Legalizing same-sex marriages is abysmally overdue

Photo: Mint
Photo: Mint


Denying individuals matrimonial and other rights that emanate from matrimony solely for their sexual orientation is unjust

A tragic tale of forbidden love’ it often is, but should not be. The idea of same-sex marriage in India defies longstanding idealistic facades of morality and culture. The battle against societal taboos and legal prejudices faced by lesbian, gay, bisexual, transgender, queer, intersex, asexual and other members of the LGBTQIA+ community has been onerous and laborious, globally. The Netherlands was the first country to legalize same-sex marriage in 2000, followed by other countries in Europe, the American continent, and South Africa. A total of 29 countries across the globe have recognized same-sex marriages. But India is not one of them.

In 2018, the Supreme Court of India in Navtej Singh Johar vs. Union of India decriminalized homosexuality. Although the observations of the court in its decision are progressive and inclusive, there is still a long way to go for the country to attain legal recognition for same-sex marriages. It is important to note that India does not consider such marriages ‘illegal’ per se. But there are no laws relating to marriage that explicitly authorize same-sex unions. In fact, the language of legal textbooks demonstrates an assumption of exclusively heterosexual marital unions. But, before advocating a firm legislation on same-sex marriages in India, it is important to gauge the rationale behind it.

The LGBTQIA+ community has long fought for its civil, political and human rights. If we look into the constitutional aspects of it, one’s decision to marry a person of one’s choice is essentially a part of an individual’s freedom and thus a fundamental right. Excluding one section of the population from the rewards and dignity of marriage degrades them and undermines their rights. Such exclusion results in same-sex couples being treated differently and exposes them to discrimination not just at the hands of society, but before the law too.

As of now, certain legal benefits and avenues of recourse afforded to heterosexual married couples are not available to same-sex couples. Legalizing homosexual marriage would confer on partners the rights of succession and maintenance, as also important economic, adoption and pension rights, apart from protection against domestic violence.

Legal principles are often drawn along the lines of the religious and moral sentiments of a country’s majority. In India, marital rights are limited to the realm of personal laws. In Islam, homosexuality is typically considered a sin. In Christianity, it is usually condemned. Hinduism, although relatively lenient in this regard, tends to portray marriage as a procreative institution. The Delhi high court in the case of Kavitha Arora (2020) called upon the Centre to clarify its stand on legalizing same-sex marriages, within the ambit of the Special Marriages Act. The prime argument put forth by the Centre was that the idea of same-sex marriage in a country of prominent customs, traditions and religious values would face resentment and a backlash. The matrimonial union of two homosexual individuals can hence only evolve from the ambit of secular laws. In a few European countries, a homosexual association is granted legal status as a civil partnership. While the legalization of same-sex marriages would resonate with the fundamental ideals of India’s Constitution, it cannot emanate from existing personal laws.

The ability to make personal decisions, along with the freedom of choice, is what needs to be recognized. The choice of a spouse is a significant personal decision over which others should have no influence. The apex court in Shakti Vahini vs. Union of India (2018) observed that it would be impossible to think of dignity in its hallowed wholeness if the freedom to “express one’s own choices" is impeded. The right to marry a person of one’s choice has thus been included as an inherent part of Article 21. Citing freedom of choice, the Uttaranchal high court in Madhubala vs. State upheld the live-in relationship of a same-sex couple, but observed that the partners could not enter wedlock. The Odisha high court reiterated that stance in Chinmayee Jena vs. State (2020).

When it comes to constitutional interpretation, rigidity can sometimes lead to bizarre outcomes. The Indian judiciary is responsible for correctly interpreting and expanding the extent of individual rights. Given the current scenario, the court in its authority could direct the government to enact a legislation recognizing same-sex marriages. However, in the absence of such action, and on account of different high courts having adopted varying positions on the subject, their legal status remains ambiguous.

It is to be borne in mind that customs and traditions are bound to evolve with changing times. With the decriminalization of homosexuality, we are only half-way there. Merely decriminalizing homosexuality without giving homosexual partners the right to marry does not prove adequately effective, since it does not give same-sex couples a sense of recognition and belonging in society.

The denial of matrimonial and other civil rights that emanate from the association of marriage to individuals based solely on their sexual orientation is a grave injustice.

The way ahead would entail a lot of learning and unlearning of numerous aspects pertaining to same-sex marriages. Appropriate legislative reforms are indispensable for India to accord same-sex unions their due legal sanction and social acceptance. The onus of this lies on the legislature, as the judiciary can only direct the government to take appropriate measures for justice.

Trisha Shreyashi is a law consultant and a member of the advisory council, Harvard Business Review.

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