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Marital Rights Of Same Sex Couple: A Socio-Legal Issue In India

Marriage is the oldest and most common institution in the world. Matrimony is a standard that society accepts and embraces. Since its conception marriage has been exclusionary towards certain communities of people. Each time a group of people are disqualified from being able to marry, the war between public policy, religion and social norms is fought[1].

The current issue of quarrel is the same sex marriage. The aim of this paper is to discuss the social, political and legal implications of same sex marriage in India. It also aims to examine that in Indian society there is an intimidation that the same sex marriage would lead to debasement of traditional concept of marriage.

The definition of marriage will be explored by the author during this paper. The argument that the alteration of marriage components will fundamentally change the structure and object of marriage is discussed. This will review the laws of different countries regarding marital rights of same sex couple. This will be accompanied by what should be the approach of family laws with respect to same sex marriage besides how the acceptance of right to marriage will lead to the safeguard of Human Rights of same sex couple.

Concept Of Marriage

Marriage based on cultural, social and personal considerations is described differently by different bodies.

According to Oxford English Dictionary[2], marriage is a condition of being a husband or wife or a relationship between married individuals. Today, the dictionary also acknowledges that this word is sometimes used to refer a long term relationship between same sex partners.

Merriam Webster Dictionary[3] describes, Marriage activities or Marriage ceremonies as the marital rite in specific engagement and related celebrations or ceremonial formalities. Marriage is a lawfully acknowledged that defines certain rights and obligation between the partners. Assuming the legitimacy of homosexuality would be denunciation for those whose marriage organization as important and absolutely essential to maintain the social structure alive today.

Marriage which encompasses many rituals or religion that enhance the family system has been well accepted and promoted by society. But the meaning of marriage in the current situation has changed dramatically. Today marriage is not only interrelated to man-women relationships. Law has played a vigorous role in social change. The tradition of marriage is the foundation of society and the institution of marriage is well protected by maintaining a strong foundation.[4]

Since the issue of marriage fall under the scope of personal law, each religion in India along with other family matters, has its own law concerning marriage. As we lookout, changing forms of life in society, the law has to react properly by observing social and constitutional values. India has a strong cultural foundations which are based on moral and social ethics. As the twenty first era experiences homosexuals and issue of fair acceptance of their families. All these developments have an unwelcome consequences on marital system which seek to change the definition of traditional marriage.

Concept Of Marriage Under Personal Laws:

Marriage in India have a great religious cultural and social significance. Marriage is considered as a sacrament and the marriage is a necessary part of religious duties. Recognition of same sex marriage under Indian personal marriage would constitute the most reasonable progression.

The Hindu Marriage Act governing the Hindus, Sikhs, Jain and Buddhists stipulates that a marriage may be solemnized. Marriage is a sacred tie under Hindu religion. Hindu defines marriage as most significant vidhi or sanskara. In Hinduism marriage is considered for the execution of religious duties with wife's association. Marriage is only valid when appropriate ceremonies are carried out such as Homa, Panigraha and Saptapadi. In Hindu and Christian legislation, a wedding age of Groom is twenty one and the Bride should be of eighteen years. [5]

Muslim marriages are not regulated by a statute, there is no formal concept of marriage. Yet generally in Muslim law Marriage is an arrangement made for procreation purpose. Religion and law are indissolubly bound in Muslim marriage and it is impossible to say that Muslim marriage is not a religious rite. The prophet said that marriage is deemed to be Sunnat i.e. religious obligation and to those who are fit it is compulsory.

In Muslim law, marriage is a contract between two persons and it is presume that the bride consent is necessary to the marriage. Muslim law prohibits person from performing homosexual activities because it is against of theological and moral perspective[6]. They rely on the perception that homosexual activities challenges the creation of God and thus it is an insurrection against God.

In Christian law, there is no complete definition of marriage. Canon law provides that in marriage man and women made one person. According to Christian law first institution created by God is marriage. First God produced Adam and in order to complete him, he created a women Eve. In brief, Christian marriage is a lifelong unification between man and a women, followed by some sort of rituals approved by the law of country. Many traditional Christian thinkers and denominations do not accept the same sexual relationship.[7] They believe that marriage should be restrained to traditional marriage.

From the above all majority religions it is clear that the approach is very unwilling to accept the same sex marriage. However with changing society, the norms are also changing and the decision of Supreme Court to decriminalize section 377 of Indian Penal Code has added a feather to cap.[8]There are several instances of homosexuality and same sex marriage in India. Lakshya, which is Vadodara based association help out 15 Gay couples to tie their knot. [9]

A lesbian couple in Amritsar was given sanction by local magistrate to live as friends. In Kerala two nurses Shiby and Prema got judicial permission to live together[10]. As we discussed about the age factor which is being the issue same applies to Special Marriage Act. Though prima facie the law did not prohibit the marriage of same sex couple certain questions still needs an answer.

Same Sex Marriage In Indian Scenario:

In India, the revolution of positive approach towards homosexuals started with the case of National Legal Service vs. Union of India.[11] In this case, court held that the right to self- identify one's gender including third genders is an important part of constitutional right to live with dignity. Moving further Delhi High Court in Naz Foundation vs. Government of NCT Delhi and Ors,[12] strucked down the section 377 of Indian Penal Code as being unconstitutional.

But this decision of Delhi High Court was reversed by the Supreme Court in case of Suresh Kumar Kousal and Ors vs. Union of India.[13] Court held that the parliament is having an authority to change the law and not the courts. This decision was criticized by many people as a very conservative approach towards the law.

The decision was taken into reconsideration in case of Navtej Singh Johor vs. Union of India.[14] In that case the Supreme Court decriminalized the Section 377 of Indian Penal Code and finally the door was open to welcome the liberal perspective of Homosexuality.

The initial focus was to decriminalize the consensual sexual acts, but this was the feasible step. Acknowledgement of same sex marriage in India is considered as a legal, political, financial moral and religious matter.[15]

Clashes arise over whether the same sex couple should be allowed to enter into marriage or not. The main important issue is the mindset or attitude of society towards the same sex couple. Unless and until the legislation acknowledges the rights and marriage of same sex couple, this attitude of society will not be changed. In India there are many issues which are faced by the homosexuals.

The social humiliation over the existence of homosexuals needs to be detached from society. Allowing them to move into the marriage will somehow become beneficiary to eliminate the stigma and humiliation. Not only allowing but giving them certain rights which are enjoyed by the other couple is also a main task. [16]

There are issues related to whether same sex couple have to be permitted to adopt the child or not and securing their rights just like other couple is still debatable. One argument which is in favor is that not giving homosexuals their rights is a grave violation of principle of equality which is provided under Article 14 of Indian constitution.

Another argument is that, how much it is justifiable to discriminate same sex couples or homosexuals on the root of their sexuality. Also there is an argument which is in support of homosexuals is that this will give financial and psychological assertion and the kids of same sex couple would be advantageous if their parents' marriage is recognized or acknowledged by the supreme institution of society i.e. marriage.[17]

There are arguments which do not support the same sex marriage. One of them is that this kinds of marriages will lead towards the destruction of the existing traditional family law system. There is a common opinion in case of homosexuals that they are in need of emotional and psychological security.[18] They are suffering from inferior self-worth and depression which leads them towards suicide. This is been resulting into the dishonesty and demolition in the families and ultimately in society as well.[19]

Law commission's 42nd[20] and 156th report, [21]concluded that the Indian society did not consider homosexuality as an acceptable form of social behavior. Homosexuality is not even a part of Indian culture. Another distress part of the reality is that the government is 1not interested to preserve the rights of same sex couple, especially marital rights because they are very less in number.

Though the Supreme Court had decriminalized the section 377 of Indian Penal Code, the society is not willing to agree the marriage of same sex couple and it is still persisted as a social taboo.[22] Another social opinion is that, homosexuality is considered as a disease or something abnormal thing. Though the majority of the world accepted it as a normal behavior and the World Health Organization declared it as not a disease, Indian scenario or people are not ready or willing to accept the same. [23]

In many developed countries there are legislation to preserve the rights of same sex couple. The decriminalization of section 377 of Indian Penal code [24]though acknowledged the rights of same sex couple but this has also put a new challenge before the legislation. Issues of adoption, property rights are still in the need of solution.

The U.S. Supreme Court has addressed this issues in case of Obergefell vs. Hodges[25]; the court has promulgated definite legal rights to same sex married couple, which includes:
  1. Property Rights:
    The court has given the property rights to same sex couples as provided to heterosexual couple with respect to the property. This property rights generally include protection for spouses in the incident of divorce, legal separation or death. Also the same sex couples who marry can hold the property together also enjoy the marriage related property benefits like marital estate.
  2. Employee Benefits:
    same sex couples be able to now include on medical plans of their spouses also the partners can claim the insurance coverage as a job benefit.
  3. Divorce:
    divorce laws are apply equally to both same sex couple and opposite sex couple.
  4. Adoption: the court was of the opinion that there is lack of legal protection for same sex parents who have adopted the child.

This judgment of U.S. Supreme court has largely sheltered the marital rights of same sex or homosexual couples henceforth it can be useful to draft the rules with respect to the marital rights of same sex couple.

Another important issue which is approaching frontward is the registration of same sex marriage. In January 2020, a writ petition was filed by homosexual couple[26], stimulating provisions of Special Marriage Act 1954 before Kerala High Court to register their marriage registered under the act.

Same Sex Marriage : Position In Other Countries:

There are many nations in the world which have accepted and legitimate same sex marriage on the foundation of the principle of Human Rights which says that all individuals must be handle equally. Netherland was the first nation which had offer the same sex marriage.

Countries like Spain, Canada, Belgium, Norway, Portugal, South Africa, Argentina, Iceland and Sweden has permitted the right to get married for same sex pair.[27] In United States, some States have recognized and allowed same sex marriage. Further there are substitutes available in many countries one of them is Civil Union.

With esteem to Indian culture, if we want to adopt a Civil Union Model, it will not only essential to make new enactments but also to amend the certain legislations such as Indian Succession Act, 1925, Guardian and Wards Act, 1890, Workmen Compensation Act, 1923. In many states of U.S.A., European Countries, Australia and New zeland have adopted this concept.[28] In Civil Unions they transmit all the benefits and protection just like marriage.

Conversely, there are countries especially in the Middle-East part of the world, this marriage is prohibited or not allowed. Now the question why the half of the world is still reluctant to allow the same sex relationship or marriage? The answer lies in the religion rituals. In many countries of the world sodomy is considered as a sin.

Till the decision of Supreme Court in Navtej Singh Johor vs. Union of India,[29] India was also one of the country in which sodomy was punishable with life imprisonment. Sodomy is punishable with the death penalty in countries like Afghanistan, Pakistan, Saudi Arabia, Iran, Nigeria Mauritania, and United Arab Emirates and also in Yemen. It is punishable with Life Imprisonment in Bangladesh, Bhutan, Maldives, Singapore and Uganda.[30]

Conclusion And Suggestion:
It is very much clear that denying the right of marriage to same sex couple is discrimination hence to obtain social acknowledgement is the necessary step. Though the judiciary has accepted and decriminalized the section 377 of Indian Penal Code, there is a need of amendments in personal laws. Application of Uniform Civil code can also be a one solution in preserving the rights of same sex couples. There is another main issue which will exist due to same sex marriage is of Adoption.

There is no procedure, prescribed for adoption to same sex couple. There are other alternatives like Surrogacy. But the legislation has not prescribed the surrogacy rule to same sex couple under Surrogacy Bill of 2019[31]. There is a real need of such alternative reproduction for same sex couple. And they are quite far from this measures.

Now there is a necessity of develop the approach of Sexuality Jurisprudence in India. The change in Law after the decision of Supreme Court has somehow changed the attitude of people towards the same sex couple, but it has not fully as accepted by the society. Further to make this happen, the law needs to be that efficient with respect to Adoption, Alternative Reproductive Resources, Property rights, Divorce, Child Custody to give the real justice to the Judgment of Section 377 of Indian Penal Code which was led down by Supreme Court.

  1. Michael R Woodford, Same Sex Marriage and Beyond, Journal of Gay and Lesbian Social Services,1,10(2016) Available at last seen on 21/02/2020
  2. Oxford English Dictionary (Online Ed.) (Available at last seen on 15/02/2020.
  3. Marriage | the relationship that exists between a husband and a wife, Available at, last seen on 15/02/2020.
  4. Balwinder Singh, Changing Dimensions of the Concept of Marriage- A contemporary Challenge to Personal Laws in India, vol.5 ,International Journal of Advanced Research 2039,2040 (2017) Available at last seen on 25/02/2020.
  5. Nayantara Ravichandran, Legal Recognition of Same Sex Relationship in India,Vol 5, Articles section of, 96,102 Available at last seen on 22/02/2020.
  6. Rohit Berrapalli , Same Sex marriage in India,Vol 1 ISSUE 4, International Journal of Legal development and Allied Issues 126, 128(2015) Available at last seen on 22/02/2020.
  7. Ibid.
  8. Navtej Singh Johar vs. Union of India AIR 2018 SC 4321.
  9. Indrajeet Santoshi , Homosexuality in India: A Controversial Issue, Vol 1 Issue 4, International Journal of Academic Research and Development,63,63(2016) Available at last seen on 20/02/2020
  10. Ibid.
  11. National Legal Services vs. Union of India AIR 2014 SC 1863.
  12. Naz Foundation vs. Government of NCT160 Delhi Law Times 277.
  13. Suresh Kumar Koushal and Ors vs. Union of India Civil Appeal No. 10972 of 2013.
  14. Navtej Singh Johar vs. Union of India AIR 2018 SC 4321.
  15. Dr.Arun Kumar Singh, Decriminalisation of Homosexuality in India Vis--vis Gays Rights, Vol 1, Indian Journal of Human Rights Studies,135 ,137, (2011) Available at last seen on 26/02/2020.
  16. Balwinder Singh, Changing Dimensions of the Concept of Marriage- A contemporary Challenge to Personal Laws in India, vol.5 ,International Journal of Advanced Research 2039,2044 (2017) Available at last seen on 25/02/2020
  17. Loving vs. Virginia 388 U.S.1 (1967).
  18. Indrajeet Santoshi , Homosexuality in India: A Controversial Issue, Vol 1 Issue 4, International Journal of Academic Research and Development,63,65 (2016) Available at last seen on 20/02/2020.
  19. Ibid.
  20. 42nd Law Commission of India Report, C1auses 49 and 50 of the Indian Penal Code (Amendment) Bi11, 1978, last seen on 23/02/2020.
  21. 156th Law Commission of India Report, on Indian Penal code volume 1 last seen on 23/02/2020.
  22. Navtej Singh Johar vs. Union of India AIR 2018 SC 4321.
  23. Sheila Mysorekar, Homosexuality is not a disease, D+ C Newsletter, Available at last seen on 24/02/2020.
  24. Ibid Note 21.
  25. Obergefell vs. Hodges 576 U.S. 2015.
  26. Till law do us apart? Homosexual couple approaches Kerala HC seeking to register marriage under Special Marriage Act, Bar and Bench Available at last seen on 25/02/2020.
  27. Indrajeet Santoshi , Homosexuality in India: A Controversial Issue, Vol 1 Issue 4, International Journal of Academic Research and Development,63,64 (2016) Available at last seen on 20/02/2020.
  28. Nayantara Ravichandran, Legal Recognition of Same Sex Relationship in India, Vol 5, Articles section of, 96,101 Available at last seen on 22/02/2020.
  29. Supra note 21 at 6.
  30. Supra note 26 at 7.
  31. The Surrogacy (Regulation) Bill, 2019 (pending).

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