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Analysis: Same-Sex Marriage in India

Marriage is a common relationship of culture that is only known as male-female, although most of the marriage laws use gender-neutral terminology. Whereas there have only lately been many instances of the acceptability of homosexual marriages, culture becomes slowly becoming indulgent. This reform is also mirrored in Navtej Singh V. Union of India, where Section 377 of the IPC was struck from the Supreme Court.

However, despite a large number of protests from groups and individuals who claim that same sex marriage must be accepted lawfully, many states have maintained their constitutional bans on homosexual marriages. Also, in many countries , including India, the same-sex relationships are not legally recognized and many of the legal and financial rights granted immediately to marital status are therefore refused in homosexual couples, irrespective of their length.

These include jobs, the freedom to file shared tax returns-health benefits and rights resulting after a partner 's death, like international inheritance etc.-and may also be particularly relevant from the emergence of AIDS. In culture as a whole, patriarchal de facto couples are supported with all such advantages which remain inaccessible for gays.

History
Homosexuality has an long past of India and several manuscripts reveal it in ancient times in India. Ancient scriptures such as Rig Veda, statues and vestiges from about 1500 BC portray sexual activities between women as revelations in a feminine universe in fun and fertility. The photos of homosexual activities in the Kamasutra as well as of young boys held by Muslim nawabs and Hindu aristocrats are some of the documented evidence of homosexuality within the Muslim Medieval period, the proof of sodomy among Tantric rits relationships.[1]

But with the advent of Vedic Brahmanism and later British Colonization, these encounters started to become less important. Giti says the Aryan invasion of 1500 B.C. began to subdue homosexuality due to the patriarchy 's emerging domination. There are references in the Manusmriti to penalties like caste loss , high monetary fines and whip strokes for gay and lesbian behavior.

For married women, it is remembered that the 'waiting of maids' will be rewarded with the bald shave of a woman, the fingertips cut and then the donkey paraded. The more shocking penalty charges provided to married women by Manu that indicate that such relationships are common among married women and that unmarried women are more tolerated.

Such examples, in either case, point to the contradictions in the Brahmanical Party norms of compulsory heterosexuality. Given the variations in apparent temperament and equality, all cultural structures coexisted, before British colonization became more systemic and explicit the suppression of gay representations and of sexual identity in general. The prudish ideals of homophobia and Victoria view explicit sex photos as 'pornographic and bad.'

After colonial development, reproductive expectation regarding sexuality has been strongly conditioned by the western point of view. Such victorian principles and behaviors have successively been translated into the elucidation of imperial sexual behavior and can be sensed by responses to any or some form of 'unnatural' sexual conduct. Instead of natural expressions of the desire which were once a part of Indian culture, India accepted that the Western concept of "moral and psychological" sexuality is "pathological."

Over the last century, the definition of homosexuality shifted significantly. Homosexuality was no longer viewed as an irregular activity after 1974 and was therefore excluded from the psychiatric illness classifications. This was also de-criminalized in 2018 in different nations, including India.

Many nations across the world have also adopted legislation and measures to secure the freedom of gays and lesbians against bigotry without fair chances. In 1994 , South Africa becomes the first government to recognize the freedoms of homosexuals and gays in a civil way.

Also specific law extends to Australia, Germany, Luxemburg, the Netherlands , Switzerland, Iceland, Denmark, Sweden, and New Zealand. The U.S. Supreme Court held in 1996 that no state should legislate against homosexuals for bigotry. Homosexuality was recognized in 2018 by the Indians in the case of Navtej Singh after decriminalizing section 377 of the IPC V. Union of India.[2]

Same-sex Marriages: The Global Scenario

Around the world, countries are in different situations regarding homosexuality and same-sex marriage. Many countries are very accepting of these relationships and legally allow same-sex marriages and at the same time many countries are very disapproving of homosexuality and even consider it as a crime. Facing the issue Public officials assume separate approaches from gay associations.

Occasionally, they clearly embrace the practice while at certain occasions, under the basis of preventing bigotry against citizens of same genders, they support the legal acknowledgement of these unions. For other instances, they decide to provide moral equivalence to lawfully formed gay partnerships and to allow children the equal right for adoption. As a result, more and more states have decriminalized homosexual activities in multiple nations.

Nevertheless, given the numerous claims raised by organisations and people who argue that such statutes are outdated and must be repealed, numerous nations nevertheless maintain their legislative bans against homosexual activities.

Nevertheless, over the last century the definition of homosexuality has shifted significantly. Homosexuality has ceased to be an abnormal behavior since 1974 and has been excluded from mental disorder categories. Homosexuality in several nations has since been de-criminalized. A variety of countries around the world have adopted legislation and policies on anti-discrimination or equal opportunities to secure homosexual rights.

Changes against homosexual marriage and bans generated the controversy internationally in the late 1990's and early 2000's. Currently in 25 countries including the Netherlands , Belgium and Canada Brazil, South Africa and Germany, same-sex marriage has legal status. With this, around 155 million or approximately 2.5% of the world's population live in places where homosexual marriage is the same exists[3].

In Australia, Denmark , Finland, France , Switzerland, Switzerland, Greenland, Israel, New Zealand, Norway, Portugal, Slovenia, Sweden and the United Kingdom, the bulk of civil partnerships and other forms of formal acceptance to same sex partners giving, though not any privileges of civil marriage are practiced. Australia's regions and other territories in the United States provide civil unions with certain rights and responsibilities.

The significance is often represented in activities like Brisbane's Mardi Gras, Midsumma in Sydney, Johannesburg's Gays & Lesbian Pride, Greece's Women's Holiday Week, the Lisbon homosexuelle Lesbian Festival. Homosexual partnerships have been globally and politically and lawfully recognised in many nations.

Although homosexuality is a heinous offence for more than 70 nations, it is also subject to execution in Afghanistan, Mauritania, Iran, Nigeria , Pakistan, Saudi Arabia, Sudan, United Arab and Yemen and to lifetime incarceration in Burma, Bhutan, Georgia, Indonesia, Maldives, Singapore, the United Arab Emirates and Yemen. Homosexuals often differ in their legal status from country to country. In England , for example, homosexual sodomy marriages between adults with consent are not illegal until they are 21 years old and are held privately .

Arguments By Those Against Same-Sex Marriage

It's not a democratic but instead a theological discussion. A great many men, we are against it particularly in India because we find it barbaric, uncouth and immoral. Mr. Manmohan Singh, former Premier, questioned what he felt regarding the Canadian rule on gay partnerships appreciated[4]. The citizens against it was founded on conviction in religion and natural justice.

Some don't consider it as normal because they can't replicate babies. This is religious, God produced Adam and Eve because homosexual marriage were permitted, we never find comments in Genesis about Adam and Steve. Why misrepresent the rule of Christ, if gay marriage was permitted, If nature wished gays to coexist, then one sex rather than separate sexes should have developed.

The culture is built on marriage and partnership of men and women. Why not marry my cousin, my sister, or my cat, if gay marriage is natural. Don't I get fair treatment for lgbt men because they're behind us. Note that the rule is here prohibited. The structure of civilization was created to be held intact. This violates the rules of the land used for thousands of years and centered on the commandments.[5]

Arguments By Those In Favour Of Same-Sex Marriage

The question of equal equality is about love and liberty and denying marriage to those of our fellow people who require that implies restricting their rights, treating them unjust, physically and morally disadvantaging them and risking them severe personal harm. It is a punitive action that requires a sound reason to not legally allow anybody to marry; cultures need to render restrictive legal prohibitions only if they're convinced that such prohibitions are necessary to prevent personal and social damage.

That is what led to the greatest legal minds who have discussed that issue: when for example, the judges of the US Supreme Court told some lawyers who supported gay marriages why none might give a rational argument as to what damage it might bring to the rest of society.

Yes, nobody is affected by the same sex union. The claim that heterosexual marriage in any form hurts is deluding; no one's union is harmed by anyone else, and the legitimacy of the right of a individual to marry rests not on the rejection of anyone else. No suffering from the same sex marriage legislation has ever been reported. After 2001, the first time the Netherlands has done this, the countries which validated such laws have not been influenced by the weather.

There are 25 countries currently in which the same sex marriage is legal and no frog or death of firstborn children has been the topic of all of them, like the United Kingdom and the United States. Indeed, there have been no harm to culture or deterioration of the legitimacy of traditional marriage in any place where same-sex weddings are lawful. None. Zero. Period.

Same-Sex Marriage Under Personal Laws

Relational partnerships and weddings have a strong cultural and social significance in India. The divine roles form a central aspect of which, which is called a sacrament. It clarifies the various situations of lesbian marital relationships such as the operation of church ceremonies, the feast exchange of shrines in certain instances.

For examples, in 1988, a Hindu service married two policewomen. While their marriage could not be registered and even their jobs was revoked, their families and their cultures approved their union. It is interesting that the numerous homosexual partnerships between residential and non-English - speaking people who are not linked to the LGBT were commonly proclaimed movement[6].

Accepting same-sex marriages under Indian personal marriage law is the right way in all this. In Indian christians , Muslims and Hindus, the laws of Hindu marriage, which include Catholics, Sikhs, Jain and Buddhists, affirm that marriage will take place between two Catholics in nature, in connection with birth. Arvind Narrain also notes that the woman must be 21 years old and that the father must be eighty at least.

A individual is 20 years old under the Christian Marriage Act and a man's age is 18. As the status of Muslim partnerships does not matter, there is no formal concept of 'marriage,' but the provisions of the arrangement with the end aim of procreation are routinely recognized. The union in all Indian personal rules tends to be a patriarchal organisation.

Recognition under Hindu personal law of the same-sex marriages can be achieved using either of the methodologies used:
  1. Interpreting the current legislation in order to legalize partnership unions of same genders lawfully.
     
  2. Defining the LGBT culture as a separate category and whose practices provide for friendship with the same genders.
     
  3. To legalize marriages between same genders, perusing the Hindu Marriage Act of 1956 on the basis that it was somehow unconstitutional.
     
  4. Amending the Act to allow same-sex marriages.

Because the rule is gender neutral, so the word wedding does not apply, it may be argued that same-sex couples are solemnized by regulation, unless one of them is wife and the other is male. Lesbian couples tried to do that. One wife is the bride and the other the bride. This argument can not be backed by substantive legislation, because it restricts the scope of the statute and contradicts the traditional interpretation of the phrases engagement, mother and engagement.

The meaning appears also to homogenize relationships between the same genders and conventional weddings. This understanding is upholding conventional suppressive assumptions of gender, that races naturally are distinct, that two parties have pre-established positions in the family, and that only same sex partners ought to embrace traditional roles in a way to maintain a romantic partnership and make them more same married.[7]

The LGBT culture as a culture which has its own traditions and behaviors should also be remembered. The Arya Samaj and the self-respect anti-Brahmin agitation in Tamil Nadu set up their own wedding customs and practices[8]. The Arya Samaj formulated the Hindu scriptures during its wedding ceremony, but the marriages of self respect did not.

However, all these marriages were acknowledged when in Tamil Nadu the Act was modified by adding Section 7-A to recognise self-respect marriages[9]. A traditional custom in marriage and the acceptance of this statute should be accepted by the LGBTQ people. The challenge is that LGBT leaders follow different customs and practices with different personal rules. Contrary to Arya Samaj, or the anti-Brahmin adherents, they are not unified by a desire to make such changes at the Hindu marriage ceremony.

The third option is to push for the statute on Hindu and Christian matriotic freedoms to be interpreted in such a manner as to acknowledge gay marriages as the laws banning these marriages will render them illegal and that the prejudice based on sexual identity should be taken out. The third solution will require allowing them to be interpreted by judiciary.
Both personal laws apply equally to the issues of these three approaches.

Since no other solution seems to be practicable, one will wind up trying to change specific legislation by regulation. Growing the most effective approach in reality will often be the toughest to achieve. That will be extremely problematic owing to a prominent segment of society being aggressive to the LGBTQ culture. It would also be seen as interference in religious groups' practices and customs. Such a contentious regulatory change is not the government 's priority, even if it favours such a plan.

Same-Sex Marriage Under The Special Marriages Act

Another way to avoid increasing moral hackles is to try to change the Special Marriage Act of 1954 to enable weddings of the same sex. The SMA is a lay law which makes it easier to marry people of different religions or who do not want their own laws limited. The marriage officer records the engagement rather than a religious ceremony. As it is, the SMA seems only to refer to heterosexual couples as it specifies that the men should be 21 years old and that the women should be 18 years old.

But it is not impossible in the system of SMA to accept same-sex marriages. Section 4(c) should only be changed so that a participant may have age 21, when it is male, and when a female, 18 to include a specific provision that same-sex marriage is lawful. The modification of Section 4(c) is only necessary. In each case the SMA should be changed to give equal approval to the partnerships between persons of different faiths even if personal laws were updated to acknowledge same sex marriages.

While an amendment is the best legal choice, after the establishment of a BJP government, it may still be challenging. The BJP clearly supported the decision while the congress and the CPI(M) had decriminalisation on their Lok Sabha election manifestos a party leader who states that homosexuality is immoral.

Although the changes in question are easy to formulate and can not be said to hinder freedom of religion, they are bound to create vocal opposition. The SMA provision would be identical to those introduced in other countries to legalize same-sex marriages. Now, from the Netherlands in 2000 to Britain and the USA in 2015, 25 countries have enacted these rules.

Is Civil Unions A Fair Alternative?

The official acceptance of same sex couples is not by marriages, but through civil unions or associations, one of the more common alternatives. Civil union regulations have been enforced in many United States of America before homosexual marriage has been allowed in the United States, many Latin American and European countries, Australia and New Zealand. In these states, various models of civil unions were introduced.

Four nations in the USA have civil partnerships, but are only accepted by local bodies and private corporations that offer spousal insurance for their employees' same-sex partners. Countries such as Germany have given those joining a civil union very restricted legal rights.

The regulatory protections are restricted to payroll, insurance and adoption rules. Many templates such as those accepted by the Supreme Court of Vermont Vermont[10] provides partners with the same legal benefits as those who are joined in marriage.

The Supreme Courts of Vermont[11] and New Jersey[12] In recent past, courts also maintained that same-sex couples can not be disqualified from marriage benefits, but that the State can determine whether they are to gain in a marriage or whether they are to choose alternative domestic partnership. Such structures should be "separate but equal," should be marital in essence and offer the same legal advantages as marriage.

The advantage of this model, at least for religious purposes, is that it faces less opposition and avoids the acerbic debate about whether 'marriage' is heterosexual necessarily. This was also the first to behave move toward recognizing partnerships of the same race. In 1999, a civil partnership law was passed by France and in 2013 same sex marriages became legally recognized. Similarly, in 2004, England and Wales approved civil unions but in 2013 passed legislation on the recognition of same-sex marriages.

Nevertheless, it is unfair to allow civil unions the privilege of excluding equal-sex marriages, as a class of people were given only a choice which has an intrinsically lower status than marriage. Marriage is not only a contractual relationship, but a partnership which allows partners to obtain legal advantages and privileges. The task in providing legal as well as social recognition to a partnership is equally fundamental. Some of the benefits of marriage involve giving a wife higher status than others and certain privileges such as decision-making powers when the wife is disabled, recording deaths, etc.

Therefore, since they implement the same legal rights two institutions are not necessarily equal. Marriage as an institution has a cultural and social significance that is historically important to civil union. For same-sex couples, the social status granted by marriage is equally fundamental as heterosexual couples. In spite of giving them the same legal rights, a law which allows same sex couples to enter civil Unions will discriminate against them on the basis of their sexual orientation. Therefore, it is essential to recognize that civil unions are not equivalent to heterosexual relations in lieu of marriage. In the words of Justice Ginsberg, the Supreme Court of the United States , two types of marriage "full marriage" and a sort of "skim-milk marriage" would be acceptable.

It will be essential not just to enact a civil union model in India, but also to amend relevant laws such as Indian Succession Act, 1925, Guardians and Wards Law, 1890, Workmen's Compensation Act, 1923, and numerous other laws on succession, adoption, pensions, etc. in such a way that a civil union partner is awarded the Civil Union Partnership On the opposite, legislation in particular on such an issue, in which considerable resistance is likely to occur, would possibly be delayed. Although this can not be said to conflict with religious liberties, it may be objected on the grounds that it offers both heterosexual and homosexual, which violates Indian culture, with legal approval of non-marital living relations. So the adoption of law that acknowledges trade unions is like the correct path, except on political grounds.

Conclusion
It should be allowed or not depending on the whole debate on the subject of the same sex marriage. It's not a democratic but rather a religious debate. The ultimate conclusion in which I have found all the reasons for and against the legalization of same-sex marriage is that homosexuality is not an offense; it is only a way to find love, to seek physical fulfillment or to obtain lust or enjoyment.

Apart from the blind harm which restricts two gay men to a civil ceremony that gives them the rights and security heterosexual couples enjoy, I can see absolutely no justification. Love is a promise and a loving shoe which proclaims the world's affection. How does this harm or damage the values of marriage whether two men or two ladies wish to show their love and commitment? I assume that passion and devotion are clearly demonstrated.

We do not live in an age when the freedom of preference of a person is valued, and India must not be free country. Homosexuals have been branded as abnormal in our society. Homosexuality, though, is neither modern nor alien to the Indian culture, nor ever ever, usually and with far less action. The best approach to addressing homosexual marriages is very comprehensive and complex.

Nevertheless, it needs to be seen how effective and practical this strategy is. There is, moreover, a growing perception that our current method of not promoting marriage between homosexuals does not support homosexuals or protect society as a whole. Therefore, in order to progress towards human rights we need to legalize same-sex marriages.

References:
  • https://shodhganga.inflibnet.ac.in/bitstream/10603/191572/18/18_chapter%206.pdf
  • http://docs.manupatra.in/newsline/articles/Upload/B07BDF52-0AA4-4881-96AC-C742B9DB217D.pdf
  • http://www.delhihighcourt.nic.in/library/articles/legal%20education/Homosexuality%20in%20India%20-%20The%20invisible%20conflict.pdf
  • http://www.legalserviceindia.com/articles/semar.htm

End-Notes:

  1. http://www.legalserviceindia.com/articles/semar.htm
  2. https://indiankanoon.org/doc/168671544/
  3. http://www.fsw.ucalgary.ca/ramsay/gay-lesbian-bisexual/3ta-south-asia-homosexuality.htm
  4. http://www.fsw.ucalgary.ca/ramsay/gay-les bian-bisexual/3ta-south-asia-homosexuality.htm#India%20Films
  5. According to a study by the Amnesty International
  6. http://www.legalserviceindia.com/articles/semar.htm
  7. https://www.lawctopus.com/academike/same-sex-marriages-in-india
  8. http://docs.manupatra.in/newsline/articles/Upload/B07BDF52-0AA4-4881-96AC-C742B9DB217D.pdf
  9. https://www.cambridge.org/core/books/samesex-marriage-and-the-constitution/DF910FE04751035707FEBEC6BCDD1440
  10. Ruth Vanita, supra note 29, at 344
  11. Hindu Marriage Act, 1955, S. 7-A
  12. Baker Baker, supra note 33
  13. 15 v. Vermont, 744 A 2d 864 (Vt 1999)
  14. Lewis v. 188 NJ 415 : 908 A 2d 196 (NJ 2006).
Written By: Ishank Bangarwa

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