Table of Contents
Marriage is a social and ritually recognised institution, traditionally between a man and a woman. Marriage is an integral part of every person’s life. It is through marriage that the human race has promulgated future generations. Marriage is the most important foundation of human society. It is a universal phenomenon and is the spine of human civilisation. We can say that the Marriage is as deep-rooted as the institution of the family. Both these institutions are crucial for the society.
Conjugal View is: Marriage is the coalition of a man and a woman who make a perpetual and absolute commitment to each other of the type that is inherently fulfilled by bearing and raising children together.
Revisionist View is: Marriage is the coalition of two people (whether of the same sex or of opposite sex) who commit to passionate love and care for each other and to sharing the responsibility and benefits of domestic life. It is essentially a union of hearts, emotions and minds, improved by whatever forms of sexual intimacy both partners find agreeable.
Same-sex marriage is also called as gay or a homosexual marriage. This marriage is a formal union of two people of the same sex; a marriage otherwise marriage-like relationship between two women or two men. The legalization of same-sex marriage is described as “redefining marriage” by many opponents. The first laws enabling same-sex marriage in modern times were enacted during the first era of the 21st century. And as of June 12 2019, thirty countries like Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, Netherlands, New Zealand, Norway, Portugal, Spain, South Africa, Sweden, United Kingdom, Uruguay,Taiwan , Austria ,Germany and several sub-national jurisdictions including parts of Mexico and the United States allow same-sex couples to marry.
Same-sex Marriages Around the World
When it comes to LGBT rights, there is still a very real battle for equality. In many countries, it is shameful to be anything but heterosexual. Members of the LGBT group often have to prove their worth in the workplace, and in community as a whole. The outlook for them is a bit positive in the US and in a few more countries, but there is still much effort to be done before the LGBT community is respected and cherished all over the world.
USA: In the United States, same-sex marriage has been legitimate nationwide since June 26, 2015, when the United States Supreme Court decided in Obergefell v. Hodges that state-level bans on same-sex marriage are unconstitutional, overruling Baker v. Nelson. The court said that the denial of marriage licenses to same-sex couples and the denial to recognize those marriages performed in other jurisdictions breaches the Due Process and the Equal Protection clauses of the 14TH Amendment of the US Constitution.
UK: The statute to allow same-sex marriage in England and Wales was adopted by the Parliament of the United Kingdom in July 2013 and came into force on 13 March 2014, and the 1st same-sex marriage took place on 29 March 2014. Legislation to permit same-sex marriage in Scotland was pass by the Scottish Parliament in February 2014 and came into force on 16 December 2014. The first same-sex marriage ceremonies took place on 16 December 2014 for same-sex couples formerly in civil partnerships. The first same-sex marriage for couples not in a civil partnership took place on 31 December 2014. The Northern Ireland Executive has specified that it does not intend to initiate legislation allowing for same-sex marriage in Northern Ireland. Same-sex marriages from other dominions are treated as civil partnerships.
Law and Homosexuality in India
The Impact of Koushal
Koushal holds that there exists a presupposition of constitutionality of a legal provision, and hold forth that there is a belief that the legislature would act in the greatest interests of the people. Indeed, it goes so far as to state that even pre-Constitutional laws may be considered a expression of the will of the Indian people. The Court passed over that the decisions cited by it had pointed out that a valid law may become invalid with the passing of time.
Secondly, the Court maintained that the classification between those indulging in sexual intercourse in the ordinary course and against the order of nature is intelligible, in order to hold that Section 377 was not violative of Article 14 of the Constitutionof india. This overlooked precedents which require a explanation of the classification in relation to the stated objective being pursued.
Thirdly, the Court stated that Section 377 does not violate Article 15, providing no reasons whatsoever. This is exceptionally odd considering the most powerful and appealing section of Naz Foundation provided the judicial reasoning as to why discrimination on the grounds of sexual orientation was violative of Article 15 and that the term “sex” in the Article included “sexual orientation”. Similarly, the Koushal bench discussed some landmark cases under Article 21 but did not stipulate any reasoning as to how Section 377 is not in violation of Article 21.
However, the Supreme Court has decided to hear arguments on a curative petition filed by Naz Foundation. One of the grounds pleaded in the petition is that Koushal did not take into account the Criminal Law (Amendment) Act, 2013 that now criminalises forced peno-non vaginal sexual activities. Another ground in the petition is that the Court mistook government tintention in not amending Section 377 in 2013 – the Lok Sabha abstained from considering such an amendment since the matter was sub judice.
The Landmark Judgment of Section 377
For the sake of better understanding of the judgment given out by the Supreme Court in the case of Navtej Singh Johar v. Union of India concerning section 377 of Indian Penal Code. The supreme court while delivering the judgment laid down the following aspects-
Section 377 of IPC is arbitrary and irrational and hence it is liable to be struck down partially to the extent to which it criminalises consensual sex between two adults. The court however laid down that a person indulging in any kind of sexual activity with that of animals will still be a criminal offence under section 377 of IPC.
Sexual orientation being a biological phenomenon, any discrimination which solely made on this ground would be held to be violative of fundamental rights of the citizens.
The LGBT community owns the same fundamental and human rights as others and shall not be discriminated in any way.
It is the duty cast on the court to protect and uphold the dignity of each and every individual in the society, the right to live with dignity is a fundamental right granted to each and every citizen by the Indian Constitution.
Section 377 of IPC was indeed used as a weapon to harass the members of the LGBT community and they were discriminated as against other citizens which would no longer continue to exist.
Civil Partnerships – a Fair Alternative?
One alternative to persue the legal recognition of same-sex couples is not through marriages but as civil unions or partnerships. Statute recognising civil unions have been passed in many states in the USA, several Latin American and European countries, Australia and New Zealand. Different examples of civil unions have been implemented in these dominions. Certain states of the USA have recognized domestic partnerships that are only recognised by city councils and private companies who extend spousal benefits to the same-sex partners of their employees. Countries like Germany has given only limited legal rights on those who are entering a civil union. The authorized benefits are limited to laws relating to tax, pensions and adoptions. The Supreme Courts of New Jersey have held in the recent that same-sex couples cannot be barred from the benefits of marriage but the State can determine whether the advantages should be conferred within the context of a marriage or whether a similar domestic partnership is to be preferred. Such ‘separate but equal’ organisations should be in the nature of marriage and should give the same legal benefits as a marriage.
In 1999, France passed a law governing civil partnerships and in 2013, it later on recognized same-sex marriages. Similarly England and Wales recognised civil unions in 2004 but have legislated to recognise same-sex marriages in 2013.
If a civil union mode is to be adopted in India, it would be mandatory not only to pass a new law governing civil unions but also amend or modify legislations like the Indian Succession Act, 1925, Guardians and Wards Act, 1890, Workmen’s Compensation Act, 1923 and several other legislations relating to succession, adoption, pensions etc. so that a companion in a civil union is given the same position as a spouse and considered to be ‘family’.
Same-sex Marriage under Personal Laws
In India, marriages have a powerful religious and cultural importance as well as social importance. Marriage is considered to be a sacrament and the pious ceremonies are an essential part of the marriage.
In this situation, the most satisfactory way would be the recognition of same-sex marriages under Indian personal marriage laws. In India, Hindus ,Muslims and Christains have different laws in relation to marriage, succession and adoption etc. The Hindu Marriage Act that governs Hindus, Sikhs, Jains and Buddhists states that a marriage may be solemnised between any two Hindus. It also expressly provides that the bridegroom should have attained the age of twenty one and the bride eighteen. The Christian Marriage Act provides that the age of the man shall be twenty one and the age of the woman eighteen. Since Muslim marriages are not governed by a law, there is no legal definition of ‘marriage’, but they are considered to be a contract for the object of procreation. Thus, all Indian personal laws appear to visualize marriage as only a heterosexual union.
Recognition of same-sex marriages under Hindu personal laws can be attained by any one of the following methods: (i) by interpreting or explaining the existing law to permit same-sex marriages, (ii) interpreting that the LGBT society comprises of a separate community and the customs of which allow same-sex marriages, (iii) analysis of the Hindu Marriage Act, 1956 (‘Act’) to allow same-sex relationships, on the ground that it would otherwise be declared unconstitutional, or (iv) amending the Hindu Marriage Act toallow same-sex relationships.
Since the Act is unbiassed in relation to gender apart from the use of the terms bride and bridegroom, it is likely to argue that same-sex couples can get their marriages solemnised under the Act only if one of them is characterised as the bride and the other as the groom. This attempt has been tried by lesbian couples, where one partner posed herself as the bride and the other as the bridegroom.
Another approach would be to attain recognition of the LGBT community as a community of its own that has its own customs , traditions and practices. The Arya Samaj and the anti-Brahmin Self-Respect movement in Tamil Nadu devised their own marriage ceremonies and practices. While the Arya Samaj got appealed by the Hindu scriptures in its marriage ceremony, the Self Respect marriages did not do so. But both these systems of marriages got recognition when the Act was amended in Tamil Nadu by incorporating Section 7-A to recognise Self-Respect marriages. The LGBT community could agree on a common marriage ritual and ask for recognition under the Act. But the struggle is that members of the LGBT community are governed by different personal laws and follow diverse customs and practices. Unlike the Arya Samaj is or the followers of the anti-Brahmin movement, they are not unified by a desire to bring about specific reforms in Hindu marriage ceremonies.
The third approach would be to call for reading down of the provisions in the law governing Hindu and Christian marriage laws by the judiciary so that same-sex marriages are recognised, on the ground that a interpretation of these laws as prohibiting such marriages, would make the relevant provisions unconstitutional by discriminating on the basis of sexual orientation. While this approach was backed by the reasoning provided by the Delhi High Court in Naz Foundation, after Koushal, it seems that the judiciary may not be receptive to such arguments.
The difficulties in these three approaches apply equally to all personal laws. Since none of the above approaches seems feasible, the final course would be to seek statutory amendments to the personal laws. This most satisfactory solution would perhaps also be the most difficult to achieve in practice. Such a debated legislative move will not be the priority of the government even if it were to be in support of such a measure. As a case in point, when Koushal was being listen to, the Attorney General enlightened the court that the Government of India was not seeking a reversal of Naz Foundation, but after Koushal, the Government did not initiate any move to revock section 377. Further the Bharatiya Janata Party has unequivocally supported Koushal.
Same-sex Marriages Under the Special Marriage Act
An amendment to Special Marriage Act, 1954 to permit same-sex marriages will not raise religious hackles .The SMA is a secular statute that enables marriages between people of different religions or those who do not wish to be bound by their personal laws. Instead of a sacred religious ceremony, a Marriage Officer as percribed by the law , registers the marriage. In its existing form, the SMA seems to operate to heterosexual couples, since it requires that the male should have attained the age of 21 years and the female should have attained the age of eighteen years. But it is not complex to accommodate same-sex marriages within the framework of SMA. It is only essential to amend Section 4(c) so that it interprets that a male, should have attained the age of twenty-one years and female, should have attained the age of eighteen years and add a specific provision that same-sex marriages are permitted. even if personal laws of different religion are amended to recognise same-sex marriages, the Special Marriage Act would have to be modified to give the same recognition to relationships between people belonging to different religions.
Today, sixteen countries have enacted such laws starting from the Netherlands in 2000 to Ecuador in 2019 Similarly, thirteen states in the USA have passed laws permitting same-sex marriages. But there are some anti-same-sex legislations as well. The US Congress enacted the Defence of Marriage Act 1996 (‘DOMA’) to deny central aids to same-sex couples married under State laws. While DOMA was struck down by the US Supreme Court, the challenge to DOMA in the Supreme Court was strongly defended by Republican groups, though the Obama Administration did not support the Act.
After Naz Foundation, this option of reading down of Special Marriage Act seemed very promising. The outcome had highlighted that Article 15 of the Constitution conferred personal sovereignty on all individuals and prohibited discrimination on the basis of religion, race, caste, sex and place of birth. The Naz Foundation court stated that sex as a ground comprises within it sexual orientation as “discrimination on the basis of orientation is grounded in stereotypical judgments and generalisations about the conduct of either sex.”
The decision also mentioned several foreign precedents in lieu of these propositions. Thus a strong argument could have been developed that if the Special Marriages Act, a secular legislation, only allow marriage between couples belonging to different sexes, it would be discriminating against same-sex couples on the basis of sexual orientation and as such this would be in violation of Article 15 and hence unconstitutional.