SAME SEX MARRIAGES - KALYANINSTITUTE

According to the Oxford Dictionary, homosexuality means the quality of being sexually attracted solely to people of one’s own sex. Homosexuality was considered a mental disorder. The practise of homosexuality has existed in the world since the ancient period. However, this group was discriminated against and abused, and their act was considered immoral, a crime, and a sin.

In India, the act of homosexuality was criminalised by Section 377 of the Indian Penal Code, 1860. However, there was awareness of the fact proven through various clinical studies that homosexuality is a normal form of human sexual behaviour. Thereafter, the homosexual community as well as organisations fighting for the cause of homosexuals started campaigning for legalising such sexual relationships. Many countries have legalised homosexuality as well as same-sex marriages. In India, the Supreme Court’s verdict in the case of Navtej Singh Johar v. Union of India (2018) has partly decriminalised Sec. 377, legalising homosexuality between two consenting adults. However, in India, the law is silent on the point of whether same-sex marriages are legal or illegal, and there is no law governing such marriages, adoption, inheritance, etc.

The term “homosexuality” was coined in the late 19th century by a German psychologist, Karoly Maria Benkert.

According to the Oxford Dictionary, the term homosexuality means the quality or characteristics of being sexually attracted solely to people of one’s own sex. “Sexual attraction is the tendency to direct sexual desire towards another of the same sex.” Until the 1970s, homosexuality was considered a mental disorder. However, through various clinical studies, it has been found that homosexuality is a normal form of human sexuality.

HISTORY OF HOMOSEXUALITY IN INDIA

The fact that homosexuality has existed in India since time immemorial is evident from its references in various texts and sculptures on caves or temples. For e.g.

The Kamasutra uses the term ‘tritiya-prakriti’ to define men with homosexual desires and describe their practises in great detail. It describes lesbians, bisexuals, transgender people, and intersex people.
The Sushrita Samhita and Charaka Samhita also mention “homosexuality.”
Mahabharata and Ramayana
Arthasashtra and Manusmriti
The Khajuraho temple, in Chhatarpur district, Madhya Pradesh, India, consists of various scriptures that show carvings of homosexual activity.

However, in our Indian society, such a practise was considered immoral or illegal. During the Mughal period, it was also a penal offence. During the British period in India, it was made a criminal offence under Section 377 of the Indian Penal Code, 1860.

S. 377 of the Indian Penal Code, 1860, states, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable for a fine.”

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary for the offence described in this section.

This section was incorporated to make the act of sodomy or bestiality punishable. Such acts were considered crimes or sins and were against the fabric and ethos of our society. Thus, homosexuals faced tremendous humiliation and discrimination by society without any fault on their part.

In many marriages, the parties conceal their sexual orientation, which causes frustration, dissatisfaction, and self-hatred.

With the advent of medical research in this field, it was found out that homosexuality is a common natural character trait in a person, wherein he will be sexually attracted to a person of the same gender. It is not a sin or a crime. With the awareness of human rights and modern thinking, the LGBTQI community gained the knowledge that a satisfactory personal life, privacy, and dignity are their basic rights. Therefore, they started campaigning for their rights.

INTERNATIONAL PERSPECTIVE

LGBTQ rights, at the international level, have been restricted mostly at the level of individual nations rather than at a supranational level. The United Nations has not drafted any specific convention on the subject. However, it has led the discussion towards removing the stigma and inherent bias against the community through campaigns and programmes. The United Nations Free and Equal campaign is one example of advocacy calling for equal rights and fair treatment for the LGBTQ spectrum worldwide.

The lack of consensus and varying degrees of acceptability of this community have made the process of uniformity quite challenging for the United Nations. In many nations, same-sex relations are frowned upon and punishable as a criminal offence, in some cases with the likelihood of life imprisonment and capital punishment. One particular attempt that was made in 2006 was the meeting in Yogyakarta to address the concerns of the community. Many prominent non-governmental organisations, leading activists, and academics met in Yogyakarta, Indonesia, and drafted the historic Yogyakarta Principles. This document laid down principles aimed at human rights relating to sexual orientation, gender identity, gender expression, and sex characteristics. These principles not only provide a host of different rights for the community but also impose certain obligations on the state to implement the rights. In 2017, this was revised, and a new document, Yogyakarta Plus, was released.

10 was drafted and adopted, which provided some additional rights and responsibilities for the states to ensure that the community can break free from its discriminatory nature and be treated equally and with basic dignity and respect.

SAME SEX MARRIAGES

The recent verdict of the Supreme Court on Sec. 377 of the Indian Penal Code has given a way or removed the hurdle for same-sex couples to legally enter into consenting sexual relations. But if these couples want to enter into marriage, the law is silent. In the present context, same-sex marriage per se is not illegal or legal in India. No penalties or fines are mentioned against it under any statute in India. So the government should take the initiative to legalise such marriages.

Same-sex marriages are legal in many countries, such as Taiwan, which was the first country in Asia.

On June 26, 2015, the United States Supreme Court issued a landmark ruling that granted same-sex couples a constitutional “right to marry” (Obergefell v. Hodges). In Europe, same-sex marriages are legalised in the Netherlands, Belgium, Spain, Norway, Sweden, Portugal, Iceland, Denmark, France, the United Kingdom, Ireland, Finland, Germany, and Austria.

Italy is the largest Western European country where same-sex marriage is not legal; however, its parliament approved civil unions for same-sex couples in 2016.

In 2005, Canada became the first country in the western hemisphere to legalise same-sex marriage. It was followed by Argentina, Brazil, Mexico, etc.

New Zealand and Australia have also legalised same-sex marriage.

In South and Central Asia, same-sex relations are illegal in countries such as Bangladesh, Pakistan, Iran, Saudi Arabia, and Yemen.

South Africa has legalised same-sex marriages.

The time has changed from traditional heterogeneous marriages to modern families where homosexual relations and marriages are recognised by many countries. ‘Marriage’ is considered an eternal union between spouses who share each other’s pain and pleasure. It is the institution that gives recognition to the sexual relationship between the couple with the blessings of God and the elders. The marriage establishes legal rights and obligations between the parties. The Supreme Court has taken the initiative to legalise consensual same-sex relationships. The government should legalise same-sex marriages by framing laws governing homosexual marriages, adoption, inheritance, etc.

As far as India is concerned, marriages are governed by personal laws. Personal laws are applied depending on the religion to which the parties belong.

Hindus: The Hindu Marriage Act, 1955
Muslims: The Muslim Personal Law (Shariat) Application Act, 1937
Christians: The Indian Christian Marriage Act, 1872
Parsi: The Parsi Marriage and Divorce Act, 1936

The wording in the act clearly shows that it governs only heterogeneous marriages. The provisions are made taking into consideration the gender-wise character of a male and female. The present personal law therefore cannot govern homosexual marriages. Also, same-sex couples are not given the right to adopt a child. They also cannot go for surrogacy in the current legal framework. So a change in law is needed in order to give the LGBTQ community their matrimonial and adoption rights.

The various international conventions like the UDHR, ICCPR, and ICESCR and regional conventions like the American Convention and the European Convention have given a person the right to marry and find a family without any discrimination, even based on gender. These conventions require the member states to repeal the laws criminalising homosexuality and enact anti-discriminatory laws to prohibit discrimination on the grounds of sexual orientation and gender equality.

A positive step with respect to the matrimonial rights of the LGBTQI community has already been taken by the Madras High Court in Arunkumar v. The Inspector General of Registration. On April 22, 2019, the Madras High Court upheld the right of a transwoman and a man to register their marriage under the Hindu Marriage Act, 1955, considering the marriage to be legal.

Under the Hindu Marriage Act, 1955, the term ‘bride’ would also mean a transwoman and not just refer to someone born as a woman. The word bride’ in the Hindu Marriage Act cannot have a static meaning.

THE PATH FORWARD

A clear legislative enactment is the need of the hour that addresses the numerous legal rights that should be protected and safeguarded, along with clear directions and recommendations to states in India to implement the law. This should also include the right to marriage under the Indian Special Marriage Act, 1954. The foundation of this law and its inspiration may be the Yogyakarta Principles and Yogyakarta Plus 10. This was the first major legal document created by a working group in Indonesia. This document is an extremely fruitful one that addresses the concerns of the community from a human rights perspective and is based on the core notions of equality and freedom.

The next possible solution, which is desperately needed in the Indian context, is engagement with the LGBTQ community. This should begin with a more open-minded and broad-minded discussion on sex and sexuality within families and communities. The participation of the community in the mainstream is critical. Privacy should be respected and protected. The fact that one is gay or lesbian does not affect society. It is the sexual preference of a person, and thus, as rightly observed in the Puttaswamy judgement, “equality demands that the sexual orientation of each individual be protected on an even platform”. To that end, what is needed are training and sensitization programmes. The first misconception that needs to be addressed is that it is a matter of choice and not of biology. Many such misconceptions exist in the community, and these need to be addressed with relevant programmes.

Education should be disseminated at all levels, starting with schools as a part of sex education.

It should be taught sincerely and without engulfing it in shame or discernment. Another critical sector is the police and law enforcement. Indian police are not known to be sensitive, and there have been cases of abuse and violence at the hands of the police against the community.

CONCLUSION

It is time to acknowledge that there exists a community within us that conforms to a different sexual preference than heterosexuals, and that sexual preference is only one aspect of their existence. They are as human as any other heterosexual human being. Social engagement aimed at inclusion should be the focus. This should be normalised, and the idea of shame should be eradicated. There is no need to be offended by one’s choice of sexual partners; it is a personal preference. A clear statute can be extremely effective not only in bringing about a sense of uniformity in legal protection in relation to social, economic, and cultural rights, but it will surely provide an avenue to ensure justice. A legislative enactment will empower them to question instances of abuse, violence, and discrimination, and that will give them a voice, which is critical.

Homosexuality is inborn and immutable in nature. It is a normal part of sexuality. The disturbing factor prevailing in society is the discriminatory practises and acts of violence against homosexuals. It is the duty of the state to enact antidiscriminatory laws prohibiting discrimination on the grounds of sexual orientation and gender identity.

Besides legal reforms of domestic laws in India, education about LGBTQI rights and sexual orientation must be spread through awareness.

As far as homosexual marriages are concerned, the Supreme Court has already legalised consenting homosexual acts by adults. It has opened the door or paved the way for same-sex marriage. Sexual life is a part of marriage. Every person has the right to choose their own partner in life without any discrimination based on gender. Many countries have legalised same-sex marriage. As society changes, the law also needs to change. The law has to cope with society. In India, the law is silent on whether same-sex marriages are legal or illegal. It has not discriminated against same-sex marriages by imposing punishment under any statutory law. It is time that the government legalise same-sex marriages and enact laws governing their marriages, adoptions, inheritances, maintenance, etc.

ARTICLE BY : KALYAN SINGH

You can also check out these posts of ours 👇👇👇

Raksha Bandhan (Rakhi) Festival

Rinku Singh (cricketer)

Digital Inclusion Among Rural Minority Women

Dr Bhimrao Ambedkar

Sustainable Development Goals

PUBLIC EXPENDITURE IN UTTARAKHAND

RURAL DEVELOPMENT OF UTTARAKHAND

Education Reform

Neem Karoli Baba

Holi Festival