Marriage

Marriage is not simply a benefit or privilege. Rather, it forms the very basis of a couple's ability to fully participate in society. Marriage is a source of social validation, dignity, self-respect, fulfilment, security (financial and otherwise), and other legal and civil benefits including in the domain of tax, inheritance, adoption, etc. Marriage also acts as a bridge which connects two families of bride and bridegroom.

As per the ancient belief marriage symbolises the sanctity for which ceremonies to be conducted to attain moksha by controlling artha and Kama. Their idea of marriage is unvaryingly hetero-sexual. Though there were different purposes for marriage the essential purpose is to extend support both financially and emotionally between the couples and their families.

In the modern era, the Netherlands became the first country to accord legal recognition for same-sex marriage on April 1, 2001. Currently, same-sex marriage is legally recognized and accessible in 29 countries worldwide.

Historical Background of Same-Sex Marriage in India

In Naz Foundation vs Government of NCT of Delhi, 2009 the Delhi High Court held section 377 of IPC, unconstitutional as it vividly shows discrimination against LGBTQIA+ community by denying the essential right to privacy under Article 21.

In Suresh Kumar Koushal Vs Naz Foundation, 2013, the Supreme Court of India reversed the verdict of the Delhi High Court and restored Section 377, reestablishing the criminalization of homosexuality. The Court also observed that the deletion of section 377, IPC, falls within the legislation's scope.

In NALSA Vs Union of India, 2014 the Supreme Court of India passed a historic verdict which granted various guidelines that guarantees and safeguards the rights of non binary genders who are termed as outcasts and declared them as "Third gender".

• In Article 14 the word "any person" includes male, female, and transgenders under which the transgenders can reap the benefit of equal protection under law.
• The imparity on the basis of sexual orientation results in a serious violation of Article 14.
• They possess equal rights in all the public institutions in respect of healthcare, education, employment, and civil rights.
• The right of having a dignified life under Article 21 is bestowed upon the transgenders.

In Navtej Singh Johar Vs Union of India, 2018 the Supreme Court set aside the 2013 verdict by decriminalising consensus sexual conduct between adults under section 377, and observed that criminalization of sexual acts between the consulting adults will invariably erode the purpose of Article 14, 15, 19, 21.

Held that:

1. Article 14 allows reasonable classification based on understandable differences, and classification based on "essential and fundamental characteristic" is not acceptable.
2. Section 377 indirectly discriminates against heterosexual people and the LGBTQ community based on their sexual orientation, whereas Article 15 prohibits discrimination on the basis of "sex", which includes sexual orientation.
3. Section 377 violated Article 19(1)(a) as section 377 inhibited sexual privacy.

The Court declared that the members of the LGBTQIA+ community are entitled to the full range of constitutional rights including the right to choose whom to partner with, the ability to find fulfilment in sexual intimacies, the benefit of equal citizenship, and the right not to be subject to discriminatory behaviour. The court further, recognised the duty of the state to end the discrimination against queer couples.

The unanticipated decision by the Supreme Court in 2018 to decriminalise homosexuality is considered as a monumental step forward for LGBTQ+ rights in India. By striking down the archaic Section 377, which was a remnant of the colonial era, the court sent a powerful message that discrimination and prejudice have no place in modern society. This landmark ruling marked a watershed moment in the long and arduous struggle for equality and acceptance. The court's decision not only upheld the principles enshrined in Article 14, 15, and 19 of the Indian Constitution but also recognized the inherent dignity and fundamental rights of individuals regardless of their sexual orientation.

Despite legal victories, such as the decriminalisation of homosexuality and the recognition of transgender rights in India, the battle for LGBTQ+ marriage equality remains unresolved. While these milestones brought a glimmer of hope, it was short-lived as same-sex marriages were still not legally recognized. This left many LGBTQ+ couples feeling disheartened and marginalised, as their love and commitment were not given the same validation as heterosexual relationships.

The LGBTQ+ community, recognizing the lack of legal recognition for same-sex marriage, took a proactive approach by filing numerous lawsuits in court. They contend that the State through the operation of the current legal regime discriminates against the queer community by impliedly excluding the queer community from a civic institution: marriage.

Multiple Suits seeking accord for same sex marriage was filed persistently. The Supreme Court announced its final verdict date after hearing the fondness and aversion. Supporters were keenly awaiting with bated breath for the verdict of legally recognised "Civil Union".On 17th October, 2023 the Apex Court passed its verdict which unanimously ruled against legalising same sex marriage in India and left it to the Parliament to decide over the issue.

Centre's Arguments:

1. Despite the same sex marriage being decriminalized in 2018, the status of Fundamental right to life and dignity has not been conferred in Navtej Singh Johar Vs Union of India.
2. The Parliament has codified the marriage laws only with an exclusive purpose to recognize the union between a man and a woman.
3. The Centre added cultural, social, ritual ethos to same sex marriage.
4. The essential need of procreation is lost in same sex marriage.
5. If any changes are to be made from the norms of the Special Marriage Act, that can be brought into effect only through the Legislative process and not by the judiciary.
6. There is no fundamental right for the queer couple to get married.
7. Granting legal recognition to same sex marriage causes legal issues over inheritance, adoption, tax and property rights.
8. The case was beyond the scope of the Supreme Court and fell within the domain of Parliament.
9. Same sex marriage is not comparable to the Indian families, claims it to be urban and elitist view.
    

Petitioner's Arguments:

1. Laws cannot discriminate against the citizens on the basis of ascriptive characteristics.
2. Homosexual persons are inherently entitled to fundamental rights.
3. Articles 19 and 21 of the Constitution guarantee all persons the right to marry a person of their choice, including LGBTQIA+ persons.
4. Queer persons possess the right to marry which is recognized by the Transgender Protection Act, 2019.
5. The idea of Procreation is not the sole ground to reject the queer couples as there are many ways to nurture a child through the process of surrogacy, adoption.
6. Procreation is not the sole purpose of marriage. Marriage is not merely the meeting and mating of two individuals but much more - it is the union of two souls.
7. The Special Marriage Act (SMA) violates the right to dignity and decisional autonomy of LGBTQIA+ persons and therefore violates Article 21.
8. Excluding LGBTQIA+ persons from the SMA discriminates against them on the basis of their sexual orientation and the sex of their partner. This violates Article 15 of the Constitution. Hence the act should be declared unconstitutional.
9. The restriction on the right of queer persons to marry is not a reasonable restriction under Article 19(2).
10. SMA ought to be read in a gender-neutral manner. Gendered terms such as husband and wife under section 4 must be read as "Spouse".
11. The eligible age for marriage ought to be twenty-one years for all persons.
12. They sought adoption, nominee rights with respect to healthcare plans and besides that punitive, protective, remedial, and preventative rules were also sought to ensure the safety and security of the queer couples.
13. Every person is entitled to marry someone of their choice. Queer people are equally entitled to the exercise of this right.
14. Article 32 of the Constitution vests in persons or citizens a fundamental right to approach this Court for the enforcement of the rights guaranteed in Part III of the Constitution. It is therefore incorrect to argue that queer people must wait for Parliament to enact a law granting marriage equality.
15. Consequential reliefs must necessarily follow a declaration that the right to marry is vested equally in all persons including LGBTQIA+ persons.
16. Directions to the district police authorities to extend protection to LGBTQIA+ couples from their parents and relatives.
17. Foreign Marriage Act, 1969 allows citizens to solemnize their marriage even if they are abroad. But as per section 17 of the act, such marriage must be valid in terms of foreign law and consistent with international law. FMA violates the decisional autonomy of queer couples under Article 21 and is discriminatory. All the rights under FMA are applicable to queer couples, even if they are abroad.
18. Both FMA and SMA are violative of Article 14 because they deny equal protection of law to LGBTQIA persons and fail the rational nexus test.
19. The FMA is pari materia to the SMA. They must be interpreted similarly with regard to same-sex and gender non-conforming marriages.
20. The Indian Parliament is a creature of the Constitution and does not enjoy unfettered sovereignty.

Arguments on Which Judges Agreed:

1. The right to marry is unrecognized under the Constitution of India.
2. Transgenders who are in heterosexual relationships are free to marry under the existing laws. Going by that reason, queer people are also eligible for such a right to marry.
3. Individuals possess the right to choose their partners to whom they wish to have physical intimacy.
4. Conducting a preliminary enquiry before registering an FIR against queer couples over their relationship is the need of the hour.
5. Parents cannot force the queer couples to undergo hormonal therapy.
6. Directions to State and Central governments to ensure that no discrimination persists against queer couples on the basis of their sexual orientation.

The unanticipated decision by the Supreme Court in 2018 to decriminalise homosexuality is considered as a monumental step forward for LGBTQ+ rights in India. By striking down the archaic Section 377, which was a remnant of the colonial era, the court sent a powerful message that discrimination and prejudice have no place in modern society. This landmark ruling marked a watershed moment in the long and arduous struggle for equality.

Court's Verdict:

• Queerness is a natural phenomenon and the concept of same sex marriage is neither urban nor elite.
• An entitlement to legal recognition of the right to union - akin to marriage or civil union, or conferring legal status upon the parties to the relationship - can be only through enacted law.
• LGBTQIA+ community had a fundamental right to form relationships and that the state was obligated to recognise and grant legal status to such unions, so that same-sex couples could avail the material benefits provided under the law.
• The Court refused to read down the SMA on the ground that if the act was declared void especially for exempting same sex couples, then it dates back to a time where two persons of different communities and castes could not marry.
• The apex Court ruled that it cannot either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations, which would amount to judicial legislation.

Directions to the Centre and State Governments:

• Steps have to be undertaken to ensure Queer people are free from discrimination.
• Guarantee equal access to goods and services for every queer couple without any disparity.
• Awareness about the rights of queer community has to be raised among the public.
• No person shall be forced to undergo any hormonal therapy.
• Create safe houses for queer couples.
• Intersex children should not be forced to undergo any operations.
• Police are refrained from harassing or coercing queer couples, with a motive to return them to their natal families.

Conclusion
Nowhere in the verdict, the top court had ever stated that the same sex marriage is conniving, in fact the court ruled certain guidelines to ensure the safety and security of queer couples. Though the Supreme Court accepted the discrimination, refused to grant legal recognition to same sex marriage considering it's jurisdictional limit.

The verdict had left the supporters empty-handed. The State has done little to emancipate the community from the shackles of oppression. Now it's parliament's prerogative to decide enacting laws which backs up the queer couples rights.