditional family structures, potentially affecting birth rates, cultural norms, and societal values.

Additionally, there's a fear that conservative or religious groups might strongly oppose it, causing more division within the nation and affecting national unity and development.

Acts regulate marriage in India:

  • Hindu Marriage Act, 1955:
    • Applies to Hindus, Buddhists, Jains, and Sikhs.
    • Governs marriage and divorce for these religions.
    • Defines conditions for a valid marriage, registration, and divorce grounds.
       
  • Special Marriage Act, 1954:
    • Applies to all Indian citizens.
    • Allows marriages between different religions and castes without conversion.
    • Covers marriage solemnization by a marriage officer and registration.
       
  • Indian Christian Marriage Act, 1872:
    • Applies to Christians in India.
    • Outlines conditions for valid marriages, registration, and divorce grounds.
       
  • Muslim Personal Law (Shariat) Application Act, 1937:
    • Applies to Muslims in India.
    • Deals with Muslim personal law, including marriage, divorce, and inheritance matters.
       
  • Parsi Marriage and Divorce Act, 1936:
    • Applies to Parsis in India.
    • Specifies conditions for valid marriages, registration, and grounds for divorce.
       
  • Foreign Marriage Act, 1969:
    • Provides for the registration of marriages of Indian citizens solemnized outside India.

Special Marriage Act 1954 and same sex marriage:

A marriage under the Special Marriage Act, 1954 allows people from two different religious backgrounds to come together in the bond of marriage. The Special Marriage Act, 1954 lays down the procedure for both solemnization and registration of marriage, where either of the husband or wife or both are not Hindus, Buddhists, Jains, or Sikhs.

The ongoing debate about same-sex marriages in India, especially regarding the Special Marriage Act 1954 and Hindu Marriage Act 1955, overlooks key issues. These acts include a condition for marriage related to the capability to have children, and the ability to procreate is crucial for marriage, as being unable to do so is grounds for divorce.

Dr. B.R Ambedkar, the first law minister, who played a significant role in drafting these laws, emphasized the importance of procreation in marriage. Even in civil marriage, he outlined specific age conditions for brides and grooms. It suggests that Dr. Ambedkar did not envision same-sex marriage.

The Special Marriage Act 1954 and Hindu Marriage Act 1955 are the governing laws for marriage in India. The Supreme Court is currently reviewing petitions urging it to apply the Special Marriage Act to any two persons, regardless of gender identity or sexual orientation. However, the argument against this is twofold: first, Parliament, through these acts, exercises valid constitutional powers without violating fundamental rights, and second, the petition seeks to create a new category of marriage, challenging existing legal gender distinctions.

The Constitution grants Parliament the authority over marriage and population under the Concurrent List of the Seventh Schedule. Recognizing same-sex marriage would not interpret but effectively rewrite existing laws, as these acts do not acknowledge such marriages. Gender-based marriage distinctions are argued not to violate non-discrimination principles or privacy rights. The acts aim to uphold the societal institution of marriage and the continuation of the human race through childbearing.

In short, the debate raises constitutional and societal concerns, arguing that the recognition of same-sex marriage is a matter for Parliament, not the courts, as it could have significant implications for the foundational institution of society.

Rule of Supreme Court:
Supreme Court ruled in response to a petition arguing that not recognizing same-sex unions violated LGBTQ people's constitutional rights. While the court didn't permit equal marriage, it acknowledged the rights of gay couples. This means Indians can now freely engage in same-sex relationships with constitutional protection, though marriage remains prohibited. Chief Justice DY Chandrachud emphasized the importance of the right to choose a partner, stating it is fundamental to the right to life and liberty.

The ruling ensures individuals can enjoy the right to a life partner, physical intimacy, privacy, and autonomy without interference from society, with the State obligated to protect these rights. The five-judge bench included Chief Justice Chandrachud, Justices Sanjay Kishan Kaul, PS Narasimha, Hima Kohli, and Ravindra Bhat, who affirmed the right to choose a life partner.

Why Supreme Court declined to legalise same-sex marriage:

The recent court ruling in India dashed the hopes of millions in the LGBTQ community as it fell short of granting full marriage rights to same-sex couples. Chief Justice Chandrachud clarified that deciding on equal marriage rights was beyond the court's scope and should be addressed by parliament. Despite disappointment from campaigners, the court emphasized the need to avoid interference in legislative matters through judicial review. Critics, including lawyer Swatija, expressed concern that the court's directions may not have legal impact, as the government isn't obligated to follow them. Many suspect the court yielded to government pressure, with influential cabinet minister Bhupender Yadav highlighting the societal nature of marriage issues best addressed in parliament.

Arguments in favor of Same-Sex Marriage:

  • Equal Rights and Protection Under the Law: All individuals, regardless of their sexual orientation, have the right to marry and form a family.
  • Same-sex couples should have the same legal rights and protections as opposite-sex couples.
  • Non-recognition of same-sex marriage amounted to discrimination that struck at the root of the dignity of LBTQIA+ couples.
  • Strengthening Families and Communities: Marriage provides social and economic benefits to couples and their families which will also benefit the same-sex people.
  • Cohabitation as a Fundamental Right: The Chief Justice of India (CJI) acknowledged that cohabitation is a fundamental right, and it is the government's obligation to legally recognize the social impact of such relationships.
  • Biological gender is not ´┐Żabsolute: The Supreme Court of India says that biological gender is not absolute, and that gender is more complex than just one's genitals. There is no absolute concept of a man or a woman.
  • Global Acceptance: Same-sex marriage is legal in many countries around the world, and denying this right to individuals in a democratic society goes against the global principles.

Arguments against Same-Sex Marriage:

  • Religious and Cultural Beliefs: Many religious and cultural groups believe that marriage should only be between a man and a woman.
  • They argue that changing the traditional definition of marriage would go against the fundamental principles of their beliefs and values.
  • Procreation: Some people argue that the primary purpose of marriage is procreation, and that same-sex couples cannot have biological children.
  • Therefore, they believe that same-sex marriage should not be allowed because it goes against the natural order of things.
  • Legal issues: There are concerns that allowing same-sex marriage will create legal problems, such as issues with inheritance, tax, and property rights.
  • Some people argue that it would be too difficult to change all the laws and regulations to accommodate same-sex marriage.
  • Issues with Adoption of Children: When queer couples adopt children, it can lead to societal stigma, discrimination, and negative impacts on the child's emotional and psychological well-being, especially in Indian society where acceptance of the LGBTQIA+ community is not universal.

Central Government's Stand on Same-sex Marriages:

The Union government has opposed same-sex marriage and said that judicial interference would cause complete havoc with the delicate balance of personal laws. It also submitted that the SC had only decriminalized sexual intercourse between same-sex persons in its 2018 judgment, but had not legitimised this conduct. The court, while decriminalizing homosexuality, had never accepted same-sex marriage as part of the fundamental right to life and dignity under Article 21 of the constitution.

The union government further said that:
Marriage between a biological man and a biological woman is a sacred union, a sacrament, and a Sanskar in India.

According to the government, the court's 2018 decision in the Navtej Singh Johar case simply decriminalized same-sex sexual activity, not legalized it.
The court had never recognised same-sex marriage as a component of the fundamental right to life and dignity under Article 21 of the Constitution, despite decriminalizing homosexuality.

Marriages between people of the same sex that are registered would also be in breach of existing provisions of both personal and statutory law.

Related Judgements on Same-Sex Marriage:

  • Naz Foundation vs. Govt. of NCT of Delhi (2009):
    • It is one of the first case laws wherein Section 377 of the IPC was held unconstitutional, as it discriminated against the LGBTQ community of the country and violated their privacy as individuals.
    • The Landmark judgment given by Delhi High Court stated that Section 377 violates Articles 14, 15, and 21. The court concluded that Section 377 does not distinguish between public and private acts, or between consensual and non-consensual acts.
    • The judgment was restricted to adults when Section 377 also applied to minors. Section 377 had permitted the harassment of LGBT people in law.
       
  • Suresh Kumar Koushal Case (2013):
    • SC overturned the previous judgment by Delhi High Court (2009) that decriminalised homosexual acts and criminalised homosexuality once again.
    • SC argued that in 150 years, less than 200 persons had been prosecuted under Section 377. Therefore, "plight of sexual minorities" could not be used as an argument for deciding the constitutionality of the law.
    • Further, SC ruled that it was for the legislature to look into the desirability of deleting section 377 of IPC.
       
  • Justice K.S. Puttaswamy vs. Union of India (2017):
    • SC ruled that Fundamental Right to Privacy is intrinsic to life and liberty and thus, comes under Article 21 of the Indian constitution.
    • SC declared that bodily autonomy was an integral part of the right to privacy. This bodily autonomy has within its ambit sexual orientation of an individual.
       
  • Navtej Singh Johar vs. Union Of India (2018):
    • Decriminalised homosexuality.
    • Dismissed the position taken by SC in Suresh Kumar Koushal case (2013) that the LGBTQ community constitute a minuscule minority and so there was no need to decriminalise homosexual sex.
       
  • National Legal Services Authority vs Union of India (2014):
    • The court declared transgenders as the Third Gender and affirmed the fundamental rights guaranteed to them.
    • They were also granted reservations in admissions to educational institutions and jobs.

Conclusion:
The recent legal decision on same-sex rights disappointed many, but there's hope for more rights in the future. The government may address issues like ration cards and pension rights for same-sex couples. However, these changes might need adjustments to family law.

Despite positive developments, there's resistance, especially from conservative religious groups. The National Commission for Protection of Child Rights opposes adoption by same-sex couples, claiming it endangers children.

The future of LGBTQ+ rights in India is uncertain. Progress is possible, but challenges and opposition from conservative groups may lead to legal and political battles. Activists need to persist in advocating for rights, raising awareness, and promoting acceptance in society.

References:
  1. Rabbi Joel Roth. Homosexuality Archived 24 August 2017 at the Wayback Machine rabbinicalassembly.org 1992.
  2. Williams, CA., Roman Homosexuality: Second Edition, Oxford University Press, 2009, pp. 279-284.
  3. Bell, J.; Hershman, T.; Holland, A. (2022). On This Day She: Putting Women Back Into History One Day at a Time. Rowman & Littlefield Publishers. p. 99. ISBN 978-1-5381-6457-0. Retrieved 24 February 2023.
  4. George Bryan Souza. The Boxer Codex: Transcription and Translation of an Illustrated Late Sixteenth-Century Spanish Manuscript Concerning the Geography, History and ... (European Expansion and Indigenous Response) Annotated Edition. Brill; Annotated edition (November 20, 2015). 148
  5. William N. Eskridg Jr. and Christopher R. Riano, "Marriage Equality: From Outlaws to In-Laws", Yale University Press (2020), Chapter 24
  6. "How Same-Sex Marriage Came to Be". Harvard Magazine. March-April 2013. Archived from the original on 2 May 2019. Retrieved 28 March 2015.
  7. "The secret history of same-sex marriage". The Guardian. 23 January 2015. Archived from the original on 2 May 2019. Retrieved 26 July 2015.
  8. Russell ST , Joyner K . Adolescent sexual orientation and suicide risk: evidence from a national study . Am J Public Health . 2001 ; 91 ( 8 ): 1276 ´┐Ż 81 . Crossref, Medline, Google Scholar
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  10. https://lawtrend.in/same-sex-marriage-can-erode-the-social-and-cultural-systems-of-india/
  11. Mayer KH , Bradford JB , Makadon HJ , Stall R , Goldhammer H , Landers S . Sexual and gender minority health: what we know and what needs to be done . Am J Public Health . 2008 ; 98 ( 6 ): 989 - 95 . Crossref, Medline, Google Scholar
  12. Fredriksen-Goldsen KI , Kim HJ . The science of conducting research with LGBT older adults an introduction to aging with pride: National Health, Aging and Sexuality/Gender Study (NHAS) . Gerontologist . 2017 ; 57 ( Suppl 1 ): S1 - S14 . Crossref, Medline, Google Scholar
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  16. https://www.drishtiias.com/to-the-points/Paper2/to-the-point-paper-2-section-377-judgement


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