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Same-Sex Marriage: A Major Issue And Challenge In The Legal Aspect

In India, where there are many social and legal issues that are not faced by non-LGBT individuals, homosexual individuals face various problems. Their sexual activity is illegal, and they cannot marry or have a common association with other individuals. In 2018, the Supreme Court was expected to consider whether to allow same-sex couples to marry in the country. Partial freedom for LGBT individuals in India is a matter of principle. However, it is also important to note that the country's system should not be used to justify the right of a couple to marry.

In India, many LGBT individuals and couples face various problems due to their sexual orientation. They are afraid to get exposed and avoid being associated with families and society because they consider being gay shameful. Despite the decriminalization of Section 377, a lot of issues related to the LGBT community are still pending. There is also discrimination against LGBT individuals when it comes to freedom of expression. For instance, if a couple expresses their affection toward one another, but does not have the authority to do so, then it is not allowed.

In India, it is also illegal for same-sex couples to have a common association or to get married. In terms of social and legal issues, same-sex unions are not allowed to be considered in the country. This research paper discusses the severity of the problems and challenges on legal grounds.

This is a personal choice that has been taken into account. Laws should be gender-neutral so that couples who want to get married can do so without any discrimination. In the tradition of Hindus, marriage is regarded as a type of union between two souls, and the same concept applies to all souls.

Rights should be granted to the spouse instead of to a specific gender, as every person is vulnerable to hypocrisy due to social beliefs. The concept of marriage is acknowledged by society as a way to acknowledge the union of two souls. It is the primary object of marriage to beget and bear children. All members of a family are entitled to the right to be treated with dignity and respect.

A legal definition of marriage is a union between a man and a woman, which is a contractual arrangement that can only be recognized by law. It's a binding contract that both parties can rely on. The Hindu Marriage Act is a religious undertaking that is performed for the performing of religious duties. It is regarded as a sacred union that involves the blood and flesh of one's soul. It is not a civil contract and can only be performed under the condition of being legally married.

Two years after the criminal offence of being gay was made under Section 3771 of the Indian Penal Code (IPC), the Supreme Court of India ruled that this provision was unconstitutional. The court overturned its ruling on December 11, 2013. In a case filed by the Naz Foundation2 in 2009, the Delhi High Court ruled that this provision was unconstitutional when it pertains to sex between consenting adults.

Despite the court's ruling, the government and the Supreme Court of India still have not addressed the various questions related to the issue of gay relationships. One of these is the issue of same-sex marriages. Due to the law, people belonging to the LGBT community are considered individuals and are not allowed to get married. They also live in fear and are not able to feel fulfilled in their lives.

One of the main reasons people are against the idea of same-sex marriage is due to the non- acceptance of the sexual orientation of individuals. In any society, the concept of marriage is regarded as the ultimate closure of a love story. After the couple gets married, the status of the relationship changes from being anti-social to social.

Equality In Marriage Laws

The Human Rights Charter3 states that the right to marry is a universal right. This means that everyone should have the right to marry regardless of their sexual orientation. Unfortunately, not allowing the LGBT to live with dignity and liberty within their community is not only unjust and complex, but it also contradicts the promises made to them by the State.

Many people who choose to marry in inter-caste, intra-religious, or inter-gotra relationships have experienced violence. They have been murdered by their own families. This shows how freedom of choice can affect one's actions. In India, for instance, Dr. B.R. Ambedkar noted that Hindus would never intermarry with outsiders unless caste was removed from the country's constitution.

The Role Of Constitutional And Personal Laws Challenges To Equality In Marriages

  • Constitutional Challenges To Marriage Equality

    The legal status of a marriage between one man and one woman is solemnized according to the dictates of constitutional morality, which discriminates against the sexual orientation of the individual. This is a violation of the Golden Triangle constitution.4 Classification must be supported by a rational difference of opinion. According to Article 14, the classification must also satisfy two conditions: first, it must be able to distinguish between the things that are grouped together and the ones that are not. Second, it must have a rational nexus to what the statute seeks to achieve. This means that the discrimination against the sexual orientation of individuals cannot be regarded as a rational object.

    According to Article 14 talks about Equality before law which states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India, the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth[1] and Article 15, the State should not discriminate against any person on the basis of their caste, race, religion, sex, or birthplace, despite having these major articles in the Indian Constitution which protects the rights of a citizen our Judiciary still not able to give equal protection and opportunities just because of the criticism they face due to so called Indian Societal norms. In a case involving the National Legal Services Authority5, the Supreme Court ruled that the transgender community should be recognized as a third gender instead of just being a second class. This will provide necessary benefits to society's economically and socially backward sections. However, the non-recognition of the marriage of a transgender individual is also considered discrimination.

    A Nine-judge bench of the Supreme court in the case of Justice K.S Puttuswamy (Retd.) & Anr. Vs Union of India6 held that the right to privacy was a fundamental right that was protected by the Indian constitution. It also included the right to autonomy over one's personal choices. This right was not only incidental to the freedoms guaranteed by the constitution, but it was also a part of the country's overall social and economic development. In the Navtej Johar case7, the court ruled that an individual's choice of whether they would like to be left alone or not should not be considered a restriction on their privacy.

    In India, the only acceptable relationship is between a man and a woman unless the person is anti-social. This condition will make a couple break up and live in isolation. They will also never be able to live with the person they are in love with as they will be restricted from exposing themselves to the outside world. The right to self-identification is a component of the freedom of expression8 that is protected by the Indian constitution. In the Navtej Johar case, C.J.I. Mishra stated that discrimination on the basis of sexual orientation would violate the freedom of expression. In his decision, the court stated that even though the law recognises certain sexual orientations, the individual's dignity is threatened by the imposition of law. He further noted that the law also threatened the rights of biological expression and autonomy. Despite these constitutional interpretations, no legislation prohibiting discrimination in the workplace on the grounds of sexual orientation has been passed since Article 15 only applied to state or government entities.

    The discussion of marriage equality has recently been reignited by a member of parliament who said that same-sex unions go against India's (so-called) cultural ethos. This is happening in the midst of a Supreme Court of India petition for same-sex marriage privileges (under the Special Marriage Act, 1954). The institution's legality, or whether courts should get involved in marriage rights or leave it to Parliament's judgement, appears to be the biggest obstacle in adjudication. The fact that the Court earlier decriminalised consensual same-sex behaviour on the grounds of the "right to equality" and not just the "right to privacy" may help the Court decide whether or not to interfere in this case. What remains to be determined is how challenging the current opposition to marital rights is?

    The legal conflict facing the LGBTQ community has included the question of whether the law that criminalises sexual activity has violated either the right to equality or the right to privacy. In the former, one's sexual orientation and partner of choice were considered essential components of privacy and personal liberty. Equal treatment of same-sex couples and heterosexual couples was prioritised in the latter. This makes a difference, according to attorney Jonathan Berger, because while a privacy analysis calls for the state to take a completely "hands-off" approach where it should not interfere, an equality analysis necessitates the state to take proactive measures to ensure equality in all spheres of life. As a result, once equality with heterosexuals is established, it should be easier to pursue subsequent rights such as equalising the consent age, banning employment discrimination, and rights in marriage, adoption, etc.

Personal Laws And Its Implications In Same-Sex Marriages

In India, family laws are a much more complex set of laws than the laws regarding same-sex marriage. Even though the recognition of this practice through judicial challenge may lead to limited gains for the community, it does not remove the need for more comprehensive legislation. The concept of marriage cannot be viewed in terms of its rights only, as it is a pathway for society to run its own terms and conditions. It also tackles various issues such as parenthood, economic dependency, and protection from domestic violence. In India, marriage is often regarded as a part of the family law system since it still remains the central pillar of the legal system.

The laws currently deal with various aspects of the family, such as succession and parenthood, and assume that the heterosexual family is the norm to live in the society. Even if the Hindu Marriage Act or other similar laws are declared unconstitutional, the provisions of other laws will not allow same-sex couples to get married. The Hindu Succession Act, for instance, is based on the Hindu undivided family. Laws related to parenthood, such as the Guardianship and Hindu Minority Act, would only consider the normative family when it comes to deciding the guardianship of minors.

If the desire of same-sex couples to get married in India is to base their rights on the recognition of the special marriage act, then the laws related to this practice would continue to be relevant. These laws are still relevant because the various personal law regimes in the country are still interconnected. A Hindu couple who are getting married under the special marriage act would continue to be treated as a married couple under the Hindu Succession Act and other related laws. These laws would also continue to apply to matters of parenthood and inheritance.

Unfortunately, many of the laws related to this issue are not in keeping with the modern lifestyle of the country and are not in keeping with the needs of the LGBT community. For instance, the procedures related to the solemnization of marriage and the maintenance of a relationship are not in keeping with the modern standards of the country.

To ensure that the civil rights of the LGBT community are fully protected, the laws related to the family should be changed to address the various issues that arise after marriage. This would include the protection from domestic violence, inheritance, and parenthood. This would be done by developing comprehensive reform strategies in the family law system. The goal of marriage equality should not only be limited to the recognition of one's sexuality but also to addressing the various aspects of the family law. Doing so would ensure that the practice of legal inclusion is carried out in a way that is beneficial to society.

Other Countries Status

  • Denmark

    Denmark legalised same-sex marriages on June 15, 2012. On June 7, 2012, the Folketing adopted a bill that the Thorning-Schmidt I Cabinet had introduced to legalise same-sex unions. On June 12, Queen Margrethe II gave her royal approval, and it didn't go into force for another three days.
  • Germany

    Until June 11, 1994, it was considered a crime in Germany to be in a same-sex relationship. In 2017, Germany became the 15th country in the European Union to allow gay couples to get married. It was late to give full legal recognition to same- sex marriages compared to other countries.
  • UK

    The UK became the first country in the world to legalise homosexuality in 1967. In Scotland, the Criminal Justice Act of 1980 decriminalized certain types of sexual conduct. It was followed by the Northern Ireland Act of 1982.
  • USA

    On 26 June 2015, the US Supreme Court ruled that states can't prevent people from getting married. This event brought marriage equality to the entire country. During the previous 11 years, same-sex couples were able to get married in one State. Due to various court decisions and ballot initiatives, marriage equality has gradually spread across the country. The ruling was beneficial to the LGBT community as it reinforced the belief that same-sex marriage should be legal at all country levels. It also showed that the country was ready to accept a ruling favouring same-sex marriage.

    As the US Supreme Court considered whether to allow same-sex marriage in the country, the growing number of people supporting the issue showed that the government was ready to accept a decision in favour of equality. The significance of this event is that it indicates the acceptance of the changes that have been made in society regarding sexual orientation and gender identity.
  • Taiwan

    In May 2019, Taiwan became the first country in Asia to pass laws that allowed same-sex couples to get married. It is also one of the most progressive countries in the world when it comes to addressing the issues related to sexual orientation and gender identity. Some of the other notable changes that the country has made include allowing people to serve in the military and banning conversion therapy.
  • Japan

    In 1880, Japan became the first country to decriminalize anti-gay laws. Its progressive laws also include the right to change one's legal gender. No laws in Japan specifically prohibit discrimination based on sexual orientation or gender identity. However, in Ibaraki and Tokyo, some laws protect the rights of LGBT individuals. In some parts of the country, couples can also register a Partnership Certificate, which provides limited rights to help with the care of their partners.
  • Austria

    The great majority of Western European nations, including Austria, legalised same-sex marriage on January 1, 2019. In 2010, the nation gave gay and lesbian couples the ability to form a civil partnership. However, the highest court in Austria decided in 2017 that these partnerships are intrinsically discriminatory. The court also decided that homosexuals and lesbians should be able to be married by January 1, 2019, barring any laws imposed by the nation's government to the contrary. The first same-sex marriages occurred at the start of 2019 because Austria's legislature did not take any action to overturn the decision.
  • Costa Rico

    The first nation in Central America to legalise same-sex unions was Costa Rica in May 2020. In 2018, the nation's top court declared that the country's ban on same-sex marriage was unconstitutional. The court also stated that the ban would be repealed in 18 months if the government did not take action before that time, which it did not.
The debate over the legalization of same-sex marriage has been going on for a long time now. Due to various factors, the debate has been hampered by multiple ethical, religious, and political issues. This paper argues that it should be allowed.

Being gay is a choice that people have made based on their individual desires. It does not mean that they can't feel affection towards any other person, but it is a way of showing that they can get sexual happiness by having a legal civil ceremony. Aside from having a legal marriage, gay people should also have the right to enjoy the rights and securities of heterosexual couples.

In our society, marriage is a sign of commitment and love. If two individuals are in a committed relationship, how does that destroy the ideals of marriage? In India, we are currently in an age where people have the right to choose. Being gay is not against any group or society, but it is a community that should be recognized and treated with dignity and respect.

The question of how to deal with same-sex marriages is complex and has various options. As the complexity of the issue increases, the feasibility of implementing such an approach remains unclear. A growing number of people believe that the criminalization of same-sex marriages does not protect the fundamental rights of the gay community. This is because it undermines their fundamental rights and society as a whole. We need to recognize and treat all individuals equally and fairly.

  1. Indian Constitution
  2. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment.
  3. Naz Foundation vs Government of Nct of Delhi on 2 July, 2009
  4. Article 16
  5. Article 14, 19 and 21
  6. National Legal Services Authority (NALSA) v. Union of India &Ors on 15 April, 2014
  7. 26 September, 2018
  8. Navtej Singh Johar vs Union Of India on 6 September, 2018
  9. Article 19

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