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LGBTQ+ MARRIAGE LAWS IN INDIA

ayush chandra
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This article has been written by K. APARA, a 4th- year law student from Symbiosis Law School, Hyderabad.

***This article has been selected for LegalOnus Law Journal.

ABSTRACT

Same Sex marriages in India have not been legalised to date, despite us living in the 21st century, our society still considers same sex marriages to be an abomination of humanity, or simply chooses to ignore them as irrelevant. Although same sex marriages have been proven multiple times to not cause any harm through cultural degeneration or through loss of legitimacy of traditional heterosexual marriages, the majority of the decision making people of our country fail to understand or empathise with homosexual people who do not fall into the predetermined categories of husband and wife. LGBTQ+ relationships, although having been decriminalised by the Supreme Court multiple times due to the nature of the criminalisation being unconstitutional, there has still not been any law or legislation that allows same sex marriages to be legalised. Furthermore, the 2023 case of Supriya Chakraborty & anr. v Union of India[1] the Supreme Court failed to accommodate the Right to marry of this community as a Fundamental Right and legalise same sex marriages. This restricts all homosexuals from enjoying their right to equality as without any law to ensure their legalisation, the society’s discrimination towards them will never subside and will further only encourage them to cause harm and violence in the name of “morality”.  The researcher in this paper has discussed various reasons why same sex marriages should be legalised by creating new legislations that provide right to marriage of this community or by amending the Special Marriages to include LGBTQ+ marriages, to establish LGBTQ+ culture as a distinct subculture with practices that encourage relationships between people of the same gender. This paper further discusses the role the Legislature can play in ensuring equality among the LGBTQ+ and other members of society. To support the research the researcher has also referred to the legitimate status and rights of LGBTQ+ in the various conventions and countries like USA, England, New Zealand, Canada, Australia, Netherlands legalising it.

Keywords: same sex marriage laws, LGBT community, discrimination, gay rights, marital relations, family law, equality, Supriya Chakraborty, Right to marry, homosexual relationships, India.

INTRODUCTION

Marriage is an institution where two individuals, usually a man and a woman, come together to be united as partners in a reciprocated intimate relationship. It is an institution that is recognised by the society and by law and which enables establishment of a family and continuation of the human race through procreation. Its objective is not limited to only procreation but also includes emotional and financial support, companionship, satisfaction and religious motive. A Revisionist perspective on marriage states that marriage is the union of two individuals irrespective of the sex, who promise to share the hardships and rewards of family life as well as to love and care for one another romantically.

LGBTQ+ members are those who are lesbians, bisexuals, gays, transgenders, queer and intersex, asexual and etc.  It includes those people who do not fit into the predetermined categories made by the society which only includes two genders , that is a man and a woman and where only a man can only feel romantic attraction towards another woman and vice versa. Lesbians includes those women who are only attracted to other women; gays includes men who are only attracted to other men; bisexuals includes those people who feel attraction to both men and woman. Transgenders are those people whose gender identity is not the same as the gender that they are born with. Intersex includes those people who do not feel like one particular gender but instead mentally feel like both.

Marriage that takes place between two people who are of the same gender biologically or of the same gender identity is called as same sex marriage. It involves a marriage by the people of the LGBTQ+ community. While there have been several same sex marriages that have taken place ceremoniously in India, such marriages are not legally recognised. These people have been shunned and persecuted by our society for the mere reason of being who they are and have till date been discriminated against and denied basic fundamental rights and protection. It is vital to understand that being queer is not a choice of the person rather something that they are born with and by punishing and persecuting them for something that causes no harm to anybody is unhumanitarian and leads to backwardness in our present society. Absence of any laws regarding protection and marriage of this community of people encourages the society to see them in a negative light.

This paper proves the necessity for legalisation of same sex marriage by analysing the previous landmark judgements relating to the LGBTQ+ community and especially highlighting on the recent Supriya Chakraborty & anr. v Union of India case and the manner in which it is against the Fundamental Rights of our Constitution such as the Right to equality under Article 14 and the major disadvantages that is faced by this community due to the lack of such rights. It is therefore the responsibility of the Legislature to ensure such rights for the purpose of equality. Moreover, the Indian culture has included the LGBTQ+ persons by mentions in our history and mythology including the Mahabharata.

Although the majority of marriage laws utilise terminology that is gender-neutral, marriage is a prevalent cultural bond that is exclusively known as being between male and female. While there have only recently been numerous cases of LGBTQ+ weddings being acceptable, our culture is gradually becoming more indulgent as seen in the Navtej Singh Johar v. Union of India[2] case, where consensual sexual conduct between adults irrespective of their sexual and gender identity was decriminalised. However, several countries have maintained their constitutional restrictions on homosexual marriages in spite of numerous protests from individuals and groups who argue that LGBTQ+ marriage must be permitted.

The countries which have legalised gay marriages are the USA, England, New Zealand, Canada, Australia, Netherlands and etc. The case of Obergefell v. Hodges[3] legalised gay marriages in United States of America in 2015, by declaring all the state level bans on same sex marriage as unconstitutional. LGBTQ+ partnerships are still not legally recognised in many countries, including India. As a result, many of the legal and financial privileges that come with the married status are not available to LGBTQ+ relationships. These include employment opportunities, the ability to file joint tax returns, health benefits, and rights resulting from a partner’s death, such as international inheritance, etc. This goes against their basic rights to liberty, equality, fraternity and justice.

LITERATURE REVIEW

Ruth Vanita, (2004). Ruth Vanita mentioned that LGBTQ+ people have existed for centuries and their presence in our mythology in the stories of Mahabharata, lord Kartikeya and lord Shiva as well by referring ancient kamasutra. Encarnación,

Encarnación, O.G. (2014). This article talks about the history of gay and LGBTQ+ rights and how far they have come over time. It highlights the fact that denying one their gay rights is equivalent to denying one their fundamental rights. It discusses the prevalence of queerness throughout history and the rejection that queer people had faced by the laws and the society. It also examines the mindsets of countries which have positive and negative opinions on LGBTQ+ rights. It talks about the advancements of law of different countries and the UDHR in the field of LGBTQ+rights.

Hall, S. (2010). This author through this article discusses the manner in which the LGBTQ+ community in the US fought for civil rights by utilising the country’s symbols and patriotism. This article examines the strategies and tactics that were employed to win favour and credibility in the general public and to ensure that the members of this community can be seen as equals. It talks about the struggle and protests of the LGBTQ+ community for basic human rights and acceptance.

Vance, Kim, (2018).  This article analyses how geopolitical factors, such as the influence of regional blocs and the influence of big governments, affect the UN’s attitude to LGBTQ+ rights. It talks about the influence of the developed countries on the other countries of the world including the UN when it comes to providing rights to citizens and the hurdles that these countries faced by doing so.

Marks, Suzanne M. (2006). This article addresses the difficulties in securing the rights of LGBTQ+ people around the world, such as societal and religious barriers, political opposition, and judicial restrictions. It examines difficulties that are particularly severe in nations with oppressive governments, where LGBTQ+ community people may experience violence and persecution because of their identity. It talks about the discrimination and deprivation of rights that are faced by the members of this community.

Diamond, L. M. (2014). This author Diamond, in this article discusses the psychological and social consequences of marriage equality, such as its favourable effects on mental health and wellbeing and its contributions to social justice and equal rights. This article also highlights the restrictions of the already available research on marriage equality and further provides suggestions for future research.

  1. Agarwal, (2023). This article talks about how LGBTQ+ marriage laws would contribute towards equality among the genders in India with respect to heterosexual couples as well as gay couples. It discusses the manner in which such laws would potentially affect the prevalent family laws in India and other related laws such as surrogacy, adoption, parenthood, assisted reproductive techniques. The author also analyses the positive effect of such laws in the other countries where they have been passed. He gives a legal analysis on the fundamental rights which these laws affect and potentially contribute towards its expansion, while simultaneously identifying the specific Indian family laws which it would alter.

Chamie, J., & Mirkin, B. (2011). The author in this article elucidates on the history of same sex marriages in different countries and mainly focuses on the effect of legalisation of same sex marriages in the U.S.A. It also analyses the statistics as well as other data of the number and rate of marriages between the various members of the LGBTQ+ community. The article also states the arguments that are for and against same sex marriages and homosexuality as well as investigates the controversy behind such couples.

Williams, R. (2011). This author discusses whether same sex marriages is an equality rights issue or not. He states the reasons why it is to be considered as a part of the right to equality while at the same time stating the arguments against it. The author mainly focuses on the arguments of McDonough which state that same sex marriages cannot be included in the right to equality. He analyses the term ‘collective right’ and whether the right to marry is a collective right or not, as then same sex marriages are an equality issue.

Sanders, S. (2012). This article talks about the need for constitutional provisions that ensure upholding of the same sex marriage laws in the U.S.A. to ensure that all the states follow the legalisation of same sex marriage. It addresses the potential conflicts that it would cause to same sex couples if they are not protected in the light of the previous cases from the U.S.A.

NeJaime, D. (2012). The author NeJaime states the discrimination that would be faced by same sex couples if harmful religious beliefs are enforced and the manner in which it would lead to inequality among the citizens. He mainly focuses on the catholic christian beliefs that stand against gay marriages and he emphasises that such beliefs cannot be upheld at the cost of equality in the country.

Eskridge, W. N. (1993). This article talks about the existence of same sex couples over the centuries and the society’s views towards them. It analyses the arguments of the society throughout history towards homosexuals while giving examples of such instances which lead to such arguments. It further states the need to study history along with law and states the cases that lead to legalisation of same sex marriage in many countries.

Kramer, L. (1997). In this article the author elucidates on how public policy exeption for gay marriages among the states in the U.S.A leads to discrimination. He further discusses the ununiform application of gay marriage laws among the different states due to such a public policy exception which leads to such discrimination. This article also analyses the need for uniformity of gay marriage laws among the states.

Chambers, D. L. (1996). The author writes from a time before legalisation of same sex marriages in the U.SA and he elucidates on the possible effects of legalisation of same sex marriages. He talks about the areas in law which would be affected by such legalisation and also the requirement for other protection legislations other than just marriage laws to ensure safety and antidiscrimination of the LBGTQ+ community.

Narrain, A. (2018). In this article the author elucidates on the various landmark cases relating to the rights of LGBTQ+ community in India. He talks about inconsistency among these cases and the discrimination that is still prevalent due to such inconsistency. The author states that the fluctuation of the criminalisation and decriminalisation of the LGBTQ+ community only leads to discrimination. He talks about the need for empathetic and protective legal measures for this community.

Misra, G. (2009). The author Misra, discusses the reform of Section 377 which decriminalised consensual sexual conduct among homosexuals. This article analyses the cases that lead to this and states the manner in which the reform of Section 377 was a step towards protection of the LGBTQ+ community and contributed towards equality among the citizens of our country.

Srivastava, S. S. (2014). Through this article the author explains the meaning of various terms in relation to the LGBT+ community. It also analyses the LGBTQ+ activism in India and the movements and cases that lead to the decriminalisation of same sex relationships. The author also criticises the heterosexual manner in which the laws are made against the LGBTQ+ community and the inequality that it leads to.

HYPOTHESIS

The problem that I have chosen to write this research paper on is the need for legalisation of LGBTQ+ marriages in India. The absence of marriage laws leads to deprivation of basic fundamental rights of the people of LGBTQ+ community. It makes it incapable for them to avail for themselves and their partners access to rights and privileges that heterosexual couples enjoy, such as a joint bank account, medical insurance, social security benefits, tax benefits, inheritance rights, and healthcare benefits. Other than just deprivation of legal rights it also  causes a number of adverse consequences like deprivation of social recognition and protection, which has led to alienation, discrimination, and persecution of queer people. Denying them these rights goes against the basic structure of the constitution that ensures that the citizens of India are not denied equality, liberty, fraternity and justice.

Lack of any marriage rights causes the LGBTQ+ community to be discriminated against by society and persecuted. It further increases prejudice against this community and encourages infliction of violence, abuse, harassment and humiliation towards queer people in the name of “ honour killings” and “conversion therapy”. This leads to a negative impact on the minds of queer people causing them several mental health issues such as anxiety, depression, stress, etc. Lack of legalisation of LGBTQ+ marriage leads to, lack of societal acceptance which in return leads to the social backwardness of our country.

 ANALYSIS

LGBTQ+ people have for centuries throughout history been ill-treated, persecuted and marginalised for not fitting into the predetermined categories of a heterosexual couple according to the society. The society perceives queer people as against religion and natural science when in truth queer people have been prevalent throughout our history and religion and even in the Mahabharata. Shikhandi, a character in Mahabharata, can according to the present times be considered as a transgender who was born as a female and later transitioned into a male person. Same-sex relationships had been prevalent since the ancient times as unions that embraced love, companionship, and caring for one another besides only physical intimacy. The lack of inclusivity of queer people is not in our religion but in the minds of our people who refuse to recognise and accept them. LGBTQ+ relationships cannot be seen as immoral and alien, when they have existed for centuries together and have further been proven to not cause any harm through cultural degeneration or through loss of legitimacy of traditional heterosexual marriages. Therefore denying them equal treatment as any other heterosexual couple is not onl y unnecessary but discriminatory and unconstitutional.   

Throughout the years there have been several cases fought for the basic rights of the LGBTQ+ community. Some of the major cases include the Naz Foundation v Government of NCT Delhi, 2009 [4] which decriminalised consensual sexual conduct between the queer people by holding Section 377 as unconstitutional. Later on in the Suresh Kumar Koushal vs Union of India case[5], queer relations were criminalised again, overruling the previous case. Fortunately, this judgement was overruled in 2014 by National Legal Services Authority vs the Union of India or NALSA judgement[6], which recognised trangender people as a third gender and further stated that they have the right to express themselves freely in the manner that they dress, speak, mannerisms and behaviour as it is granted by Article 19 of the Constitution of India . The Supreme Court further held that they shall not be discriminated against on the basis of their sexual orientation and gender identity as is bestowed by Article 14 which grants the Right to Equality to all persons. The term “all persons” extends beyond men and women to include transgender people. The esteemed court interpreted Article 21 to include the Right of the transgender people to live with dignity and to not be disrespected on the grounds of them being transgender. This judgement was reinforced by  Navtej Singh Johar v Union of India[7], which officially decriminalised consensual sexual conduct between the queer people and struck it down on the basis of it being against the Constitution of India. It acknowledged that every person, regardless of his or her gender or sexuality, has the Right to dignity and to live an independent life that is private, free of state intrusion. The case of  Arun Kumar v Inspector General of Registration[8], Right to marriage of the transgender people had been petitioned and the Supreme Court had held that a trangender woman can be a bride and their marriage would be valid.

Despite the several landmark cases which uphold the rights of the LGBTQ+ community, majority of the judgements are with respect to transgender people only and fail to recognise the other members of the LGBTQ+ community such as the gays, lesbians, bisexual, asexuals,etc. While it is understood that the struggle of the transgenders is more evident and visible, the rest of the queer people are often ignored due to their discretionality in their appearance and lack of the ability of the society to identify them.

The Trangender Persons (Protection of Rights) Act, 2019[9] protects the rights of transgender people to not be discriminated against by others and also has provisions that ensure their welfare such as healthcare services. Certain states in India have also provided horizontal reservations for transgender people with respect to employment in government services. While there are laws for the transgender, there are none for the gays, lesbians or any of the other categories of people in the LGBTQ+ community. Therefore there is a desperate need for the Legislature to make strong laws that protect this community and making marriage laws would be expedient in protecting their identity and sexuality while simultaneously bestowing several other rights that they are deprived of such as the inability to adopt as a couple, succession, inheritance from their partner, and etc.

They have forever been seen as outcasts and will continue to be seen that way unless the legislation creates laws that recognizes and legalises them. Mere decriminalisation of LGBTQ+ people is not sufficient for our society as it does not resolutely discourage the society from humiliating and discriminating against them. Without proper laws discrimination against them cannot be easily challenged in the Courts and moreover, laws are required not only to enable them to gain social security and acceptance but also to ensure that LGBTQ+ people are not denied any fundamental rights and so that they acquire equality, liberty, fraternity and justice which the Indian Constitution promises to all its citizens. Lack of these laws makes it incapable for them to avail for themselves and their partners access to rights and privileges that heterosexual couples enjoy, such as medical insurance, social security benefits, tax benefits, inheritance rights, and healthcare benefits.

This issue had been raised in the case of Supriya Chakraborty & anr. v Union of India[10], where the petitioner had voiced the need for such laws and the manner in which LGBTQ+ people are deprived of their Fundamental Rights under Article 14,15,19, 21 and 25 of the Indian Constitution. By not legalising same sex marriages queer people are discriminated against by being deprived of rights that are otherwise available to heterosexual people, this against their Right To Equality that is provided under Article 14[11]. This includes rights such as the visitation privileges in jail, right to be consulted by the medical professionals as immediate family incase of medical emergencies of the spouse, rights over the body of the spouse who passed away, succession rights, inheritance, maintenance, inability to adopt a child as a couple or avail surrogacy, inability to obtain medical coverage that is available to the married partners of government employees and etc. Furthermore the petitioner stated that Right to Life under Article 21[12] can be interpreted to include Right to marriage of same sex couples and, that Right to freedom of speech and expression under Article 19[13], includes the Right to express their sexual orientation and gender identity through marriage.

The petitioner had stated that the inability of LGBTQ+ couples to procreate cannot be a reason for not legalising same sex marriages as the law cannot make the ability to procreate as the bar for a marriage to be legal as many heterosexual couples marry for the reason of love and stability and may or not involve procreation as one of their reasons. Moreover this being the bar would also then restrict heterosexual men and women above the active reproductive age from getting married. Same sex marriage laws will also curb the discrimination and mistreatment that is faced by LGBTQ+ community from the society as without sufficient laws their rights cannot be protected and enforced properly and it would lead to continuous violation of Article 15[14] which prevents discrimination in public spaces.

Despite the several prevalent needs for same sex marriages, the Supreme Court had not legalised the same in this case for the reasons that the Right to marriage is not a fundamental right and cannot be interpreted to be included in it. It held that recognition of same sex marriages can be done only by the Legislature and not the Judiciary and that the court cannot overstep into the  powers of the Legislature to legalise same sex marriages. The rights and benefits that are available to the heterosexual couples legally can only be bestowed upon the queer couples through an act by the Legislature and that the court cannot interpret the Special Marriage Act 1954, to include same sex marriages as it would be in violation of the separation of powers and would fall outside the purview of the Judiciary.

While the Supreme Court in this case reiterated the rights of the LBGTQ+ people to cohabit together and engage in physical intimacy, there was no legalisation of same sex marriages nor was there any recommendation made to the Legislature to make such laws. It is therefore stated that it is entirely the power of the Legislature to do so. Despite the requirement for such laws and the roar of the public for such rights that was instigated by the Supriya Chakraborty case[15], the Legislature opposed legalisation of same sex marriages on the ground that it would lead to “breakdown of our culture and societal values”. This statement by the politicians not only appears to be morally wrong prima facie, but also been proven in the arguments and the judgement of this case that LBGTQ+ people have existed for centuries together in our culture through mythology and history. Furthermore, if very legislation is made on the basis that it should not be against our culture and norms of the society, then the welfare of the people as a whole would not be safeguarded and major laws such as those which abolish sati, triple talaq, dowry system, child marriage and allow widow remarriage would never have been passed as these unethical actions were considered as a part of societal norms by the people at a certain point of time before they had been passed. The laws for LBGTQ+ marriages can be made in a manner that they do not breakdown the prevalent marriage laws in India but this can be achieved only through a strong political will which is currently lacking in the State.

Mere passing of a judgement that states that they should not be discriminated against and that they can cohabit as couples is not sufficient and it is only through proper laws by the Legislature that ensure protection of queer people and bestow marital rights, that can influence the society and enable enforcement of such rights. Furthermore the constant fluctuations between criminalisation and decriminalisation among the previous landmark judgements indicate a need for actual legislations that protect this community. Not legalising LBGTQ+ marriages not only leads to social backwardness of our country but also induces violence, prejudice and lack of equality among the citizens of India. It encourages ill-treatment and humiliation of homosexuals and causes various inhuman actions such as ‘honour killings’, conversion therapy,  discrimination by refusing to provide them medical treatment or housing. The lack of societal acceptance and humiliation leads to a detrimental effect on queer people’s mental state, resulting in a variety of mental health problems such as anxiety, depression, tension, etc.

It is therefore necessary in order to develop our country’s progress socially and legally to pass laws that legalise gay marriages. Several countries such as the USA, England, New Zealand, Canada, France have already legalised same sex marriages. The case of Obergefell v. Hodges[16] legalised gay marriages in United States of America in 2015, by declaring all the state level bans on same sex marriage as unconstitutional. Like all the other social institutions, marriage is also subject to change over time, and this institution of marriage is no exception, therefore it is time that we catch up to the notions of the 21st century and move forward by legalising same sex marriages. Not making such laws only results in the backwardness in thought of our country and ignorance of those sections of the society that require such laws to live freely without being discriminated against.

CONCLUSION

 The final conclusion that I have reached after researching all the arguments in favour of and against same-sex marriage is that homosexuality is not wrong, it is simply a means of pursuing love, physical satisfaction or happiness. It is therefore unfair and unjust to deny a queer couple the right to a civil ceremony that grants them the same rights and security as heterosexual couples. There is no reason why allowing gay couples to express their love and commitment through marriage should undermine the values of marriage of our country. It is possible for same sex marriage laws to be made in a manner that does not affect or disrupt the existing laws of marriage in India, therefore in order to ensure equality to every aspect of our society including the LGBTQ+ persons and enforcement of the basic fundamental rights of our Constitution, same sex marriages should be legalised.

Unfortunately, homosexuals are often stigmatised as abnormal, despite the fact that homosexuality has been a part of Indian culture for centuries. It is time for us to adopt a more comprehensive and nuanced approach to the issue of homosexual marriages. While it remains to be seen how effective such an approach would be in practice, there is a growing sense that our current approach of denying homosexual couples the right to marry does not serve the best interests of society as a whole. In order to advance human rights, we must legalise same-sex marriages.

      REFERENCES

[1] Supriya Chakraborty & anr. v Union of India (2023) INSC 920

[2] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

[3] Obergefell v. Hodges, 135 S.Ct. 2534 (2015)

[4] Naz Foundation v. State (NCT of Delhi), (2009) SCC OnLine Del 1762

[5] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1

[6] National Legal Services Authority v. Union of India, (2014) 5 SCC 438

[7] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

[8] Arun Kumar v Inspector General of Registration, AIR 2019 MADRAS 265

[9] The Trangender Persons (Protection of Rights) Act, 2019.

[10] supra

[11] INDIA CONST. art. 14

[12] INDIA CONST. art. 21

[13] INDIA CONST. art. 19

[14] INDIA CONST. art. 15

[15] supra

[16] Obergefell v. Hodges, 135 S.Ct. 2534 (2015)


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