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Same-Sex Marriage And Homosexuality In India: An Insight

Human sexuality is complicated. Accepting the distinction between desire, behaviour, and individuality affirms the complex nature of sexuality. The fact that these dimensions may not always be consistent in individuals suggests that the issues are complicated. In medical science, terms like homosexuality, heterosexuality, bisexuality, and trans-sexuality are used to refer to all related issues, whereas current social usage advocates for lesbian, gay, bisexual, and transgender (LGBT), which focuses on identities.

There are various reasons associated with the stereotype and social stigma, and the failure to distinguish desire, behaviour, and identity, estimating the prevalence of homosexuality in India has been a difficult topic to dealt with.

Homosexuality in India:

In India, homosexuality has a long history. Homosexuality can be traced back to the Rig-Veda period 1500 BC. The harems (young boys) used to be kept by Hindu nobles and Muslim Nawabs as described in the 'Kamasutra.' However, with the advent of Brahmanism and, later, British Colonialism, these experiences became correlated with hatred.

As they fueled patriarchy's dominance, the Aryan invasion began to suppress homosexuality. Homosexuals were punished, beaten, and tortured in a variety of ways, both physical and mental. This eventually gave birth to homophobia, which evolved over time. From there, homosexuality began to dwindle.

It has long been considered a taboo in India. Most personal laws define marriage as a sacrament and the union of two souls between people of different sexes. Same-sex relationships are viewed as morally wrong and in violation of tradition and religious beliefs. Gay and lesbian marriages are considered unholy because marriage is a personal matter governed by one's religious faith. People in India commonly assume that it is a part of Western culture and that it is a negative influence from other countries. However, it cannot be only considered as a Western practice, because our ancient scriptures and literature reflect a similar concept.

Legal Provision in India:
So far, no such progressive changes have occurred in India, and homosexuals continue to be victims of various forms of violence supported by the state and society. There is no explicit reference to homosexuality or haemophilia in any of India's statute books. It is not possible to prosecute someone for being homosexual or homophilic.

Homosexuals' emotional attachments, fantasies, affectionate and erotic desires are not given adequate consideration. However, the sexual act of sodomy is a crime. Section 377 of the Indian Penal Code (IPC) of 18601 contains the major provisions for criminalising same-sex acts. This I.P.C. provision is based on the centuries-old misconception that sodomy and homosexuality are the same things.

Thus, it is an attempt to criminalise sodomy de jure, while it is an attempt to criminalise and stigmatise homosexuality de facto. As a result, homosexuality is traditionally regarded as an offence under the IPC.

Same-sex marriage in Indian perspective:

When it comes to human and civil rights, many developed countries have embraced same-sex marriage. For a long time, third genders have faced gender discrimination. They have fought tirelessly for legal recognition of their rights. The legal protection of homosexual relationships on an equal footing with heterosexual relationships has now become a necessity.

The right to marry is regarded as a human right. However, there is no law or legislation that legally enforces transgender people's rights. But the verdict by the Hon'ble Supreme Court in the National Legal Services Authority v. Union of India & Ors2 made the first attempt to legally recognise their gender and the fundamental rights that all people have regardless of their gender.

Moreover, in the case of Navtej Singh Johar v. Union of India 3, the Hon'ble Supreme Court of India decriminalised homosexuality in the country about two years ago. Nonetheless, amidst this progressive decision, the Apex Court and the Government failed to address certain issues related to homosexual relationships. One such question deals with 'same-sex marriages.'

The verdict is a relief for India's LGBTQ community, which has long faced social and state oppression as a result of the antiquated colonial section 377 of the Indian Penal Code, which has forced them to live in shame. Many appreciable things were said in this verdict, but to truly secure the rights of the LGBTQ community, legal recognition of same-sex marriages should be one of the nexus.

Same-sex marriages are not allowed in India. No law perceive same-sex marriages. Because the law regards members of the LGBTQ+ community as 'individuals' rather than 'couples,' that is the reason why homosexual couples stifle their desire to marry a partner of their choice. One of the primary reasons homosexuality has not been acknowledged as 'normal' in India is the lack of a 'stamp of marriage.'

It is precisely how live-in relationships transition from 'anti-social' to 'social' when the partners marry. In India, marriage is a sacred institution. Denying the LGBTQ+ community the right to marry based solely on sexual orientation and gender. Same-sex marriage has been legalised in many countries around the world.

The world is moving toward liberal LGBTQ+ rights, but the Indian government, despite the 2018 verdict, does not appear to be in the state of mind to gain freedom from the clutches of orthodoxy and social liberalism. In a reply to a 24PIL4 in 2020, the Union Government through Solicitor General quoted that "Our (Indian) legal system, society, and values do not recognise same-sex marriages." He further contended that:
The 2018 judgement merely decriminalises homosexuality or lesbianism, nothing more nothing less.

In a recent plea5, in regards to same-sex marriage, in the Court, the Central government had argued that same-sex marriages are not rooted in Indian social systems and are therefore incompatible with Indian culture, rituals, values, and so on. Using a limited binary understanding of a "biological male" and "biological female,", and the Centre argued against incorporating western ideas into the Constitution.

Denying a person the freedom and choice to marry the person of their choice is a strict violation of fundamental rights and has serious constitutional implications. The Supreme Court has held in the case of Shakti Vahini vs Union of India that if the right to:
Express one's own choice is obstructed, it would be extremely difficult to think of dignity in its sanctified completeness. When two adults marry out of volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so, and it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation.

Though this judgment was delivered in the context of Khap panchayats and honour killing, it highlights the constitutional right to free choice and the right to marry as fundamental rights protected by Articles 19 and 21. In International Convention, even Article 16 of Human Rights Charter6 also recognizes, 'right to marry' as a universal right.

Opposing same-sex marriage: A Legal Discrimination

Section-377 discriminates against people gender and sexuality, which is prohibited by Article-15 of the Constitution. Article 15 forbids discrimination based on a variety of grounds, including gender. Article 15 establishes that there is no standard behavioural pattern associated with gender by prohibiting sex discrimination. Section-377's prohibition on non-procreative sexual acts prescribes traditional sexual relations for men and women.

As a result, the provision discriminates against homosexuals based on their sexual orientation.

The legal principle of establishing a public code of sexual morality has no reasonable relationship to the classification established. Furthermore, the section's very purpose is ambiguous, unreasonable, discriminatory, arbitrary, and based on the stereotyped concept that sex is only for sexual reproduction.

Section-377 violates the personal guarantee of civil laws for gay men and lesbians, as well as having other negative impacts: Section-292 of the IPC punishes obscenity; the current definition of obscenity may incriminate gay and lesbian texts. Because male homosexuality is a criminal penal offence, the assumption is that it is something depraved that can corrupt people's minds and bodies.

Conclusion:
Marriage is interpreted differently in different cultures. It is primarily an institution that seeks to recognise an individual's personal connections, such as family and sexual relationships. It is clear that homosexuals face discrimination and hatred, as well as isolation from social structure. Homosexuality is not a crime; it is simply a way of worldly desires, a way to achieve sexual happiness or desire. Apart from narrow mindedness, there is no reason why two gay people should not be married in a wedding ceremony that grants them the same rights and security as heterosexual couples.

What is the best approach to dealing with same-sex marriages? The issues are vast and complex. However, the acceptability and feasibility of such an approach are still obscure. In any case, there is a wide belief that our current method of criminalising same-sex sexual activity neither benefits homosexuals nor protects society as a whole. In order to progress in the direction of human rights, we must legitimise same-sex marriages.

End-Notes:
  1. Section 377: Unnatural offences.-Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 2 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Indian Penal Code, 1860, Act No. 45 of 1860.
  2. National Legal Services Authority v. Union of India & Ors, (2014) 5 SCC 438.
  3. Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
  4. Centre opposes plea seeking recognition of same-sex marriages, published at The Hindu. Available at- https://www.thehindu.com/news/national/centre-opposes-plea-seeking-recognition-of-same-sex-marriages/article32603987.ece
  5. There Is Legitimate State Interest In Limiting Recognition Of Marriage To Persons Of Opposite Sex Only', Centre Opposes Plea To Recognize Same-Sex Marriage- Published at- Live Law; Available at: https://www.livelaw.in/top-stories/same-sex-marriage-delhi-high-court-centre-affidavit-fundamental-right-opposite-sex-section-377-170398
  6. Available at: https://www.un.org/en/about-us/universal-declaration-of-human-rights
Also Read:
  1. Recognition of Equality Marriage
  2. LGBTQ And their Independence
  3. Same Sex Marriage: Need of the Era
  4. Recognition of Homosexuality In India-Its Time
  5. Same Sex Marriage: Is It The Time For Legal Recognition
  6. Marital Rights Of Same Sex Couple: A Socio-Legal Issue In India

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