Submitted By- Sakshi Nathani
College- Alliance University, Bangalore
The present article gives insight on the Marriage rights associated to LGBTQ community. The article discusses the reason for non-acceptance of same sex marriage in India, the decriminalization of section 377 of IPC and the intention of judiciary to guarantee equal rights except for the right to marry. Further, the article focuses on the recent petition filed before the Delhi High Court, how the court attributed to the same and the SC order to give wider. The article discusses the countries where same sex marriage have legal recognition, the reason behind it and other concerned factors. The societal morality and public acceptance are two major reason for not considering same sec marriage as valid institution in the Indian Family unit.
Keywords- Same sex marriage, LGBTQ community, societal morality, public policy, Right to marry
Same-sex marriage, is a marriage entered into by people of the same sex, either as a secular civil ceremony or in a religious setting. The requirement for a valid marriage depend on country’s personal law or statutory law. In India, it is imperious that a marriage only takes place between a man and a women who are bond together to form a family based on both religious and national laws. Although, marriage in India is regulated by various statutory enactments, its recognition as a fundamental right has only developed through judicial decisions of SC, and such declaration of law is binding on al court throughout India under Article 141 of the Constitution.
Article 21 of the Indicia Constitution states that no person should be deprived of his life or personal liberty except according to procedure established by law, in the definition the term ‘life’ includes all those aspects of life which go to make a man life meaningful, complete and worth living. Right to live with dignity defined under Article 21[i] forms a basic part of our constitutional culture. Dignity of a person is the intimate sense of himself and his being; entering into most private sphere by penalizing that act, pierce through the founding norms of civilized society. ‘That all individual have full protection in person is an old principle of common law and now the right to life has come to mean right to enjoy life including right to be let alone’[ii]. Homosexuality is an orientation and treating it like ghastly act diminishes dignity of an individual who happens to find expression in that orientation.[iii] Invasion of privacy by appropriation, false light, disclosure of privacy facts and intrusion are valid grounds for tort claim. No one shall be subjected to arbitrary interference with his privacy, or to attacks upon his honour and reputation.
Although, decimalization of Section 377 of Indian Penal Code has given wider recognition to LGBTQ, but it does not distinguishes right to marry as a fundamental right. The Supreme Court in the landmark case of Navtej Singh[iv] ruled that same sex couples enjoys the liberty to lead a dignified private life, but allows them only ‘basic right to companionship so long as such companionship is consensual, free from the vice of deceit, force, coercion, and does not result in violation of fundamental rights of others.’ The ruling further states applies to ‘personal private domain of individuals akin to right to privacy and cannot include a public right in the nature of recognition of same sex marriage and thereby legitimating a particular human conduct’
Court with wider interpretation of all codified and uncodified personal laws confirms that, Indian society recognizes a marriage as a union of two individuals which is either governed by statutory law or personal laws. There exist no acceptance of the institution of marriage between two individuals of the same gender either in the personal laws or codified statutory laws. The belief carried out by the society on same sex marriage issue involves various social and stereotypes stigma, questioning the ethnicity and morality standard issued by forefathers in order to headway the culture.[v]
Granting the legal sanctions to the same sex marriage is under the arrows of Legislation and cannot be adjudicated by court of law. It is said that, the jurisprudence of any nation, be it any way codified law or otherwise, evolves, based on societal values, beliefs, cultural history and other norms. The enactment of any law is majorly based on two principles i.e. ‘societal values’ and ‘national acceptability.’
Although, the Apex Court decision on decriminalization of Section 377 has given a valid and lawful recognition to LGBTQ, but non-acceptance of same sex marriage status may deliberately cover many difficulties like the issue of transfer of property rights, medical decisions, banking issuance of joint account, and other major rights.
Under the International Regime
According to Article 16 of Universal Declaration of Human Rights and the Puttuswamy case, the SC declared that right to marry a person of one’s choice is integral to Article 21 of the Constitution. The right to marry is intrinsic right given to all individual to form and take decisions as matter of well being
The United States of America, through its SC ruling of June 26, 2015, has become the 21st state to legalize homosexuality and same sex marriage. Besides US, the following countries have also legalized same sex marriage: Ireland, Germany, Iceland, Malta, Mexico, Argentina, Belgium, Brazil, Canada, Colombia, Denmark, Finland, France, England, Luxemburg, Netherlands, New Zealand, Norway, Portugal, Spain, South Africa, Sweden, the UK, Uruguay, Australia, Austria, Taiwan and Costa Rica[vi]. The Indian Marriage law not recognizes same sex marriage and therefore, it does not provide any legal protection to same sex couples. The reason includes strong societal disapproval.
The Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity (Yogyakarta Principles) were adopted in 2007 as a coherent and comprehensive identification of the obligation of States to respect, protect and fulfill the human rights of all persons regardless of their sexual orientation or gender identity.[vii] The English Law has been reformed in Britain by the Sexual Offence Act, 1967 which decriminalized homosexuality and acts of sodomy between consenting adult [above age of 21] pursuant to the Report of Wolfenden Committee.
Ongoing fight against legalization of Same Sex Marriage
Recently, the Central Government opposed same sex marriage petition filed in Delhi High Court stating that marriage in India can be recognized only if it is between ‘biological man’ and ‘biological women’ capable of producing children.
The petition was filed in 2020, seeking recognition of same sex marriage under the Hindu Marriage Act (HMA) 1955 and the Special Marriage Act 1954 as legally valid. However, the SC ordered that Section 377 IPC only decriminalizes particular human behavior but neither intended to, nor did in fact, to legitimate the human conduct in question. The court intensively discussed the principle of Societal Morality which is relevant in considering the validity of law. Further, the fundamental right under Article 21 is subject to procedure established law and it cannot be expanded to include the fundamental rights for same sex marriage to be recognized under the law which is contrary to constitutional morality and public policy[viii].
The non-acceptance of same sex marriage is widely depend on mindset and analogy of individual who connotes a dedicated believe towards firmed religious laws and morality. Living together as a partners or in a relationship with a same sex individual is ‘not comparable’ with the ‘Indian Family unit concept’ of a husband, wife and children, considering it as a sanctity.
Lastly, In India right to marry is not expressly recognized as a fundamental right or constitution right resulting in extensive distress to the LCBTQ community. There is need for an anti-discrimination law that empowers the community to build productive and relationships irrespective of gender identity or sexual orientation and place the concern over the society and state to bring the change. Marriage rights does carry a person’s identity as whole to the society. Thus, its recognition is indeed important for LGBTQ community also, for their future upcoming challenges and livelihood. Legalization of Same sex marriage in India is nevertheless challenging and carries huge impact on jurisprudential approach of all personal laws, the process will bring a tremendous change in due diligence. However, change is part of every system and respecting it can positively form harmony and eternity.
[i] Francis Coralie Mullin v. The Administrator, Union Territory of Delhi &Ors,  AIR SC 746; Olga Tellis v. Bombay Municipal Corporation, AIR 1986 180; Education and Research Centre v. Union of India, (1995) 3 SCC 42;BandhuMuktiMorcha v. Union of India, (1984) 3 SCC 161; Griswold v. Connecticut, 381 US 479 (1965).
[ii] Samuel D. Warren and Louis D. Brandeis (Harv.L.Rev. 193), 1890.
[iii] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 11.
[iv] ‘Navtej Singh Johar V. Union Of India – Global Freedom Of Expression’ (Global Freedom of Expression, 2021) <https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india/> accessed 7 June 2021.
[v] Samanwaya Rautray, ‘Same Sex Marriages Cannot Be Given Legal Sanction: Government’ (The Economic Times, 2021) <https://economictimes.indiatimes.com/news/politics-and-nation/same-sex-partners-not-comparable-with-indian-concept-government/articleshow/81209328.cms> accessed 7 June 2021.
[vii] International Commission of Jurists (ICJ), Yogyakarta Principles – Principles on the application of International Human Rights law in relations to sexual orientation and gender identity, march 2007.
[viii] ‘Same Sex Marriage’ (Drishti IAS, 2021) <https://www.drishtiias.com/daily-updates/daily-news-analysis/same-sex-marriage> accessed 7 June 2021.