• LAWGIC STRATUM

The Fading Colours of LGBTQ – Legality of Same-Sex Marriages

Author: Sarada Rasagnya



Introduction:


While the homosexuals were about to land on a bed of roses there comes a layer of thorns opposing their union. The Honourable Supreme Court in the Navtej Singh Johar[1] case decriminalized sec 377 of the Indian Penal Code, 1960 making homosexuality legal. In the erst-while three petitions have been filed before the courts asking for legislation for and recognition of same-sex marriages.


The first petition was filed by Dr. Kavita Arora[2], a psychiatrist, and Ankita Khanna, a therapist, requested enforcement of the fundamental right to choose a partner when their application for solemnization of marriage under the Special Marriage Act was rejected by a Marriage Officer in Delhi on the ground that they are a homosexual couple.


Parag Vijay Mehta, an Overseas Citizen of India, and Vaibhav Jain[3], an Indian citizen, have filed the second petition,they got married in 2017 at Washington DC and the Consulate General of India at New York rejected their application for registration of marriage under the Foreign Marriage Act.


Abhijit Iyer Mitra[4] a defence analyst and three others have filed a PIL, which is the third petition before the hon'ble court they pleaded for recognition of same-sex marriages under the Hindu Marriage Act.


Contentions of the Centre and Delhi HC:


The Delhi High Court recently said that the court by decriminalizing homosexuality under sec 377 of IPC has only recognized a particular behaviourof humans and did not intend to question human conduct.


Regarding the plea for legislation for homosexual marriages, the government said that the court can only analyse existing rights in this concern, it cannot create a new right, and to override the legislative intent in limiting the legal recognition of marriage to heterosexual couples is not permissible to the court. Same-sex marriage is neither recognized nor accepted in any personal law or any statutory law, the centre has strongly affirmed this making it crystal clear that same-sex marriages in this country are not allowed yet.


The major statement of the Delhi HC was that living together as partners or in a relationship with a same-sex individual is not comparablewith the traditional concept of the Indian family, and the centre said that the institution of marriage has its sanctity.


The centre also contended strongly that despite statutory recognition of the relationship of marriage between a biological man and a biological woman, in our country marriage necessarily depends uponthe ancient and venerable customs, sacraments, traditions, cultural philosophy,and community values.


Analysis:


The dilemma that arises here is that if there is no scope for the marriage of homosexuals what was the aim behind decriminalizing sec 377, was the recognition of human behaviour the only motto. If homosexual marriages cannot be protected under the Hindu Marriage Act and Special Marriage Act then there is a clear violation of rights and discrimination towards homosexuals. The state is responsible for the protection of its citizens, this is the fundamental duty of the state and not protecting homosexuals just because it is against the cultural idea of marriage and the marriage is not between a biological man and biological woman[5] makes us question the aim behind decriminalization of homosexuality.


It has also been opined that homosexual marriage is against societal morality and many personal laws, then are adulterynot against societal morality?? [6]


Is entering into anextramarital affair with other women or other men out of wedlock more moral than marrying a person of the same sex. Oh, maybe adultery can be compromised but not same-sex marriage, cheating on the legitimate partner when they both are “legally” married with all the customs and cultures is probably moral than the union of two people with no intent to cause harm to the society and the cultural idea of marriage. Isn’t the idea of marriage being together or is it being together with the other gender?? When adultery can be moral why not same-sex marriages. And also, the government said any interference with the existing marriage lawswould cause complete havoc with the delicate balance of personal laws in the country it may lead to further abnormalities with laws governing marriages of persons belonging to the Christian or Muslim faith. Another question here is whether adultery is permissible under all other personal laws and did it not create any issues in the other marriage laws.


Conclusion:


Isn’t it discriminatory for homosexuals, that being homosexual is not a crime but still they don’t get rights for being homosexual?Though this is not the final decision but the contentions in the centre’s affidavit have made our minds think about the legislative intent behind decriminalizing homosexuality. Now neither homosexuality is a crime nor it is legal for homosexuals to get married, so in some way or other isn’t it promoting live-in relationships. Aren’t live-in relationships against the Indian culture or is it just that live-in relationships of homosexuals are against the culture. Heterosexual live-ins are recognized and they have rights and liabilities now, the judiciary and the government are being discriminatory towards the LGBTQ community. The entire point of decriminalizing homosexuality is now null and we can say it did not make any difference for the LGBTQ community.


Speaking about Indian culture,ethos,Sanathana Dharma and other things even Women entering the Sabarimala temple[7] were against the culture and practice that has been existing for ages now, we wouldn’t say adultery[8] is Indian culture, when these have been made legal why not same-sex marriages. Indeed, marriage is a pure union of two people and has its sanctity and yes same-sex marriage cannot be compared to the Indian Family concept but then what is the need to compare. Marriage is not necessarily for children some people don’t have children, the very definition of marriage is a union of two people where they establish rights and obligations for them.


It is not a comparison between the legalization of adultery, allowing women into the Sabarimala temple, and same-sex marriages, the whole point is when cultures and traditions have been broken then why not now when the judiciary has already made homosexual behaviour legal why, not their marriage?


Though the judgment is still awaited, these contentions have made a great impact.


References:

[1]Navtej Singh JoharVs Union of India, (2018) 10 SCC 1. Or Writ Petition (Criminal) No. 76/2016. [2]Kavitha Arora and Other Vs. Union of India, Delhi HC, Writ Petition (c) No. 7692/2020. [3]Parag Vijay Mehta and Vaibhav Jain Vs. Union of India, Delhi HC, Writ Petition(c) No. 7657/2020. [4]Abhijit Iyer Mitra and Ors Vs. Union of India, Delhi H, Writ Petition (c) No. 6371/2020. [5]Opposing same-sex marriage in court Government cites ‘Indian Ethos’, NDTV (Feb 26, 2021) https://www.ndtv.com/india-news/same-sex-marriage-not-a-fundamental-right-centre-tells-delhi-high-court-2378730 [6] Sofi Ahsan, Centre Opposes same-sex marriage in Delhi HC, says not comparable with ‘Indian family unit concept’, Indian Express (Feb 26, 2021). https://indianexpress.com/article/india/same-sex-marriages-legal-recognition-centre-7204303/ [7]Indian Young Lawyers Association and Ors Vs. State of Kerala and Ors, 2018 SCC Online SC 1690. [8]Joseph Shine Vs. Union of India, 2018 SCC Online SC 1676.

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