“Why is that, as a culture, we are more comfortable seeing two men holding guns against each

other than holding hands?” -Ernest J. Gaines

1. INTRODUCTION

Same Sex Marriage also known as Homosexual Marriage is essentially a union of two
individuals of the same sex in a marital relationship, with the full legal rights and responsibilities
allotted to this contract in a given jurisdiction. The traditional legal architecture of marriage was
built on the assumption of a different-sex couple at its heart, with the role of each partner heavily
shaped by conventional gender norms and the expectation of procreation. However, what once
were the social realities and legal rules of marriage have now been revolutionized by the
emergence of same sex couples and it compels us to revisit these assumptions once again. The
late twentieth century witnessed heated debates and arguments on this very controversial subject
of legalization of the Same Sex Marriage in many countries across the globe. It is a matter
requiring choices to be made between conflicting principles such as Right to Liberty, Privacy &
Equality and safeguarding our country’s cultures, norms, traditions and values, to name a few.

This Research Project aims to construct an analysis pertaining to the importance of the
Legalization of Same Sex Marriage in the contemporary society by virtue of firstly
understanding the meaning of marriage followed by arguments substantiating how same sex
marriages fall under the ambit of this institution of marriage supported by real life cases of same
sex marriages both in India and Outside India and with reference to its constitutional validity
across many countries. It is an attempt to instill a perspective which promotes the principle of
Humanity i.e. treating all humankind humanely and equally in all circumstances.

2. ANALYSIS

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2.1 MEANING OF MARRIAGE

Historically, the social and legal institution known as marriage served several purposes. One
purpose was to make a woman the property of a man, giving him control over her, and giving
him sole sexual rights. Another purpose was to make a man the protector of his woman or
women; it was believed they needed protection from other men. For some, marriage changed the
sin of sex into the blessed obligation to produce children beneath the gaze of a judgemental and
vengeful god. We now see most of these purposes of marriage as primitive or barbaric, and we
have progressed from them.

In this twenty first century, with the change in the social status of women in the society and
therefore the subsequent change in the mindset of the people, the essence of marriage can be
construed as typically consisting of the following 4 elements:

(1) Domestic and economic cooperation

(2) Voluntary Mutual Commitment to sustain the relationship

(3) Sexual Intimacy

(4) To cater to one’s Emotional wants and avoiding isolation in the older age

2.2 ARGUMENTS FOR SAME SEX MARRIAGE

The sexual attraction or the romantic behaviour among people belonging to same sex group leads
to homosexuality. It could be either situational or enduring disposition. Following are some
arguments proposed for the notion of legalizing Same Sex Marriage in India:

Firstly, Research and studies suggest that between two and twenty per cent of the population in
India exhibits some degree of homosexual tendency, though in many earlier cultures homosexual
relations were highly prevalent.1 Such homosexual relations are now a reality which needs to be
legally accepted and be given equal status in India. As of May 5, 2017, 21 out of 194 countries
allow same-sex couples to marry in their respective countries .2 For instance, in New York there

1
Anil Trehan, Legal Recognition of Same Sex Marriages in India, (2011) PL
2
ProCon, Should Gay Marriage be Legal?, (2017)

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are hundreds of same sex couples that are married and are in a legitimate relationship therefore
signifying how extensively has their Constitution accepted this reality and given it an equal
status in their respective country.

As history has repeatedly proven, institutions that fail to take account of the changing needs of
the population are those that grow weak; those that recognize and accommodate changing needs
grow strong. Therefore, granting same-sex couples the right to marry would strengthen the
institution of marriage by allowing it to better meet the needs of the true diversity of family
structures in India today.

Secondly, the prospect of a significant change in laws and customs have often caused people to
worry more about dire consequences that could result than about the potential positive outcomes.
In fact, precisely the same anxiety arose when some people fought to overturn the laws
prohibiting marriage between people of different races in America in 1950s and 1960s. However,
anxieties don’t stop revolutions to take place specially when the practices are unfair and
obsolete. Even in the history of India, there were many practices that were highly unreasonable
and cruel in nature such as sati practices, dowry, untouchability etc. which now have been
completely abolished by the constitution as they do not complement the existing social norms
and traditions of the society.

It is thus an alarming indication that with changing dynamics of the social relationships
prevailing in the society, obsolete laws should be struck down particularly Article 377 of the
Indian Constitution stating Unnatural Offences as it doesn’t acknowledge what now as
mentioned in the previous point, is a reality. On the other hand, opening marriage to couples who
are so willing to fight for it could only strengthen the institution for all. It would open the doors
to more supporters, not opponents. And it would help keep the age-old institution alive.

Thirdly, Section 377 violates right to liberty guaranteed under Article 21 of the Indian
Constitution which covers private consensual sexual relations. The fundamental right to liberty
(under Article-21) prohibits the state from interfering with the private personal activities of the
individual. The concept of privacy is so broad that no comprehensive and all encompassing
definition of the term can be given. In the case National Coalition for Gay and Lesbian

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Equality V. Ministry of Justice 3, the South African court held that, Privacy recognizes that we
all have a right to a sphere of private intimacy and autonomy which allows us to establish and
nurture human relationships without interference from the outside community. Even at the
international level, the right to privacy has been recognized in the favour of lesbians and gay
man.

Fourthly, Section 377 discriminates on the basis of sexual orientation forbidden under Article
15 of the Constitution. Article 15 prohibits discrimination on several grounds, which includes
Sex. By prohibiting discrimination on the basis of sex, article 15 establishes that there is no
standard behavioral pattern attached to the gender. The prohibition on non-procreative sexual
acts imposed by Section 377 prescribes traditional sexual relations upon men and women. In so
doing the provision discriminates against the homosexuals on the basis of their sexuality and
therefore constitutes discrimination on the basis of sexual orientation.

Fifthly, it is a violation of Article 14 that guarantees equality and criminalization of

homosexual conduct is unreasonable and arbitrary. Infringement of the right to equal
protection before law requires the determination of whether there is a rational and objective basis
to the classification introduced. There should be a just and reasonable nexus between the
classification and the object sought to be achieved by the legislation. Section 377 of IPC, its
legislative objective is to criminalize all the sexual activities which are against the order of
nature, thus punishing the unnatural sex. Section 377 assumes that natural sexual act is that
which is performed for procreation.

Hence, it thereby labels all forms of non-procreative sexual act as unnatural. This gives a very
narrow view to the distinction between the procreative and non-procreative sexual act. Hence,
the legislative intent of creating a public code of sexual morality has no rational nexus with the
classification created. Further the very object of the section is vague, unreasonable, arbitrary and
based up on the stereotyped notion that sex is only for procreation. Now if this presumption is
accepted is correct then, what justifies the policies of family planning and the use of the
contraceptive devices.

3
[1998] ZACC 15

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Sixthly, legalizing same sex marriage is good for adoption purposes. Since Same Sex couples
cannot have children of their of own thus legalizing their marriage would enable them to resort to
the means of adoption if they wish to have children. This will hence increase adoption rates and
enable more and more children to have the privilege to get parental guidance, love and family
environment.

Seventhly, the quality of parenting by homosexual couples is fair and not inferior to the one
by heterosexual couples. Most research studies show that children with two moms or two dads
are raised just as well as children with heterosexual parents. In fact, one comprehensive study of
children raised by lesbian mothers or gay fathers concluded that children raised by same-sex
parents did not differ from other children in terms of emotional functioning, sexual orientation,
stigmatization, gender role behavior, behavioral adjustment, gender identity, learning and grade
point averages. Where research differences have been found, they have sometimes favored same-
sex parents. 4

Eighthly, it is important to legalize same sex marriage to reduce the constant pressure among
LGBT youth to keep their relationship under wrap because eventually on their failing to do so,
when certain sections of the society don’t accept such relationships they tend to commit suicide
or get into clinical depression. So, legalization of same sex marriage reduces the number of
suicides as well mental trauma of the LGBT.

Ninthly, many homosexuals in India are forced by their family members to marry the person of
the opposite sex against his/her wishes and continue the lineage. Subsequently, such
relationships tend not to work out and end up in Divorce. Thus, legalizing same sex marriage
also reduces the divorce rates considerably and is a way to encourage such people to come out
of their closet and protect their future from such social stigmas through the powers conferred
in the constitution.

Lastly, Choice of a marital partner is an important personal decision, over which others,
particularly the state, should have no control. Thus, the straightforward argument in favor of
same-sex marriage is that if two people want to make a commitment of marriage, they should be

4
American Association for Marriage and Family Therapy, Same Sex Parents and their Children, (2015)

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permitted to do so, and excluding one class of citizens from the benefits and dignity of that
commitment demeans them and insults their dignity.

Following are some historical traces of Homosexuality in India which substantiates the
arguments against the notion which states that Homosexuality is not a part of India’s culture:

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2.3 HISTORICAL BACKGROUND IN INDIA

2.3.1 HOMOSEXUALITY IN THE VEDAS

The Vedas are the source Scriptures of Hinduism and are considered to be timeless and not
composed by any author (not even by God Himself). Homosexuality is not mentioned per se in
the Vedas but there are some interesting references to homo-eroticism. One is from the
Kaushitaki Brahmana Upanishad 2:4 of the Rig Veda: —

“Now then the intense longing of love stimulated by the gods. When one (m) desires to be loved
(priya) by a man or a woman or by men and women, he shall offer to the above mentioned gods
oblations in the sacred fire”.

2.3.2 HOMO-EROTICISM IN SACRED LITERATURE

The Sacred literature is replete with references to love and “erotic” sentiments between members
of the same gender, and between the predominantly male poets and God. God is declared to be
the only real “male” and all others take on the form of “females”. In the 17th century the
Vaishnava sahajiya sect interpreted kama or desire as male and prema or selfless love as female,
all the male devotees therefore identified themselves with Radha the consort of Krishna. They
dressed and lived as women in order to perfect their love for Krishna.

2.3.3 HOMOSEXUALITY IN KAMASUTRA

5
Sandeep Ranjan, Homosexuality and Hinduism, (2015)

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The famous Kama Sutra was a text considered as supplementary to the sacred law which deals in
great detail with eroticism, sex and its various manifestations. It was written around the 4th
century AD and describes customs and social conditions prevalent from about the 4th century
BCE. It inspired many of the erotic sculptures found on temple facades. In this text lesbianism is
described in detail, as well as the swapping of male female roles with the female being the
dominant one and using accessories to penetrate the male. From the text, we discover that male
homosexuality formed an integral part of Indian sexual life and various homosexual practices are
described in detail.

2.3.4 THE TANTRIC TRADITION

The Tantra posits the idea that God is androgynous and that one who is in touch with both the
male and female sides of their being are closer to the divine than others who are polarized in
their sexual orientation. Although Tantra is overwhelmingly heterosexual in its methodology; the
homosexual is by no means excluded, condemned or marginalized.

3. LEGAL VALIDITY IN INDIA

It is unarguable that the initial focus has to be on de-criminalizing consensual sexual acts.
(Section 377 of the Indian Penal Code criminalizes "carnal intercourse against the order of
nature". This phrase was interpreted to mean all forms of sexual activity other than
heterosexual penile-vaginal intercourse)6 But this in itself will not end the discrimination faced
by persons who are engaged in long-term committed relationships with others of their own sex. It
would require legal recognition of long-term same-sex unions, on par with heterosexual
marriages.

It is pertinent to observe that same-sex marriages are not illegal in India. While Section 377 of
the Indian Penal Code criminalizes sexual acts between persons of the same sex, it is possible to
argue that same-sex marriages are not equal to the performance of such acts. Nonetheless the
6
Nayantara Ravichandran, Legal Recognition of Same sex Relationships in India (2016)

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marriage laws in India do not explicitly permit same-sex marriages, and, in fact, reflect a strong
heterosexual bias and use terms suggesting only a heterosexual partnership. Moreover, on a
realistic note, so long as a provision in a criminal statute such as Section 377 is considered non-
discriminatory it would be illogical to seek legal recognition under civil marriage laws.

3.1 INDIAN CASE LAWS

1. NAZ FOUNDATION V. GOVERNMENT OF NCT OF DELHI 20097

This case concerned a writ petition brought by an Indian NGO working called ‘Naz Foundation’
which argued that Section 377 of the Indian Penal Code was unconstitutional. The Naz
Foundation submitted that this interpretation of Section 377 violated the fundamental rights
guaranteed under Articles 14, 15 and 21 of the Constitution of India.

The case came up for hearing before a bench comprising Chief Justice Ajit Prakash Shah and
Justice S. Muralidhar. The Court located the rights to dignity and privacy within the right to life
and liberty guaranteed by Article 21 of the Constitution, and held that criminalization of
consensual gay sex violated these rights.

The Court also held that Section 377 offends the guarantee of equality enshrined in Article 14 of
the Constitution, because it creates an unreasonable classification and targets homosexuals as a
class. Article 15 of the Constitution forbids discrimination based on certain characteristics,
including sex. The Court held that the word "sex" includes not only biological sex but also
sexual orientation, and therefore discrimination on the ground of sexual orientation is not
permissible under Article 15.

The Court did not strike down Section 377 as a whole. The section was declared
unconstitutional insofar it criminalizes consensual sexual acts of adults in private. The
judgement keeps intact the provision insofar as it applies to non-consensual non-vaginal
intercourse and intercourse with minors. The court stated that the judgement would hold
until Parliament chose to amend the law.

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160 Delhi Law Times 277

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2. SURESH KUMAR KOUSHAL V. NAZ FOUNDATION 8

It was an appeal made to the Supreme Court as against the orders of the High Court in the case of
Naz Foundation v. Government of NCT of Delhi. The Supreme Court overruled the decision of
the Delhi High Court.

The court held that “Section 377 does not criminalize a particular people or identity or
orientation. It merely identifies certain acts which if committed would constitute an offence.
Such a prohibition regulates sexual conduct regardless of gender identity and orientation’.

Regarding the application of Article 21 of the Constitution, the Supreme Court stated that the law
must be competently legislated whilst also being just, fair and reasonable, which give rise to
notions of legitimate state interest and the principle of proportionality. The court specifically
noted that the right to live with dignity had been recognized as a part of Article 21. In assessing
the High Court’s ruling that Section 377 violated the right to privacy, autonomy and dignity, the
Supreme Court spent little time analysing the application of Article 21 to Section 377, instead
criticizing the High Court for relying too extensively upon judgments from other jurisdictions in
its anxiety to protect the “so-called rights of LGBT persons”.

It concluded that “Section 377 does not suffer from the vice of unconstitutionality” with no
further elaboration. The judges noted that whilst the court found that Section 377 was not
unconstitutional, the legislature was still free to consider the desirability and propriety of deleting
or amending the provision.

3. RECENT CASE OF THE WOMAN PUNJAB CONSTABLE

In an incident that is being talked about over the internet, a woman cop of Punjab Police in
Jalandhar married another girl.

As per reports, Manjit Kaur (the constable) tied knots with her partner despite the fact that she
was of the same sex. Same-sex weddings are considered a very deal in our country but the

8
(2014) 1 SCC 1

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Punjab police sub-inspector has a made a bold decision by timing knots with someone she loves
keeping aside the fact “What Will the Society Think”.

4. LEGAL VALIDITY INTERNATIONALLY

As of May 5, 2017, 21 out of 194 countries allow same-sex couples to marry nationwide. The
world's first legal gay marriage ceremony took place in the Netherlands on Apr. 1, 2001, just
after midnight. In addition to the Netherlands, gay marriage is legal nationwide in Belgium
(2003), Spain (2005), Canada (2005), South Africa (2006), Norway (2009), Sweden (2009),
Argentina (2010), Iceland (2010), Portugal (2010), Denmark (2012), Uruguay (2013), New
Zealand (2013), Brazil (2013), France (2013), Luxembourg (2014), Finland (2014), Ireland
(2015), the United States (2015), Colombia (2016), and Bermuda (2017). Same-sex marriage is
legal in some jurisdictions of Mexico and the United Kingdom (England, Scotland, and Wales)9

Very Recently (June 30th 2017), Bundestag (constitutional body in Germany), passed a bill
allowing Same Sex Marriage.

On April 28, 2015, the US Supreme Court heard oral arguments in Obergefell V. Hodges10 about
whether or not gay marriage is a right guaranteed by the US Constitution, and whether or not gay
marriages performed in states where it has been legalized must be recognized in states that ban
the practice. On June 26, 2015, the US Supreme Court ruled 5-4 that the US Constitution
guarantees the right for same-sex couples to marry in all 50 US states. Associate Justice Anthony
Kennedy stated in the majority opinion: "The Court, in this decision, holds same-sex couples
may exercise the fundamental right to marry in all States."

One alternative is to seek the legal recognition of same-sex couples not through marriages but as
civil unions or partnerships. Legislations recognising civil unions have been enacted in many

9
ProCon, Should Gay Marriage be Legal?, (2017)

10
576 US (2015)

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states like Germany, Argentina etc. which extend spousal benefits to the same-sex partners of
their employees.

However, only providing the option of civil unions and excluding marriages for same-sex
couples is itself discriminatory, since it provides a class of people only an option that possesses
an inherently lower status than marriage. Marriage is not merely a contractual relationship that is
forged for the partners to gain legal benefits and rights from one another. It has the equally
important function of giving both legal and social recognition to a relationship. Marriage, as an
institution, has a certain historical, cultural and social significance which a civil union does not
have. The social status that is conferred by a marriage is as important to same-sex couples as it is
to heterosexual couples.

5. CONCLUSION

It is clear that the anti-discriminatory initiative of Naz Foundation has to be built on to obtain
legal and social recognition of long term same sex relationships through marriages
simultaneously with the efforts to overturn Koushal’s case. There is no advantage in going

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through the half-way house of civil unions as was done in the West. The challenge of obtaining
legislative sanction through a civil union is just as severe as that of obtaining sanction via same-
sex marriages.

It is clear that denial of the choice of marriage to same sex couples further reinforces
discrimination by treating them differently. In a society that gives marriage such religious
significance, the most satisfactory course would be the enablement of same-sex marriages under
the personal laws. However, it would be an uphill task to seek amendments to the personal laws
of all religions. Any judicial intervention in this regard would be perceived as interference in
religious freedom. In this scenario, the most viable option appears to be legislative
amendments to the Special Marriage Act to include same-sex marriages.

Despite apprehension of such public outcry, when the rights of a class of citizens are denied by
reason of a majoritarian norm, an approach to the judiciary is just as right an approach as seeking
legislation from the Parliament. If Koushal’s case were to be overturned, it is very likely that the
principle laid down in Naz Foundation that the prohibition of discrimination by Article 15 on the
basis of sex includes a bar on discrimination on the basis of sexual orientation will be affirmed.
This and international precedents could be used to mount a constitutional challenge to the
Special Marriage Act as being discriminatory on the basis of sexual orientation and seek a
reading of the Act to the extent of permitting same-sex marriage.

6. BIBLIOGRAPHY

1. Anil Trehan, Legal Recognition of Same Sex Marriages in India, (2011) PL

2. ProCon, Should Gay Marriage be Legal?, (2017)
3. [1998] ZACC 15

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4. American Association for Marriage and Family Therapy, Same Sex Parents and their
Children, (2015)
5. Sandeep Ranjan, Homosexuality and Hinduism, (2015)
6. Nayantara Ravichandran, Legal Recognition of Same sex Relationships in India (2016)
7. 160 Delhi Law Times 277
8. (2014) 1 SCC 1
9. ProCon, Should Gay Marriage be Legal?, (2017)
10. 576 US (2015)

7. CASES REFERRED

1. National Coalition for Gay and Lesbian Equality V. Ministry of Justice [1998] ZACC 15

2. Naz Foundation V. Government of NCT of Delhi 2009 160 Delhi Law Times 277
3. Suresh Kumar Koushal V. Naz Foundation 1(SSC) 1
4. Obergefell V. Hodges 576 US (2015)

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