SAME SEX MARRIAGE RECOGNITION

“Love has no gender, Compassion has no religion,

The character has no race”.
Marriage is an institution which gives recognition to the relationship of two individuals. The
purpose of marriage is companionship, redemption and procreation. The sole purpose of
marriage is not only the procreation of children but also to have a partner, who understands your
feelings and supports you emotionally, socially and physically. In India, we define ‘marriage’ as
a union of a man and a woman. The Indian legal system does not recognize homosexual
marriages till now. The right to marry by one’s own choice is a fundamental right under Article
21 of the Constitution of India as it was held in the landmark judgment of Lata Singh v. State of
Uttar Pradesh, 2006 SC. The LGBTQ+ community is a vulnerable section of society and their
rights need to be protected. The right to marry is a fundamental right of homosexual couples also
and it has to be recognized and legalized in our country. It is very important for the recognition
and protection of their relationships. They already have faced a lot of discrimination in society
we should not be so harsh towards them.

Same-sex marriage is a marriage between homosexual couples. For example, marriage of a man
and a man or a woman and a woman. These marriages are also called gay marriages.
Homosexuality is not something that can be created, it is born, Some people say it is against
nature. Something which is inherited in an individual how it can be against nature? Just because
our society has seen heterosexual couples majorly, on the basis of it can we conclude that
homosexuality is against nature? The answer is no. It is nature that makes the LGBTQ+
community the way they are. We need to accept them as it is, they are. The lack of legal
recognition of their marriages not only denies them legal and social benefits but also increases
the risk of discrimination and violence.
In the landmark Judgment of National Legal Service Authority v. Union of India and Or’s. The
honourable Supreme Court identified the rights of the transgender community as a third gender.
Transgender is not a term limited to persons whose genitals are intermixed but it is a blanket
term for people whose gender expression, identity or behaviour differs from the norms expected
from their birth sex. The life of this community is very difficult in Indian society. They have
faced a lot of discrimination. After they were given the right as a third gender, a significant
change took place, but before that, the condition was much worse. A larger part of the population
was unrecognized. In recent times the picture is not very good, they are still facing a lot of
discrimination in society. People consider them abnormal. We need to understand that they are
not abnormal, they are just different.
Section 377 of the Indian Penal Code, 1860 (hereinafter IPC), which criminalizes homosexuality
shows that the suffering of the LGBTQ community is not new in society. It was there from the
colonial period or might be before that. But fortunately this provision, to the extent it
criminalizes the consensual homosexual intercourse of adults in private, was struck down in the
remarkable judgment of Navtej Singh Johar v. Union of India, 2018 SC. It was a major victory
for the homosexual couples. This was not an easy journey for the people of this community. Let’s
throw some light on this journey. This all started in 1994 When the very first time NGO- AIDS
Bhedbhav Virodhi Abhiyan filed a petition in the Delhi High Court for the decriminalization of
Section-377 IPC, but it was dismissed in 2001. Then came the Naz Foundation v. Government of
NCT and Ors., 2009 Delhi High Court, It was a Public Interest Litigation which was preferred by
an NGO known as Naz Foundation to challenge the constitutional validity of Section-377 IPC. In
this case, the Delhi High Court held that Section-377 IPC, insofar as it criminalizes consensual
sexual acts of adults in private is violative of Articles 21, 14 and 15 of the constitution. But this
Judgment was challenged in the Supreme Court in Suresh Kumar Koushal v. Naz Foundation &
Others, 2013. In this case, the honourable Supreme Court set aside the impugned order and held
that Section 377 does not suffer from any constitutional infirmity. However, the apex court
clarified that notwithstanding this judgment, the competent legislature feels free to consider the
desirability and propriety of deleting section 377 from the legislature or amending the same.
After this in the year 2018 finally the Navtej Singh Johar judgment (supra) came which
decriminalized homosexuality. However, decriminalization of homosexuality didn’t legalize
same-sex marriages. Several cases have been filed, but as of now, legal recognition has not been
granted to the marriage of homosexual couples. There is no doubt that the Navtej Singh Johar
judgment has a sigificant impact on the lives of homosexual couples. It has increased the
visibility of LGBTQ+ individuals and their rights. This has also encouraged the LGBTQ +
community to come forward and openly identify themselves without fear of legal prosecution.
This has also created opportunities for the LGBTQ+ community to advocate for their rights and
demand legal recognition and protection. It led to public awareness and support for LGBTQ+
rights in India.

Society thinks these homosexual relations are a concept of modern society but it is not true. The
Khajuraho temple which a famous ancient temple in Madhya Pradesh. It was built in the 10 th
century by rulers of the Rajput Chandela Dynasty. This temple is decorated with many sculptures
reflecting sexuality in ancient India. Some of these sculptures also display homosexual acts
which prove the homosexuality in ancient India. The other very famous text Manusmriti, was
followed by the people of ancient India as law code. It prescribes punishment for homosexual
acts. Though this script does not approve homosexual acts it proves the existence of
homosexuality at that time. The one more thing that is a manual of ancient time-Arthshastra, It
imposed a duty on the king to punish those who indulged in homosexual acts at that time. This
also proves the existence of homosexuality at that time. Therefore we can conclude that
homosexuality is not a new thing that is prevailing in society rather it has been there since
ancient times.

In recent times, though same-sex marriages are not legal in India It does not mean that they are
not taking place in Indian society. Many homosexual couples tied the knot of marriage in their
relationship. The first documented same-sex marriage in India took place in 1987 when two
policewomen, Urmila Srivastava and Leela Namdeo got married. These women are from
Madhya Pradesh. Following them a number of same-sex couples entered into marriage and this
is a significant number. We cannot ignore such a large number of people, their rights need to be
considered and protected. Legalization of same-sex marriage would provide them social security
and acceptance as well as many more rights that are associated with marriage.

India is not the only country in which this issue has arisen rather 134 countries are there in the
world that decriminalized homosexuality and 34 countries are there in the world that legalized
same-sex marriages. In which the countries like France, Germany, Africa, Spain, the United
Kingdom, the United States of America, Canada and Australia are included. The United States
was the first country where a local jurisdiction knowingly issued a marriage license to a same-
sex couple in 1971. Denmark was the first country to offer a civil union in 1989. The
Netherlands was the first European country to legalise same-sex marriage in 2001. Canada was
the first American country to legalise same-sex marriage in 2005. South Africa is the first African
country to legalize same-sex marriage through a court ruling in 2005. Mexico was the first local
jurisdiction to legalize same-sex marriage in Latin America in 2010. Argentina was the first
South American country to legalize same-sex marriage in 2010. New Zealand was the first
Oceanian country to legalize same-sex marriage in 2013. Ireland was the first country to legalize
same-sex marriage through a referendum in 2015. Taiwan was the first Asian country to legalize
same-sex marriage in 2019. Cuba is the first one-party state to legalize same-sex marriage in
2022.

Supreme Court considered this matter in the case Supriyo @ Supriya Chakraborty v. Union of
India though the judgment has been reserved. Let’s throw some light on this case. In this case,
the petitioner has filed the petition under Article 32 of the constitution seeking recognition of the
right of couples of the same gender to marry. Apart from this some other petitions on the same
matter were filed in different high courts under Article 226 of the Constitution. The Honourable
Supreme Court transferred itself all the petitions pending in the High Courts on this issue. In this
case, the petitioner relied upon the decision of the honourable Supreme Court in K S
Puttaswamy (Retired) and Another v. Union of India and Another & Navtej Singh Johar v. Union
of India. Supreme Court constituted a Constitution bench of five judges with due regard to
Article-145(3) of the Constitution. The bench includes honourable Chief Justice of India DY
Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice
PS Narasimha.

Proponents of legalizing same-sex marriage argued that denying the people of the LGBTQ+
community the right to marry is a violation of their fundamental rights under Articles 14, 15, and
21 of the Constitution. Secondly, they said that legalizing same-sex marriage would promote
social acceptance, equality and inclusivity. Thirdly, It would have a positive impact on the minds
of the LGBTQ+ community. Legalizing same-sex marriage is quite equitable, just reasonable as
per the Constitutional principle.

Opponents of legalizing same-sex marriage argue that marriage in India is a sacred institution.
They believed that legal recognition of same-sex marriage would deprive the traditional values
and the sacred institution of marriage. Secondly, it would have a bad impact on the minds of the
children raised by homosexual couples. They believed that children raised by same-sex couples
are more likely to have Emotional and behavioural problems. Lastly, they argued that same-sex
marriages are not supported by the majority of the Indian Population.

CJI while hearing this petition made a remark over the commonly raised issue of the suitability
of same-sex couples to adopt and raise children. “What happens when a child of a heterosexual
couple sees domestic violence? Will that child grow up in a normal atmosphere, after seeing their
father being an alcoholic, coming home and thrashing the mother every night, and asking for
money for alcohol? So much for heterosexual….. This is why, as I said, there are no absolutes”.
Interestingly, while the National Commission for Protection of Child Rights has raised concerns
about the adoption of children by same-sex couples, the Delhi Commission for Protection of
Child Rights has taken a progressive stance supporting adoption rights for same-sex couples.
Same-sex couples should be given adoption rights. One of the best examples is Gauri Sawant,
She adopts children of sex workers, and transgenders and gives them a new life. Right now, she
is trying to gather funds to build Nani ka Ghar, a rescue home for such children. Gauri is
transgender and in her words, “You don’t need a Uterus to be a Mother”. Gauri is a complete
woman because she has every shade of womanhood in her. “She is mother, daughter, sister and a
grandmother too.
A child wants love and affection it does not matter whether a heterosexual couple is raising him.
or a homosexual couple is raising him, What is important is how the child grows up, and what
life lesson has been given to him by his parents. In India, there is no law that prohibits the
LGBTQ+ community from adopting the child but at the same time, there is also no law that
makes them entitled to do so. Legalization of their marriage would grant them the right to
adoption also. It would have a positive impact on the lives of orphan children who need parents.
It would also increase the rate of adoption in India which would ultimately amount to a growth
in the Indian Economy as when the children are given a better education they would serve the
country in future, Therefore, the Legalization of same-sex marriage is the need of the hour.

The issue is not of the legalization of same-sex marriage, the issue is of equality in society, the
issue is of social acceptance, the issue is of being treated as human beings and lastly, the issue is
of the fundamental right to marry under the constitution, which cannot deny. Therefore, It is
important to grant legal recognition to their marriage.

ADITI VISHWAKARMA.
(Legal Researcher)