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Unveiling Equality: A Legal Journey through Same-Sex Marriage

This article delves deep into all the facets of Same Sex Marriages. Same Sex Marriage is the latest topic in news as Supreme Court of India has delivered its a long awaited judgement on the legality of same sex marriages.

The analysis begins with defining the concept of same sex marriage and than stating the position of same sex marriages in different nations. After that, the article mentions various national and international laws regulating the same sex marriage. Then it defines the position of the same in India. Later on it analyses the latest judgement of the Supreme Court Of India.

Moving beyond the legal frameworks, the article delves into the societal challenges faced by the concept of same sex marriage. And its impacts on the social and physical life of an individual carrying out this practice. By weaving together these various strands, the research aims to offer a comprehensive understanding of this concept.

In conclusion, this research contributes to the ongoing discourse on Same Sex Marriage, providing a nuanced and informed perspective on the complexities surrounding it. By fostering empathy and understanding, it seeks to inspire more effective and equitable policies to address the diverse needs of those carrying out this practice

Marriage is a union of two opposite sex. In today's world there is prevalent concept of Same:Sex Marriage. It is a marriage between two people of the same legal sex. It is also known by different names. It basically involves marriage between genders of the LGBTQ + community. This community is denoted by + sign in order to increase engagement of other queer groups. LGBTQ + stands for LESBIAN, GAY, BISEXUAL, TRANSGENDER and QUEER communities.

One of the most revolutionary and hotly debated social issues in recent decades has been same:sex marriage. Significant shifts in society attitudes and norms have resulted from the acceptance and legislation of same:sex unions which has caused heated discussions and legal disputes.

Different countries have different views on this topic, some countries recognizes and has legalized same: sex marriage, whereas other countries are still reluctant to accept this trend. In total there are 34 countries which has legalized same:sex marriage, still India is not part of these countries and has not lawfully accepted marriage between two same sex. Many research papers have taken these topics into consideration.

There are certain aspects of same:sex marriage which has not been discussed yet. Same: Sex marriage needs to be dealt in the spectrum of law and morality and how morals are affected through this concept of same:sex marriage. Morals are basically, accepted standards of behaviour, subjective to individuals. Morals differ from person to person.

Any conduct which is morally correct for an individual can be morally incorrect for another one. In order to provide a thorough examination of this concept, this research paper studies many components of same:sex marriage, taking into account its regional, Vedic and moral history, along with its impact on personal and societal level. It further critically analyses the whole concept of same:sex marriage and its dimensions.

Same Sex Marriage Around The Globe

In recent years, there has been tremendous debate and change worldwide over the recognition and legalization of same:sex marriage. Even while many nations have made strides towards giving same:sex couples equal rights and recognition, the legal system is still varied and complicated. There are nations where the same is completely prohibited, where it is recognized with restrictions, and where it has been legalized.

Today there are 35 countries who allows and recognizes same:sex marriages they are: Andorra, Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Denmark, Ecuador, Estonia, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States, and Uruguay. Of these 34 nations, 23 legalized same sex couples to marry through legislation, while ten through through court decisions.

Denmark was the first country to recognize same sex marriages and legalized same sex marriages in 2012 . And the Netherlands was the first country to legalize same sex marriages. It legalized same sex marriages in 2001. In Asia there is only Taiwan who permits the same sex marriage. Taiwan allowed same sex marriage in 2019.

There are countries like Austria, Chile, Costa Rica, Croatia, Czech Republic, Ecuador, Estonia, Greece, Hungary, Israel, Italy, Liechtenstein, Slovenia, Switzerland, and several states in Mexico, where same sex marriages have got limited recognition. And in countries like Russia, most countries in the Middle East, parts of Africa, and some countries in Asia the same sex marriage has got no recognition.

Same Sex Marriages In India

Marriages between people who are of the same gender are referred to as same:sex marriages. Despite continuous efforts to acknowledge and legalize them, same:sex marriages are currently illegal in India. This subject is significant because it touches on the acknowledgement and defense of LGBTQ+ people's relationships as well as their fundamental human rights.

Legalizing same sex unions would benefit LGBTQ+ couples by giving them legal protection and recognition, as well as by fostering greater social acceptance and lowering prejudice against the group. It is a significant issue for global LGBTQ+ rights activists and supporters, and its relevance goes beyond the legal domain to include broader social and cultural perceptions of the LGBTQ+ community.

Same:sex marriages are not recognized by Indian law, which defines marriage as a partnership between a man and a woman. In 2018, the Supreme Court of India invalidated Section 377 of the Indian Penal Code, which made homosexuality a crime. This decision marked a significant win for LGBTQ+ rights in India. However, same:sex marriages remained illegal despite the decriminalization of homosexuality. Even though there have been numerous court cases filed in Indian courts to legalize same:sex marriage, same:sex couples are still not recognized legally as of yet. The Delhi High Court did not legalize same:sex marriage in 2017, but it did rule that same:sex couples have a right to a stable relationship.

The Indian legal system has seen some recent changes that may have an impact on same:sex marriages in the country in the future. A provision of the Personal Data Protection Bill, which was introduced by the Indian government in 2020, acknowledges the right to privacy as a fundamental right. Given that it acknowledges people's right to privacy, some legal experts think that this clause could be used to support the legalization of same:sex unions.

Section 377 of the Indian Penal Code, which outlawed homosexual acts, was introduced by the British in 1860, marking the beginning of LGBTQ+ rights in India. This law persisted for more than a century, being applied to discriminate against and prosecute LGBTQ+ people, even after India attained independence in 1947.

However, in the latter half of the 20th century, the fight for LGBTQ+ rights in India gained steam. The AIDS Bhedbhav Virodhi Andolan (ABVA), the first LGBTQ+ organization, was established in Delhi in the 1990s to combat violence and discrimination against the LGBTQ+ community.

A non:governmental organization called the Naz Foundation filed a public interest litigation (PIL) in the Delhi High Court in 2001, arguing that Section 377 was unconstitutional. The LGBTQ+ community and their allies persisted in fighting for their rights in the face of strong opposition from conservative organizations and religious leaders, and in 2009 the Delhi High Court ruled that Section 377 was unconstitutional and decriminalized homosexuality. The Indian Supreme Court, however, reversed this ruling in 2013 and restored Section 377.

In 2018, the Supreme Court of India's five:judge bench ruled that Section 377 was unconstitutional, reversing the earlier ruling and decriminalizing homosexuality once more. This was a big win for LGBTQ+ rights in India and a big step in the direction of eliminating prejudice and advancing equality. Nevertheless, the LGBTQ+ community in India continues to face formidable obstacles in spite of these legal victories.

In Indian society, there is still a lot of prejudice and violence towards LGBTQ+ people, and many of them experience marginalization and stigma from their families, communities, and places of employment. Particularly transgender people experience a variety of forms of discrimination, such as being denied access to housing, healthcare, work, and education.

Furthermore, same:sex marriage recognition in India is still a long way off for LGBTQ+ couples. Their lack of legal recognition raises their vulnerability to prejudice and violence in addition to denying them access to legal and social benefits.

Supriyo v. Union of India

The Constitution Bench of the Hon'ble Supreme Court of India vide its judgement dated October 17, 2023, in Supriyo @Supriya Chakraborty and Anr v. Union of India W.P.C No. 1011 of 2022, has declined to recognize the right of same:sex couples to marry or have civil unions. Four decisions were rendered by the Constitution Bench, which was made up of Justices SK Kaul, PS Narasimha, Hima Kohli, Ravindra Bhat, and DY Chandrachud, the Hon. Chief Justice of India (CJI).

Justice Bhat and Justice Kohli delivered the majority opinion, while Justice Narasimha offered a separate concurring opinion. On the other hand, dissenting opinions were written by Justice SK Kaul and CJI DY Chandrachud.

The judges all concurred that same:sex couples cannot claim marriage as a fundamental right because there is no absolute right to marriage. The challenge to the provisions of the Special Marriage Act was also unanimously rejected by the Honorable Supreme Court. The majority judges further declared that same:sex couples cannot legally claim the right to adopt children and that their civil unions are not recognized.

The following are the key takeaways from the verdict:

No Inherent Right to Marriage: Marriage is not an inherent, unqualified right, but rather one subject to statutes and customs.

No Right to Civil Union Without Legal Framework: Legal recognition of civil unions, akin to marriage, can only be established through an enacted law. The Court cannot mandate or create such a legal status.

No Legal Status for Queer Couples: Queer couples have the right to form emotional, mental, or sexual relationships, drawing from the right to privacy, choice, and autonomy. However, this doesn't grant them legal status or entitlement to union of marriage.

Validity of Special Marriage Act: The challenge to the Special Marriage Act in terms of recognizing same:sex unions is dismissed.

Entitlement to Compensatory Benefits and Welfare Entitlements: Indirect discrimination affecting queer couples regarding entitlement to compensatory benefits or welfare entitlements tied to marital status should be addressed and eliminated by the Central Government.

Establishment of a High: Powered Committee: A high: powered committee (HPC) chaired by the Cabinet Secretary, appointed by the Central Government, should comprehensively examine factors related to same:sex marriage, considering the input of all stakeholders, states, and union territories.

Transgender Persons' Right to Marry: Transgender individuals in heterosexual relationships are free to marry.

No Right to Adopt Children: Under current law, queer couples do not have the right to adopt. Regulation 5(3) of Central Adoption Resource Authority Regulations (CARA Regulations), which bars unmarried individuals from adopting, is upheld. However, CARA and the Central Government should consider the implications for de facto families where single individuals are allowed to adopt and subsequently enter non: matrimonial relationships.

Protection Against Involuntary Medical Treatment: The state must ensure that the cohabitation rights of queer couples are not violated, and steps should be taken to prevent involuntary medical or surgical treatment of queer and transgender individuals.

Other Relevant Case Laws
Naz Foundation v Government of NCT Delhi:
In this landmark case 9, the Delhi High Court declared Section 377 of the Indian Penal Code as unconstitutional. Based on a Public Interest Litigation filed by the NGO, the judgement paved the way for the legal review of the British era law. The Court declared it to be in violation of Article 14, Article 15 and 16 (all rights around the concept of equality) of the Constitution of India.

NALSA v. Union of India
This case came in the aftermath of the criticized judgement in Suresh Kumar Koushal v. Union of India 11. In Suresh Kumar, the Supreme Court re:criminalized Section 377, which was decriminalized in Naz Foundation. The National Legal Services Authority led the charge

towards raising relevant questions in favor of the transgender community. This judgement

declared transgender persons as the third gender. A comprehensive set of guidelines, protecting the rights and freedoms of the transgender community, was laid down in the judgement. Subsequent to that, legislative developments followed to provide a clear statute that shall forward their rights. There were extensive debates and versions of law presented which culminated in 2019 with the Transgender Persons (Protection of Rights) Act, 2019.

While the law is necessary and does have some positive aspects, it has a major issue, i.e., of administrative interference by requiring that each person would have to be recognized as 'transgender' on the basis of a certificate of identity issued by a district magistrate. This is a major issue considering the sensitivity of the subject.

Justice (Retd.) K. S. Puttaswamy v. Union of India
Granting the right to privacy as a facet of Right to Life and Liberty, Article 21, this judgement held that privacy in an integral part of a human's life and that it extends to all individuals, not withstanding gender and sex.12 In the judgement, Justice Chandrachud observed that the LGBTQ community should be entitled the right to privacy, particularly autonomy and freedom from interference from the state. A special observation was made in the context of the right to choose partners of one's own choice, sexual freedom and autonomy. The Court observed that:
"The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14 (right to equality), 15 (discrimination on grounds of sex) and precursor to the breakthrough Navtej Johar case.

Navtej Singh Johar v. Union of India
This judgement decriminalized homosexuality in India by reading down the infamous Section

377. Striking down the section to the extent that it criminalized consensual intercourse between two consenting adults, the judgement held that the section violated Articles 14, 15, 16 and 19(1)(a) of the Constitution. The right to live with dignity, the freedom to autonomy and choice in personal life were recognized, drawing inspiration from the Puttaswamy judgement.

Abhijit Iyer Mitra case
The matter pertains to the question of recognition of same sex marriage under the Hindu Marriage Act and the Special Marriage Act in India. The argument forwarded by the petitioner is that with the recognition of same sex relationships consequent to the decriminalization; the state should be responsive to the cause and also conform to the international standard and conventions that India is a signatory to.

Contradicting this argument, Solicitor General Tushar Mehta argues that the term 'spouse' under Hindu law can include only a male and female and that such judicial interference will 'cause complete havoc with the delicate balance of personal laws'.14 The central government stated that the decriminalization of Section 377 did not automatically mean that such relationships would be entitled the right to marry.

Referring to the Indian traditions and that marriages are based on rituals, ethos and social values, marriages have a spiritual aspect to it and thus, such same:sex marriage rights cannot fall within the purview of the judicial adjudication; but it a matter for the government and legislature to review and determine.

Societal Challenges Faced by the Concept of Same Sex Marriages
India's societal norms surrounding same:sex marriage present a number of obstacles, chief among them being deeply embedded cultural, religious, and legal considerations. These are a few of the main obstacles:

Cultural and Social Stigma: India is a country with a traditional social structure that strongly values heterosexual marriage and families. Same:sex partnerships are frequently stigmatised, which can result in prejudice, social exclusion, and even violence against people who identify as LGBTQ+.

Legal Framework: Same:sex unions are not recognized by law in India. The Hindu Marriage Act, the Special Marriage Act, and religiously:based personal laws form the foundation of the legal framework surrounding marriage; none of these laws allow same:sex unions. Same:sex couples are denied a number of rights and advantages that heterosexual couples enjoy, including joint property ownership, inheritance rights, and spousal benefits, due to a lack of legal recognition.

Religious Opposition: For religious reasons, many religious organizations in India are against same:sex unions, including conservative branches of Sikhism, Islam, Christianity, and Hinduism. This opposition is part of the social backlash against the acceptance and legalization of these kinds of unions.

Political Will and Public Opinion: Even in India, where support for LGBTQ+ rights is growing, there is still a dearth of popular political will to change the country's current laws and policies to accept same:sex unions. Furthermore, there is still disagreement among the public regarding the issue, with conservative perspectives frequently prevailing in discussions.

Family and Social Pressures: In Indian society, the family is a fundamental institution, and people frequently experience strong pressure from their families to follow conventional gender roles and marriage customs. Adopting a same:sex relationship or getting married after coming out as LGBTQ+ can cause emotional distress and rejection from family members.

Lack of Support Services: In India, same:sex couples frequently do not have access to services that can help them, like legal aid, counselling, and specialized healthcare. Lack of these kinds of support networks can make it more difficult for people to navigate same:sex relationships and marriages.

Media Representation and Education: Although LGBTQ+ issues are becoming more widely known in Indian entertainment and media, their portrayal is frequently sensationalized or stereotyped. To dispel preconceptions and promote greater acceptance in society, more truthful and uplifting depictions of same:sex relationships are required.

The topic of same:sex marriage is intricate and multidimensional, with aspects related to the law, society, culture, and morality. This article has examined a number of topics related to same:sex marriage, including its definition, global outlook, unique status in India, and recent legal developments like the Supreme Court's decision in the Supriyo case.

As the analysis progressed, it became clear that same:sex marriage is a complex legal issue that is also influenced by cultural norms, individual rights, and society values. Many obstacles still exist, especially in countries like India where societal, cultural, and legal barriers continue to be formidable barriers, even in spite of notable progress made in some countries towards legal recognition and acceptance.

The concept of same:sex marriages in India faces a number of societal challenges, such as media representation, legal frameworks, religious opposition, political will, family pressure, and cultural stigma. These challenges underscore the need for inclusive and comprehensive strategies to address these issues. In order to create a more equitable and inclusive environment for LGBTQ+ individuals and their relationships, it is imperative that efforts be made to foster greater understanding, empathy, and acceptance within society.

In summary, this study adds a nuanced understanding of the complexities and challenges of same:sex marriage to the continuing conversation about it. This article tries to spark additional discussion and inspire more equitable and effective policies to address the diverse needs of LGBTQ+ individuals and couples by highlighting the legal, societal, and cultural dimensions of the issue. In the end, advancing LGBTQ+ rights and gaining greater equality and acceptance in society depend heavily on cultivating empathy and understanding.


Written By:
  • Piyush Singla (BBA LLB, Vivekananda Institute Of Professional Studies: Technical Campus)
  • Nayasha (BBA LLB, Vivekananda Institute Of Professional Studies: Technical Campus)

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