LEGALITY OF SAME-SEX MARRIAGE

INTRODUCTION
Same-sex marriage is the legal union between two people of the same gender or the state of
being married to another person of the same gender. Same-sex marriage takes place between
people who are from LGBTQ( Lesbian, Gay, Bisexual, Transgender, and Queer) Community.
The debate on Same-Sex marriage has been going on for a long time around the world. Many
countries have made laws that allow Same Sex marriage but many countries like India are
still not in favor of same–sex marriage. They still view it as a Societal and Cultural Taboo.
Indian Law still recognizes the traditional definition of marriage as a union between a man
and a woman. The allowance of Same-Sex marriage has become important as it is about
acceptance of the fundamental rights of the people of these communities. Though India has
advanced in providing recognition to these communities and declaring Section 377 as
unconstitutional.
INDIAN BACKWARDNESS
India always lacked gender awareness and it is reflected not only in the general attitude of the
society but also in the law of the land. To safeguard the rights of the individual who are
transgenders, specific legislation, and provisions are needed. Just because transgender does
not fit with the “norms” that society has generally accepted, they had to face not only the
denial of rights but also constant physical and mental oppression. People in India often
believe that same-sex marriages are a part of Western culture and a bad influence of foreign
countries on Indians.
THIRD GENDER RECOGNITION
Keeping up the prestige and supremacy of the Golden thread of Indian Law which talks
about Articles 14,15,19,and21. All these articles ensure the right to life and other basic rights
essential for the enjoyment of life by all citizens and equal opportunity to grow as human
beings irrespective of gender, race, caste, religion, and creed. Supreme Court in its historic
judgment in National Legal Services Authority vs. Union of India (dated 15 April 2014, AIR
2014 SC 1863, the ‘NALSA Judgement’) declared transgenders different from the usual other
two genders and recognized them as the 3rd gender. The court declared that the Constitution
would apply to them as to the other genders. The court described gender identity as not
biological sex but psychological sex which is what gender one perceives as one’s own. The
court also held that public awareness should be conducted to spread awareness about the
transgender community. It also took many other steps for the same like:-
a) Making provisions for legal recognition of ‘third gender’ as an official in all the
documents.
b) Recognizing the third gender as a socially backward class and providing them with
quotas and reservations in educational institutions and places of public employment.
ARTICLE 377
Section 377 of the Indian Penal Code states “Whoever voluntarily has carnal intercourse
against the order of nature with any man, woman or animal shall be punished”. Section 377
criminalized the act of private consensual homosexual sex between adults as well. But this
was a colonial-era law. As time advanced the need for changes arise and hence the court
made changes. Section 377 of IPC was decriminalized following 5 cases which are as
follows:-
1. NAZ Foundation Case ( 2009)- Delhi High Court, in this case, held that Section 377
discriminates against the consensual sex of homosexuals and hence is violative of the
right to life and also discriminates against them as a class which is again a violation of
Article 15 and hence it should be declared unconstitutional.
2. Suresh Kumar Koushal vs NAZ Foundation and others ( 2013)- This judgment was
seen as a step backward. It was held that section 377 is valid and constitutional and
anything against it was seen as committing of offence.
3. NALSA Judgement (2014)- Supreme Court held that Article 14 protects the rights of
all its citizens irrespective of gender including transgender and it also banned
discrimination based on sexual orientation.
4. Justice K.S Puttaswamy Case ( 2017)-
5. Navtej Singh Johar vs Union of India- It partially declared Section 377
unconstitutional. The Supreme Court held that section 377 if used against consenting
adult homosexuality is irrational, arbitrary, and not justified.
The repealing of Section 377 and the resultant decriminalization of homosexuality in
India is a giant leap for the LGBTQ community in India. It also takes India a step closer
to achieving equality of all classes of human beings, and in making lives a lot easier for
sexual minorities.
SAME-SEX MARRIAGE
Sadly, even after all the progress India has made in giving recognition to the Transgender
community and decriminalizing same-sex marriage India is still far behind in providing
constitutional validity and legal acceptance of same-sex marriage. The debate on whether
to give the LGBTQ community the to marriage is important in a country that is home to
an estimated tens of millions of LGBTQ+ people. In 2012, the Indian government put
their population at 2.5 million, but calculations using global estimates believe it to be at
least 10% of the entire population - of more than 135 million. Over the years, acceptance
of homosexuality has also grown in India. A Pew survey in 2020 had 37% of people
saying it should be accepted - an increase of 22% from 15% in 2014. Same-sex marriages
should be allowed in India. There are as many as 34 countries that have already accepted
and given legal acceptance to same-sex marriages or marriages between gays and
lesbians. Our legal system still holds that marriage is a sacrament and a holy union
between a man and a woman.
CONCLUSION
It is high time that India should update its laws and take same-sex marriages under its
ambit of laws. India already took 25 years in decriminalizing consensual sex between
homosexuals. In 1973, the American Psychological Association (APA) declassified
homosexuality as a mental illness and thereafter, paved the way for civil rights for gay
and lesbian people in the United States. And this same result by The Indian Psychiatric
Association (IPA) took 45 years to get released. It was released just months before The
Navtej Singh Johar Judgement. The major setback is in the minds of the people they still
consider the third gender as something which is considered a mental illness. They think of
it as something that can be cured by going to a doctor. They can legalize same-sex
marriage by making provisions in the special marriage act and including transgender also
in the definition of marriage between people of different castes, faith, and religion. People
should be made more aware of homosexuality and change their point of viewing
homosexuality as a mere illness. Instead of giving them advice we should understand and
them.