Rashbana Thansi

Government Law College, Kozhikode

India’s highest court has overturned a colonial-era law that criminalizes consensual gay sex in a landmark judgment. It was a hard-fought victory for the Lesbian/Gay/Bisexual/Transsexual/Queer (LGBTQ) community. Though Section 377 of the Indian Penal Code (IPC) was revoked by this judgment, same-sex marriage was not legalized. In the Indian concept, marriage means a union of a man with a woman, strictly heterosexual. 

On 25 February the Central Government submitted an Affidavit before the Delhi High Court stating that the same-sex couple cannot claim their right to marriage despite the Supreme court decriminalizing homosexuality in 2018. The government insisted in the affidavit that “Marriage is not just a matter of the union of two individuals, (but) a solemn institution between a biological man and a woman”. The affidavit also referred to the term like Bride, Bridegroom, Father, Mother. The affidavit affirmed the Indian mentality of a hetero normative society.

This poses a problem for LGBTQ couples across India. For instance, Vibhav and Paragh are in a same-sex relationship. They are very popular on social media. Paragh being an American citizen comes from a background where same-sex marriage is legal. Vaibhav however, is an Indian citizen working in America. While they have registered their marriage in the USA, their marriage registration was denied by the Indian consulate in the USA since their marriage is not legally valid as per Indian laws. During the pandemic, Vaibhav wanted to come to India for his parents, but Paragh couldn’t accompany him to India as a spouse since they are not a legally wedded couple.

This is only one instance of discrimination against LGBTQ couples. There are so many couples like Paragh and Vaibhav who are denied their rights frequently by the government behind a curtain of draconian laws. Often, this discrimination is a violation of their constitutionally guaranteed fundamental rights.

On January 6th 2021 the national newspaper, Times of India, covered a story about the legal battle of Arora and Khana.¹ A homosexual couple who fought for their legal recognition. The “beautiful relationship” between them is not accepted by the law and society until the decriminalization of article 377 happens. Arora worked as a psychiatrist, and Khanna is a psychologist. Since 2006, they worked together at a mental health service co-founded by Arora that focuses on treating children and adolescents. Their relationship started in 2012 and they eventually moved in together, brought the news to their families, and found support among friends and colleagues. In October, they filed a plea in Delhi court seeking the constitutional right to marry arguing that without official recognition, they are “strangers in law.”

Their petition, along with two others, will be heard by the court starting January 8, beginning what could be a years-long legal battle for marriage equality for the more than 2.5 million Indians who identify as LGBTQ. India’s solicitor general said “concept of same-sex couples is against our culture and values and we don’t recognize same-sex marriages”.

On May 4, 2021, the Centre asked the Delhi high court to take up a plea, seeking recognition of same-sex marriage. The high court that it was caught up with the COVID -19 situation and pointed out ” Nobody is dying because they don’t have a marriage certificate”. In a democratic country, a group of people still fighting for their legal rights. This is not fair. Sourav Kripal, a very famous lawyer who helped to challenge the law of criminalization of same-sex relationships says that “in a survey of 2019, (2)62% of respondents are not supporting the same-sex marriage as well as relation. Society is not going to rush embrace same-sex marriage, but that is not what we are looking for”.² The major argument with homosexual marriage is about the purpose of family-making.

In the Indian concept, the father, mother, and their children are the basis of a family system. But the truth is two fathers and children, two mothers and their child can also be a family. Scientific research has affirmed time and time again that same-sex couples are as fit and capable as heterosexual parents. ³ Their children are also found to be as psychologically healthy and well-adjusted as children reared by heterosexual parents.⁴ Homosexual couples can become parents through alternate methods like adoption and surrogacy. 

There are some privileges for the married couple from the government side. like inheritance of property. After the death of the husband, the wife can inherit his property. This is not possible in same-sex marriage as it is not a legal union. Consequently, the rights of the children in a same-sex marriage are denied. The possibility of adoption or hiring the services of a surrogate mother is also denied because of the illegality of the marriage.

When discussing homosexual marriage the important part is the statute existing in India like Hindu Marriage Act,1955, Special Marriage Act 1954. All the listed Acts only discuss the heterosexual form of marriages pointing to the union of a male and female. Without exception, all of them define marriage as a union of a male and female.

In the Naz Foundation case (2009)⁵ it was held by the Court that “the protection against discrimination on the ground of sex under articles 14 and 15 means sexual orientation as well as gender”. This clearly shows that the affidavit filed by the central government in this regard is squarely against the fundamental rights of persons belonging to the LGBTQ community. This Affidavit declares that the culture of our country is against homosexual relationships. Nothing can be farther from the truth. In Kittitas Ramayana, two widows of kings keep living together in extreme love. Kamasutra mentions physical pleasure in male-male unions in vivid detail (circa 4 A.D). Famous 18th-century poets Insha and Rangin openly wrote about male-male and female-female (carnal) relations. Sculptures in the Khajuraho temple are also another example of the acceptability of same-sex love. It is very much a part of our Indian culture.

Marriage should be a legally and formally recognized union of two people as partners in a personal relationship irrespective of their gender and not just a union between a man and woman. There should be a law for protecting the rights of the LGBTQ community and legalizing same-sex marriage. legal recognition of same-sex marriage is a matter of human right as far as the LGBTQ community is concerned. In the Transgender Persons (Protection of Rights) Act 2019, the Indian government passes a law for the protection of Transgender person’s legal rights. People including those belonging to the transgender community had expressed strong opposition to the passing of such a law as it is totally against the NALSA judgment.⁶ On the contrary this  Act instead of solving the problems, it pushed them even more. The act fails to recognize the basic needs including reservation, marriage among the community, issues regarding adoption, inheritance of property etc. When a law is enacted for the transgender community, it should consider their needs and problems. When such a law is passed it should be in such a way as it provides a complete solution to such problems. 

Love and sexuality are personal matters. No one could deny justice and legal rights based on anyone’s sexuality or sexual orientation. “Violation of fundamental rights guaranteed in the constitution” is not justifiable it is only a matter of legislation it’s a matter of recognition also.

CITATIONS

1. Abhishyanth Kidangoor,This Indian Same-Sex Couple Is Fighting for the Right to Marry.But is their Country Ready?.TIME ,,(Sept.6,2021 8.30 PM) ,https://time.com/5926324/india-lgbtq-marriage-case/
2. TIMES OF INDIA, Where is the love: 62 per cent Indians say same-sex marriages not accepted, finds Mood of the Nation poll, TIME,(Sep 6 2021, 8.45 PM),https://www.indiatoday.in/magazine/web-exclusive/story/20190204-motn-same-sex-marriage-lgbt-rights-section-377-india-1439545-2019-01-25?utm_source=washare&utm_medium=socialicons&utm_campaign=shareurltracking
3. “Marriage of Same-Sex Couples – 2006 Position Statement Canadian Psychological Association””(Sep.06 2021,9.00PM)
   https://web.archive.org/web/20090419195945/http://www.cpa.ca/cpasite/userfiles/Documents/Marriage%20of%20Same-Sex%20Couples%20Position%20Statement%20-%20October%202006%20%281%29.pdf”
4. Ibid
5. Naz Foundation v. Govt. of NCT of Delhi,2009
6. National Legal Ser.Auth vs Union Of India & Ors on 15 April, 2014