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Same sex Marriage: Complication and Way out

Marriage is an institution in the modern world and throughout the history. In simple meaning we can says two people of opposite sex or gender bond together for a lifetime. Many other definitions that were examined define marriage as union of male and female. Marriage is integral part of everyoneís life and important institution of human society. Family decides the marriage and decision takes by all the family members with consent.

After marriage bride and groom come into new societal relationship and reciprocal rights between the spouses.
When it comes through same sex marriage, is also known as Gay marriage. It is a marriage of two people of same biological or gender identity[1] Homosexual is a sexual orientation characterized by sexual attraction or romantic love especially for same sex.

The first law enabling a same sex marriage on 21st century in Netherland, which effect from April 1, 2001. There are 29 countries which recognized the same sex marriage are Brazil, New Zealand, France, Australia, Germany, Norway, Portugal, Spain, South Africa, Sweden, United Kingdom, Uruguay and several sub-national jurisdictions including parts of Mexico and the United States are allowing same sex marriage[2]. Other nation is also moving ahead or support the same sex marriage.

As India has decriminalizes homosexuality on 6th September 2018 after the verdict came from Apex court sec 377 as we known has been rejected or has been junked consensual sex between people of the same sex no longer crime in India. It is judgment upholding dignity privacy and Human rights of the LGBTQ community.

Religious perspective on marriage (same sex marriage)

Hinduism

Homosexual has an ancient history in India. The Hindu khajuraho temple is famous for their erotic sculpture contains several depiction of Homosexual activity. Pre-colonial Indian society did not criminalize same-sex relationships, nor did it view such relations as immoral or sinful. In Hinduism, homosexual has traditionally represented as natural or joyful[3]. In Mahabharata, Sikhandi was an evidence of same sex relationship.

However this ritual started losing their significance in the British-colonialism. In British raj, homosexual has criminalized under sec 377 of the IPC which came into force on 1861, and made it offence. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal shall be punished with imprisonment of either description for a term which may extend to ten years and should also be liable to fine.

Islam

In Islamic perspective, the Arabic word Nikah in law it means marriage. Nikah, which literally mean to tie up together for an indefinite period. In Islamic view, marriage is contract underlying a permanent relationship based on mutual consent on the part of a man and woman. But when goes through same sex marriage in Islam, itís not acceptable by Muslim community.

Homosexual acts are forbidden in Islam, if we say in Arabic word Haram. In Islamic jurisprudence Prophet Muhammad is said to be death penalty for active and passive partners in same sex marriage[4]. The message behind this of spoken words that whosoever performs homosexual activities voluntarily challenges against the God are punishable with death penalty or different punishment.

Christian

In Christian view, Same-sex marriage is not typically practiced in Christian churches. There is no legal definition of marriage in Christianity. In bible, itís written that marriage is only for union of man and woman. Churches donít accept the same sex marriage. Itís forbidden in the Christian community and made it an offence.

Laws regarding Homosexuality in India

As we know homosexual activities is not prohibited in the ancient Indians. But in the British era they were made an offence until on September 6, 2018. In this day the court delivered its unanimous verdict, declaring portions of the law relating to consensual sexual acts between adults unconstitutional. This decision overturns the 2013 ruling in Suresh Kumar Koushal v. Naz Foundation[5] in which the court upheld the law.

However, other portions of Section 377 relating to sex with minors, non-consensual sexual acts, remain in force. In recent Centre has opposed the same sex union, is saying that such interference would be complete havoc with the personal laws in the country. For example If we talk about sec 5 Hindu marriage act, 1955 defines the people who will be eligible to marry[6] under the act its talks about age legality of marriage as well as further its does not lay down the provision whether it should be male or female of opposite sex[7].

The same thing can be observed in special marriage act[8], even in their also does not lay down the provision of same sex. Then why homosexual marriage is not legally recognized in India. Why the government is discriminating their rights of LGBT.

Centreís Stand:
Living together with same sex union is not tolerable in Indian family concept.
  • Indian culture consists of biological man as husband, biological women as wife and the children born out.
  • It is also said that in 2018 landmark judgment of Supreme Court decriminalizes consensual Homosexual in India, does not extend to right to privacy to include a fundamental right or right to marry of same gender[9].

What are the problems faced by the LGBTQ community?

LGBTQ community is part of an India moreover is part of constitution of India. When other nation is moving ahead for their rights of homosexual activities and recognizes the homosexual sexual relationship, but in India is lacking not being allowed to same sex marry. In Part III, Art 21 constitution of India guarantee the fundamental rights of every citizens of India.

The article states that everyone has a right to marry of their own choice[10]. Despite that Homosexual couples are forced to suppress their feelings on getting married to the person on their own choice as compared to heterosexual couple has been given more benefits or rights. Same sex couples are facing hurdles regarding to open their joint bank account, denied from pensionís rights, insurance as well as not able to share property together[11].

Why are they discriminating on the basis of sex as well as them unable to express their views or feeling? Think of it, as constitutional morality is to provide equality to all. No one can discriminate against on the sexual orientation they are not taking away rights of Heterosexual couples; they are just claiming fundamental rights the choice of marriage. Constitution is not yours or ours, its part of every citizen of India.

Why LGBT demands for Legal recognition?

Although no statute book categorizes for same sex couple. All the statutory law has been dealt with solemnization and recognition of marriage relating to Hindu, Muslims, Christian or Parsi only recognize marriage between Heterosexuals. They are desperately demanding for expand the institution of marriage.

However, the Apex court in the landmark judgment of Navtej Singh Johar v. union of India decriminalized the Homosexuality, opening the wider scope of queer community to avail legal benefits. Legal and social recognition of same sex marriage will make legal benefits like maintenance, succession and pension rights available for same sex couples which they are presently denied. Once it becomes law itís easier to open joint bank account, loan account or whatever it is that couples wants to do jointly become possible. Apart from, they easily adopt the child easily. Homosexual couples demands legal recognition of marriage and wants to acceptance in the society without discrimination.

Suggestion
Time to change perspective regarding same sex unions and seeks to recognize marriage. Many same sex couples wish to marry because they are part of culture in which marriage has been ideal institution of connection and commitment. Marriage gives a bundle of rights, where they avail legal benefits.

One alternative solution to recognize a same sex coupleís marriage is civil union or partnership not through marriage. Civil union grants most of the rights except the title itself. Legislation recognizing the civil unions has been enacted in several other countries like United States of America, Australia, and New Zealand etc.

If the civil union model will be adopted in India then it would be necessary not only to enact a new law governing civil unions but also amend relevant legislations Like the Indian Succession Act, 1925, Workmenís compensation Act 1923 and legislation relating to adoption, pensions etc so that partners in the civil union is given the same status as spouse and considered to be family.[12] Another solution is anti discrimination laws to be made for tackle these issues.

Apart from, a first thing is change their mind set regarding same sex union. They also are human beings treated as to be citizens. Are they not criminals or coming from other planet? So there is necessity to develop the approach towards same sex marriage. It has to be fully accepted in the society.

Conclusion
Same sex marriages in India are not legally recognized in the society. It is very clear that denying the right of marriage and discrimination on the basis of sexual orientation is violation of fundamental rights. Homosexuality is not against Indian culture nor new, even in ancient time were these practices held. Although the judiciary has decriminalized the sec 377 of Indian Penal code, need to amend the personal laws or to make laws regarding same sex marriage. Moreover alternative solution like civil union or uniform civil code has to adopt for preserving the rights and legal benefits. We need to change their approach regarding Sexuality jurisprudence in India i.e. when they stop discriminating and judging LGBT then the war against Homophobia will won. Legitimate same sex marriages in order to move forward in the direction of human rights.

End-Notes:
  1. https://www.lexico.com/definition/gay_marriage
  2. https://antigaylaws.org/
  3. https://legalcorner.in/legalization-of-same-sex-marriages-a-dream-or-reality/
  4. Rohit Beerapalli, [sex marriage in India: A social-legal analysis], [volume 1 issue 4],[ International Journal For Legal Developments And Allied Issues]
    https://thelawbrigade.com/wp-content/uploads/2019/05/Rohit2.pdf
  5. Suresh Kumar Koushal v. Naz Foundation, AIR 2014 SC 563
  6. See Section 2, The Hindu Marriage Act, 1955
  7. See Section 5, The Hindu Marriage Act, 1955
  8. See Section 4(c), The Special marriage Act, 1954
  9. See Section 4(c), The Special marriage Act, 1954.The Indian Express] https://indianexpress.com/article/india/same-sex-marriages-legal-recognition-centre-7204303/
  10. See Article 21, Constitution of India.
  11. https://scroll.in/article/988175/the-battle-for-same-sex-marriage-is-essentially-a-fight-for-civil-rights
  12. Nayantara Ravichandran,[Legal Recognition of Same sex Relationships in India],[ Vol. 5 : Winter], Journal Of Indian Law And Society

    Award Winning Article Is Written By: Mr.Prakhar Singh
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