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Marital Rights Of Same Sex Couple and the Hindu law

Concept of Marriage
Many transitions and modifications have occurred in the society in which we all live. We have been introduced to a myriad of new conventions and theories as a result of these advances, and they have become embedded in our daily lives. In this essay, we will consider marriage as an example of such a concept.

This term does not have an official meaning. It has been viewed and defined in a variety of ways by different individuals and institutions. Edward westmark in his ‘History of Marriage’ defines Marriage as the more or less durable connection between male and female lasting beyond the mere act of propagation till after the birth of offspring 

The Indian courts described marriage in Shobha Rani v. Madhukar Reddi, where the need for such an institution was more critical because marriage had legal consequences.
Marriage is an incredibly significant social institution. Marriage is the only socially acceptable kind of a man and woman's relationship. Humans wed, while animals mate. Mating is a biological process, while marriage is a social and cultural process.

Love, according to sociologists, is a collection of roles shared by a man and a woman who have been socially sanctioned as husband and wife. The system's equilibrium involves modification between the two partners so that one partner's role enactment correlates to the other's role expectations.

In a secular country like India, where you find different religions and various customs, it is important that a man and women get married when they reach a certain age but this is not only important in the eyes of the society but is equally important for the individual as it becomes unacceptable if they do not get married when they reach that age.

Hindu marriage is regarded by indologists as a sanskara, with three objectives: dharma (fulfillment of religious duties), rati (sex gratification), and praja (prosperity) (procreation). Dharmik marriages were conducted for the sake of dharma, while adharmik marriages were performed for the sake of physical gratification.

The four of these marriages:
Asura (eloping with a woman), Rakshasya (forcibly abducting a woman from her home), and Paisacha (man molesting a girl when she is sleeping, intoxicated, or in a state of unbalanced mind)—were dubbed Adharmik marriages because they had such a low ideal.

Dharmik marriages were labeled as:
Daiva (a woman who is married to a priest who is intelligent and wealthy and belongs to the aristocracy), Prajapatiya (entering wedlock for the biological purpose of sex fulfillment and having children), and Arsha (woman marrying a man of intelligence and character who is hesitant to enter marriage so that she can have intellectual progeny and a healthy home environment).

Hindu Marriage Act 
Hinduism is made up of a very mixed group of individuals. It's similar to a larger umbrella with a wider spectrum of coverage. Millions of people obey it, but there is no one-of-a-kind religion or god. It attracts a wide range of fans. It is a personal law from India. Where personal life issues and flaws can be addressed by them. Wedlock, guardianship, divorce, custody, and many more are all included.

The policy of applying personal Legislations in marriages was essentially adopted by Warren Hastings, the first Governor-General of British India, in1772, and was then followed by British colonials during their rule in India.

The Hindu Marriage Act of 1955 was enacted to protect the interests of Hindu husbands and wives who are married in a holy ceremony. Since a man or a woman may perform this religious act in a variety of ways, the legislation does not specify the types of ceremonies that may be performed. After marriage, the registration process can be completed properly, because if there is a dispute between the partners and they wish to divorce, they should do so. If they want to remarry after divorce, the process for that can also be understood under this act.

The Hindu Marriage Act, 1955 regulates the registration of a man and woman who are members of the Hindu, Sikh, Buddhist, or Jain communities (section 2 of the said Act) or have proselytized to one of these religions after their marriage has been solemnized. Furthermore, such provisions have been stipulated under Section 5 of the Act for the legitimation of a Hindu marriage that must be met, as held by the Supreme Court in Gullipilli Sowria Raj v. Bandaru Pavani, where the marriage of a practicing Hindu man and a Catholic woman was declared void despite being performed in accordance with Hindu customs.

Marital rights of couples
After the marriage of a hindu couple, they are conferred with few rights like;
Right to property, guardianship of children, inheritance, maintenance, judicial separation, divorce, e.t.c but it is always assumed that these rights are for couples who are male and female. As we have mentioned in the above paragraphs . Marriage is the only socially acceptable kind of a man and woman's relationship or it is important that a man and women get married when they reach a certain age but this is not only important in the eyes of the society

A non-governmental body, the Naz Foundation had filed a petition to the Delhi High Court in the year 2001 to have homosexuality decriminalized by striking down the provisions of Section 377 of the Indian Penal Code, 1860, that made it illegal. The Hon'ble High Court in its verdict ruled Section 377 to be a violation of the fundamental rights provided to the citizens by The Constitution of India "insofar as it criminalized consensual sexual acts of adults in private" in a landmark 2009 ruling.

This verdict was, however, objected to by a large number of other groups, mainly religious,  and petitioned the Supreme Court to reinstate Section 377. The Supreme Court reversed the Delhi High Court's decision in2013, arguing that Parliament should decide the matter rather than the courts. Soon after, a curative appeal was lodged, and the case was remanded to the Supreme Court, where it was heard by a five-judge Constitution Bench, which issued its verdict on Thursday.

On July 17, 2013, a five-judge constitution bench headed by Chief Justice Dipak Misra reserved its judgment after hearing various parties for four days, including gay rights activists. Despite criminalizing consensual homosexual sex, the Supreme Court ruled thatDespite the Supreme Court decriminalizing homosexuality in the city, same-sex marriage is still banned under the Hindu Marriage Act, according to public interest litigation (PIL) lodged in the Delhi High Court.

According to the public suit, as Section 5 of the Hindu Marriage Act of 1956 makes no distinction between homosexual and heterosexual couples, the right of same-sex couples to marry should be recognised under the aforementioned Act.

According to the lawsuit, the legislation now treats members of the LGBT community as persons rather than couples. It is said that members of the LGBT community are compelled to ignore their desires to marry the person of their choosing. The petition argued that denying LGBT people the right to marriage is completely unfair and considers them as second-class citizens.

Section 377 contradicts the Constitution, according to the Hon'ble court. As a result, the court held section 377 as unconstitutional and it was ruled that all kinds of consensual sex between responsible adults are lawful.

On Friday, the Delhi High Court gave the Centre and the Delhi government one final chance to respond to three separate petitions filed by two couples seeking legal recognition of same-sex marriage.

One last opportunity is offered to the respondents to file counter-affidavits within three weeks, said a bench of Justices Rajiv Sahai Endlaw and Sanjeev Narula, which had previously provided notice and ordered the Centre and Delhi governments to file answers.
  
The concept of same sex couple
Today, homosexuality and queer identities may be acceptable to more Indian youths than ever before, but within the boundaries of family, home and school, acceptance of their sexuality and freedom to openly express their gender choices still remain a constant struggle for LGBT (lesbian, gay, bisexual, transgender) people.

In urban India, where social media and corporate initiatives have created increasing awareness of LGBT rights, the scenario looks more upbeat for gay men than for transgender people or lesbian women. While urban LGBT voices that are heard through several online and real-world platforms form an important part of LGBT activism, these expose only a small part of the diverse challenges faced by the community.

Far away from gay pride parades, meet-ups and heated discussions on Twitter, families in rural India have their own ways of dealing with LGBT individuals. In some parts, secret honour killings are planned so that the only way for a young gay man to survive is to run away in the cover of the night to some city, with no money or social support.

Today people invoke B.R. Ambedkar when talking of the rural socioeconomic environment. Ambedkar thought of the village as a unit of violence and that is most true for LGBT issues," she says:
Village medics and babas often prescribe rape to cure lesbians of homosexuality. Refusal to marry brings more physical abuse. Stories of family acceptance that you see on TV and other media are more of an urban phenomenon.

Even in educated urban India, suicides by lesbian women make headlines every year. It comes as no surprise then that a tribunal recently ruled that the only danger to lesbians in India is from their own families.

The consequences of coming out
A recent study found that one of the major factors that results in the stigmatization of LGBT people is parental reaction towards homosexuality. The study goes on to conclude that most LGBT people are acceptable to family only if they agree to behave like heterosexuals.

Prince Manvendra Singh Gohil, whose story of coming out has been well-documented in the media over the past several years, now heads several initiatives to help LGBT people, including the Lakshya Trust that works for HIV/Aids prevention in the LGBT community. He says LGBT people must not get carried away by what they see in the media.

It was for no small reason that I was in the closet for 41 years," he says. I know of someone who got a sudden rush of inspiration from a TV programme and decided to come out to his family. It didn’t work. He lost his home, his job, everything. I always tell people to be fully aware of their own reality. Be financially prepared. Detach a bit from your family both emotionally and financially before you plan to take this step."

Anwesh Sahoo, Mr Gay India 2016, who came out to his family at the age of 16, has a different perspective: I would not recommend waiting for the perfect time. Staying in the closet is a huge psychological burden. If you and your family have access to information, I suggest you do it whenever you feel strongly about your identity."

The psychiatric ward was like a prison complete with high walls and electric fence where I was treated like a criminal," she recalls. I was administered psychotic drugs which pushed me into depression and confusion. The doctor conducted torturous psychosexual experiments on me by forcing me to stay with other mentally ill women.

She wanted to see how I reacted to their interaction and sexual advances. This same person has now changed her practice to make it easy for people to shop for therapies that are more in fashion now. I am not saying all doctors follow unethical practices, but LGBT people and their parents must know that there are doctors who follow trends just to adjust their current practices to what will get them more clients and money."

Redefining the family and its role
In a society bound by a rigid set of social and cultural norms that dictate the terms and conditions of education, career and marriage, the lack of family support can prove to be a big blow to the mental and physical health of LGBT people. Isolation and pressure to conform often lead to depression, thoughts of suicide and psychosomatic diseases. Many of them prefer to move to another city to stay away from the immense pressure to marry and start a family.

But access to safe online spaces and support groups does not always compensate for the vacuum created by disapproval from family. Gohil says in the absence of family support, many LGBT people decide to succumb to the pressure to marry. "Many lesbian women come to me with requests to find a gay man who would be ready to put up with this show of marriage. That way they don’t have to worry about coming out or sexual abuse while satisfying their family’s obsession with marriage.

Popular TV shows such as Satyamev Jayate and The Tara Sharma Show have helped raise awareness among parents about LGBT issues. Jyoti says some of his friends simply asked their parents to watch the episode of Satyamev Jayate that focused on alternative sexualities instead of trying to explain everything on their own.

Considering TV and movies are accessible to even rural populations where social media has not yet penetrated, these could prove to be the most effective tools in redefining the roles and attitudes of families through programmes and stories that not only educate and enlighten but also relay LGBT experiences in authentic and varied voices.

Working with Gen Next
Though, theoretically, most educated citizens support alternative sexualities and gender identities, when it comes to day-to-day behaviour, there is an urgent need to change the ground reality. Bridging the gap between academic knowledge and everyday experience means we need people to question stereotypes.

Say, for example, the rampant telling of homophobic jokes. We need people to pause and ask what’s so funny about such an oppressive take. We need our allies to point out that such behaviour costs us our freedom and dignity. Creating a critical mass of such an aware group is an important part of on-campus activism.

Constitutional provisions
In 2018, in the landmark decision of Navtej Singh Johar v. Union of India, the Supreme Court of India decriminalised consensual homosexual intercourse by reading down Section 377 of the Indian Penal Code and excluding consensual homosexual sex between adults from its ambit.Homosexuality was never illegal or a criminal offence in ancient Indian and traditional codes but was criminalised by the British Raj during their rule in India.

Article 15 of the Constitution of India states that:
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
  1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
  2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to:
    1. access to shops, public restaurants, hotels and palaces of public entertainment; or
    2. the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public
In the case of Navtej Singh Johar v. Union of India, the Supreme Court ruled that the Indian Constitution bans discrimination based on sexual orientation via the category of "sex". Similarly in the case of National Legal Services Authority v. Union of India, the Supreme Court held that discrimination on the basis of gender identity is constitutionally prohibited.

Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender. We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution. 

— Supreme Court Judge K. S. Panicker Radhakrishnan
Sex as it occurs in Article 15, is not merely restricted to the biological attributes of an individual, but also includes their "sexual identity and character".

— Supreme Court of India
Despite these constitutional interpretations, no legislative law has been enacted to ban discrimination on the basis of sexual orientation. Concerning employment, Article 15 only extended to discrimination from the state or government bodies. However, on February 4, 2021, the Allahabad High Court ruled that firing a person on the basis of sexual orientation is a violation of Navtej Singh Johar v. Union of India Supreme Court judgment, hence extending the anti-discriminatory provisions to employment everywhere.

Provisions and change in the time of same sex couple 
The coronavirus is giving the opportunity to regimes and politicians around the world to roll back the clock on LGBTQ rights, with little challenge. And in India, the coronavirus crisis is far from over.

While the two year anniversary of the repeal of anti-LGBTQ law Section 377 should be a national celebration for LGBTQ Indians, the country has passed 3 million recorded coronavirus cases. September 6 is the independence day for LGBTQ people in India, (Indian Royal Prince Manvendra Singh Gohil, tells me from his royal establishment of Hanumanteshwar.)

The Indian Supreme Court unanimously ruled in favour of decriminalising homosexuality on September 6 2018, overturning the law, brought in during colonial British rule.Globally significant, it meant a fifth of the world’s population was legally allowed to be LGBTQ, in the biggest single decriminalisation of being gay in human history.

Laws for same sex couple
Traditionally, India has identified same-sex unions to be a trans-rooted alien culture-bound syndrome and associated social disorder. Hence, LGBT groups are working in the backgrounds for a step by step approach, required to tackle all the problems and rights of LGBT citizens in India. The previous focuses of these groups were to repeal Section 377 of the Indian Penal Code and to enact non-discrimination laws.

Nevertheless, LGBT rights agencies are optimistic and are working on winning the right to same-sex marriage, inspired by the progress achieved in several Western countries. In April 2014, Medha Patkar of the Aam Aadmi Party stated that her party supports same-sex marriage.

A single case of legal recognition of a same-sex marriage was granted by the Punjab and Haryana High Court in 2011. The couple held a marriage ceremony in Gurgaon after signing an affidavit asserting that they meet all of the requirements of a legal marriage.

End-Notes:
  1. https://www.forbes.com/sites/jamiewareham/2020/09/04/section-377-two-years-on-what-indian-royals-want-you-to-know-about-lgbtq-equality/?sh=3e2ff0171e3c
Written By:
  1. Muskan Ajitsaria and
  2. Dhwani Shah

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