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Legality Of Homosexual Laws In India

Homosexual marriage refers to the coming together of two people of the same sex and recognising each other as their lifetime partner by following the rituals and customs they believe in. However, this practice has been experiencing opposition from the society for a long time now, thanks to the orthodox public cast of minds. The LBTQ+ community has been fighting for this recognition since time immemorial and rightly so.

They are also as equal citizens of the country as any other heterosexual Indian national; hence rightfully entitled to the constitutional rights and liberty. It is therefore a matter of regret that India still hasn't come up with a legislation providing this community with exclusive rights to marriage, adoption, guardianship, succession, maintenance, pension rights, health benefits that are available to married couples but not to homosexual couples.

Not ignoring the historical cis normative and heteronormative framing of Indian laws, the struggle of the courts in dealing with the complexities around LGBTQIA+ issues is not in the slightest bit, bewildering. At the same time, it cannot be overlooked that certain judgements have provided relief to the concerned coterie and paved way for subsequent relaxations.

The Supreme Court's landmark NALSA judgement in 2014 gave recognition to their constitutional rights of the for the first time. Subsequent judgements like Justice K.S. Puttaswamy(Retd.) & anr. vs Union of India & ors. (2017) and Navtej Singh Johar & ors. vs Union of India Thr. Secretary Ministry of Law and Justice (2018) did the same for sexual minorities.

This project has been undertaken in lieu of the need for proper legal provisions regarding same sex marriages in the country. The previous judgements have for sure paved the way but, the rights need to be enacted into proper legal provisions to ensure recognition of the same. Recent hearings in Delhi High Court regarding live streaming of proceedings in the case concerning recognition and registration of same sex marriages necessitate the same.

People arguing in the favour of legalising homosexual marriages demand the implementation of the equality clause in the constitution. They call the unavailability of protection to the same sex couples as being discriminatory and hence unconstitutional. In various foreign courts where the laws prohibiting or not allowing same sex marriages were held to be unconstitutional, also invoking due process and equal protection clause.

The courts distinctly mentioned that right to marry being an individual right to liberty, also includes the equality component. A certain group of people cannot be deprived of the right to marriage granted to others, without a very compelling justification which, the courts held, does not exist.

Some people also argue about the ambiguity in The Hindu Law which does not explicitly mention about the marriage being solemnized between two opposite sexes, rather between two Hindus. However, the language of the act using 'she/her' pronouns in Section 13 of the act clearly points out the intention of legislature to limit the concept of marriage to heterosexual unions only. Thus, the question as to what the correct interpretation of this law can be is highly debatable and subject to various interpretations.

Supporters also take assistance of the view of Delhi High Court in Naz Foundation case[1] that the term 'sex' in Article 15 is inclusive of the sexual orientation and hence, prohibits discrimination on the basis of the same. Uttarakhand High Court also quoted in June 2020 about the live-in relationships of the same sex couples not being unconstitutional. The court observed that:
"It is a fundamental right which is guaranteed to a person under article 21 of the Constitution of India, which is wide enough to protect an inherent right of self-determination with regards to one's identity and freedom of choice with regards to sexual orientation of choice of partner".

Similarly, Orissa High Court and Punjab & Haryana High Court have ruled in favour of constitutional validity of same sex live-in relationships; citing protection under Article 21 of the Constitution of India.

Homer Clarke, a scholar writes that the most significant function of marriage today is that it furnishes emotional satisfactions to be found in no other relationships. For many people, it is considered as a refuge from coldness and impersonality of contemporary existence. This implies that marriage is a sacred union which goes much beyond the gender boundaries and therefore, should not be denied to any individual.

Several movies like Ek Ladki ko Dekha toh Aisa Laga(2019), The Journey (2004) depict homosexual relationships, the latter inspired by two real life lesbian lovers. Celebrities like Vikram Seth and Karan Johar have openly come out as a part of the third gender community. Swami Laxmi Narayan Tripathi from Thane, Maharashtra became the first transgender to represent Asia Pacific in the UN.

So, all in all this fraction advocates that same sex marriage should be legalised owing to India being the world's largest democracy where, equal right and protection to all is guaranteed in the constitution.

The government on Feb 25, 2021 asked the Delhi High Court to dismiss the cases demanding legislation for same sex marriages arguing that "marriage is based on age-old customs, rituals, practices, cultural ethos and societal values and that there exists a legitimate state interest in preventing same sex couples from marrying."

Again, on 24 May, 2021 the government asked the court to delay discussion on four petitions asserting that "nobody is dying because of the lack of marriage registration" and that their focus was on urgent and immediate pandemic related issues.

The Solicitor General of India, Tushar Mehta commented that the term 'spouse' and 'marriage' in the Citizenship Act referred to heterosexual couples only, and so, de facto excluded same-sex couples. Moreover, this was a position the government was comfortable with.

Further stating that Navtej Singh Johar[2] case judgement decriminalised private, consensual same-sex activity, he argued that the judgement therefore could not be attributed to permitting homosexual people marriage rights. Another statement from the Union Ministry of Law and Justice read that 'legitimate state interest lay in limiting the institution of marriage to the heterosexual couples only in an attempt to preserve social morality.'

The Apostolic Alliance of Churches and the Utkal Christian Council (Orissa) opposed the reading down of section 377 stating that "the decriminalisation of section 377 IPC will open a floodgate of social issues which the legislative domain is not capable of accommodating, as same sex marriages would become social experiments with unpredictable outcome."

It is claimed that children in such unions would be denied the affection of either mother or father; as a result, would have negative repercussions on their natural development. Psychologists however, are of the opinion that it is not the gender, rather the love and commitment of parents which makes the difference.

There Were Several Cases Dealing With Third Gender Rights Which Were Dismissed By The Courts; A Brief Account Of Which Is Given Below:
  • 2019- Delhi High Court dismissed appeal to make rules and regulations regarding same sex laws under Hindu Marriage Act,1955.
  • 2019- women in state of Uttar Pradesh were denied recognition to their marriage by the local registrar citing lack of relevant legal provisions.
  • 2020- lawsuit was filed in Kerala High Court on being denied the right to marriage under Special Marriage Act citing violation of principles of equality, non- arbitrariness, individual dignity and personal autonomy under articles 14,15(1), 19(1)(a) and 21 of the Constitution of India.
  • 2022- The Allahabad High Court similarly dismissed a case brought forth by a Hindu lesbian couple who wished to marry under the Special Marriages Act. The court also dismissed a habeas corpus claim brought by the mother of one of the women.

Instances Of Indian Same Sex Marriages

There must have been several cases of same sex marriages in the country, however only a small fraction of them have been reported. In this section we will look at a few of them.

In 1987, the national press reported the story of two policewoman who married each other by following Hindu rituals and customs in Central India. A large chunk of the cases reported are from the rural areas and small towns. The families sometimes may approve, while disapproving the other times.

In 2018, a Yavatmal native, Hrishi Mohankumar Sathawane (40) married Vinh, said to be a Vietnamese on December 30, days before the constitutional validity of sec 377 was to be decided. Another instance in Agra saw two lovers marrying each other where one of them changed their appearance into that of a boy. The family came to know of the truth after a week and thrashed the other girl. Following this, the girls threatened to commit suicide if separated.

2018 also witnessed the marriage of Nikesh Usha Pushkaran and Sonu MS in the premises of Guruvayur Temple, Thrissur, Kerala. A gay couple in Hyderabad solemnised their relationship in a same sex wedding in December,2021.

In June 2020, a lesbian couple from Mahisagar district, Gujarat filed a petition with the Gujarat High Court seeking police immunity from their families and recognition of their right to cohabitation. The couple entered into a 'friendship agreement' in an attempt to legitimise their relationship. The High Court granted their request on 23 July,2020 and instructed the Mahisagar police to provide protection to the couple.

Looking at these cases give us a fair idea of how keen these couples are, on getting their relationships legally recognised and protected. As already mentioned before, there are probably several unreported cases but in no way, they are less significant than the instances listed here. It is time that the efforts of this community are rewarded and provided with the legal sanction their relationships deserve.

History Of Judgements

We will have a peek on the breakthrough judgements that responded to the call of the community and provided them with reliefs.
  1. Naz Foundation vs Government of NCT of Delhi & ors. (2009):
    Challenged the constitutional validity of section 377 IPC (criminalisation of voluntary carnal intercourse against the order of nature), as being violative of articles 14 (equality before the law or equal protection of laws within the territory of India), 15 (forbids discrimination on the grounds only of religion, race, caste, sex, place of birth), 21 (right to protection of life and personal liberty) of constitution of India.

    The Delhi High Court struck down the concerned section as unconstitutional for the first time.
  2. Suresh Kumar Koushal & ors. vs Naz Foundation & ors. (2013):
    Challenged the Delhi High Court decision in Naz Foundation case before the Supreme Court.

    The Hon. Supreme Court reversed the Delhi High Court decision stating reasons that the matter did not demand judicial interference, thereby upholding the constitutional validity of section 377 IPC.
  3. National Legal Services Authority vs Union of India & ors. (2014):
    Challenged the verdict in Suresh Kumar Koushal & ors. vs Naz Foundation & ors. case before the Supreme Court.

    The Hon. Supreme Court recognised transgenders as the 'third gender' and said that they deserve equal rights as provided to their other societal counterparts. The court also instructed the centre and state governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.
  4. Justice K.S. Puttaswamy(Retd.) & Anr. vs Union of India & Ors. (2017):
    Justice D.Y. Chandrachud delivered that the basic elements under the ambit of "privacy" includes preservation of personal intimacy, purity of family life, marriage, procreating and sexual orientation. He went further ahead and stated that every individual, inclusive of the third genders, have liberty and freedom, within right to life and included under privacy.
  5. Navtej Singh Johar & Ors. vs Union of India thr. Secretary Ministry of Law and Justice (2018):
    The Hon. Supreme Court struck down section 377 IPC,1860 stating that it was violative of the liberty of LGBTQIA+ community. The statement read that they had autonomy to make personal decisions and the right to full dignity. Notwithstanding gender boundaries, every individual has the right to choose their partners, be it for marriage, or engaging in a sexual intercourse with the required consent.
  6. Shakti Vahini vs Union of India and ors. (2018):
    The Hon. Supreme Court observed the following:
    The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. True it is, the same is bound by the principle of constitutional limitation but in the absence of such limitation, none, we mean, no one shall be permitted to interfere in the fructification of the said choice. If the right to express one's own choice is obstructed, it would be extremely difficult to think of dignity in its sanctified completeness.

    The LGBTQIA+ rights advocates believe that a combined reading of Shakti Vahini and Navtej Singh Johar cases, could facilitate the recognition of same-sex unions within the Special Marriage Act,1954.
  7. Arunkumar and anr. vs The Inspector General of Registration and ors. (2019):
    The Madras High Court Justice G.R. Swaminathan observed that the term 'bride' in Section 5 (conditions for a Hindu Marriage) of the Hindu Marriage Act must not have a static meaning. It has to be interpreted in the light of changing socio-cultural norms to also include transwomen, intersex people, and other transgender people who identified as women.
  8. Shafin Jahan vs Asokan K.M. & ors. (2021):
    The Hon. Supreme Court of India established that the ability to choose and marry a spouse is a constitutionally secured freedom. The intimacies of marriage reside inside an inviolable core zone of private and that society has role to play in influencing our choice of spouses.

Hence, the abovementioned judgements when read, reflect upon the fact that India is gradually but significantly proceeding in its struggle for recognising third gender rights. We hope that certain similar judgements in the future provide the community with a fast-track portal for achieving the much-desired same sex marriage recognition.

Attempts At Introducing Legislation And Awareness

Let us have a look at some of the attempts which were made to introduce a proper legislation legalising the same sex unions.
  • First is the concept of Uniform Civil Code i.e., UCC. It was introduced in 2017 and aims at legalising same sex marriages in the country. According to its definition of marriage, it is "the legal union of a man and woman, a man with another man, a woman with another woman, a transgender with another transgender or a transgender with a man or a woman." It also provides couples with the right to adoption regardless of the adopting couples' sexual orientation.
  • On April 1, 2022, MP Supriya Sule from the Nationalist Congress Party introduced a bill to the Lok Sabha in an attempt to validate same sex unions under the Special Marriage Act, 1954. This proposal was aimed at amending various sections of the act to provide same-sex couples with the same legal rights as the opposite sex couples. It would also determine the marriage age for male and lesbian couples i.e., 21 and 18 years respectively.
  • As a part of Rashtriya Kishor Swasthya Karyakram (RKSK), which focuses on health programmes for adolescents, the Ministry of Health and Family Welfare launched the Saathiya Resource Kit (2017). This kit aimed at sensitising the adolescents about gender roles. One out of the several aims was telling the kids about same sex attraction and assuring them of its normalcy.

Reading of the detailed report offered by this project compels us to think of the ways which can ensure validation of homosexual marriages in the country. The contention about allowing it under the Hindu Marriage Act, 1955 because it doesn't "explicitly specify the sex of the couples tying the knot", won't stand on a closer and careful reading of the act. It is an established principle that no provision in a statute and no word in any section can be construed in isolation. Instead, it is suggested to gather the mens or sententia legis of the legislature.

Section 13(2)(iv) of the Act:
"that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years"

Clearly points out the intention of legislature to restrict the practice of marriage to heterosexual couples only. This leaves us with the clear indication of the gender of the bride, nullifying the argument of uncertainty in gender specification.

A viable yet strenuous option can be the Special Marriages Act,1954. It can be amended for including homosexual marriages under its ambit. In the main paragraph of the section, the statement mentioned is "a marriage may be solemnised between two persons" and not between a male and a female. However, in clause (c) dealing with the age of the parties to the marriage, the words 'male' and 'female' are expressly used.

It can be interpreted that the act does not explicitly mentions the marriage to be solemnised between a male and a female. But this interpretation falls flat on an examination of Section 15 of the act. Clause (a) of section 15, uses the expression:
  1. A ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since.
The abovementioned statement conveys the idea that the subjects of the Special Marriage Act are also male and female and a wedding between two homosexuals has not been included in this act. Hence the need for corresponding changes becomes necessary to make the concerned community feel equally respected and included.

In conclusion, be it amending the already existing laws or bringing an entirely new law in total, the same sex unions need to be legitimised and given legal sanction. We cannot let this community suffer any more torment especially in a democratic country like India. Indian constitution and laws have always made sure to be the 'home' for every community, affectionately incorporating the diversity within it. It is time to extend the shelter of this home to our LGBTQIA+ counterparts as well. Only then, can India uphold its title as the world's largest democracy in real terms.

  1. Naz Foundation vs Government of Nct of Delhi and others (AIR 2009, WP(C) No. 7455/2001)
  2. Navtej Singh Johar & Ors. versus Union of India thr. Secretary Ministry of Law and Justice (AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016).

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