Research ArticleConstitutional LawFamily Law

Status Of Being A Husband And A Wife In A Homosexual Marriage


Author: Aparna Mallik, 3rd year student at KIIT School Of Law.

ABTRACT

The paper concerns the analysis of homosexual marriages in India which is a constant conflict with the societal norms, culture, ethos, and morality is bounded upon. There is an attempt of explaining the evolution of homosexual laws in India and the battle with the government and judicial. The seeking of same-sex marriage is indirectly asking to expand the institution of marriage. The only motive behind it to seek civil rights and privileges attached to the marriage act that it required it is not only the solemnization of love constructing to marriage. In society all the benefits are available to heterosexual de facto partners, but continue to be unavailable to homosexual partners. Apart the hustle, conflict of ideas with the community and government is perpetual. It focuses both the side of the arguments and a mere terminations of both the ideologies.

  1. INTRODUCTION

In society the institution of marriage is generally extended only to male-female relationships, although most marriage statutes use gender-neutral language. The acceptance of homosexual marriage has only recently forthcoming as society is gradually becoming more permissive. The LGBT community’s identity and collective strength. It is diverse in political affliction. Its neither a disease nor the any kind of mental trauma it’s the personal choice about owns sexual orientation. No one should be discriminated or categories themselves different, LGBT are the part of the society and should be guaranteed all the rights that an individual is provided. Now a days there is a greater risk for emotional health struggle like anxiety, depression and abuse is felt to the LGBT students due to the discrimination by the family, friends, society and community. Due to this many of them could not or struggling to come out and speak up about their sexual orientation. So there should be no barrier on the legal ground and violate under Article 14,15,19 and 21 of Constitution of India let homosexuals fly under their own colors. Despite criticism from groups and individuals who believe sodomy law is obsolete and should be repealed according to many jurisdictions have retained their statutory prohibitions on homosexual marriages. Hence, regardless of duration, same-sex relationships are not legally recognized in most of the countries as a result the homosexual partners are denied many of legal rights and economic privileges automatically bestowed by marital status. In society all the benefits are available to heterosexual de facto partners, but continue to be unavailable to homosexual partners[1]. In the very recent reply by the Delhi High court dismissed the petitions stating that same-sex individuals relationships are not comparable with the “Indian Family unit concept”[2]. The Ministry of law and Justice says the “societal morality” are relevant in considering the validity of law and such societal morality and public acceptance is based on Indian Ethos that is enforced by the legislature. Indeed, to the defense there is a fundamental right to choice of partner, and which can be solemnized marriage under the special Marriage Act. There is an approach to the High Court seeking “non-discriminatory access” to the Special Marriage Act for LGBTQ+ individuals.

  1. The Homosexual Marriages: Global scenario

The Homosexual relationship come from Ancient Greece, where the same sex relation were the societal norm. Also there were marriages between same sex have occurred with relative past both within Christians and non-Christians community[3]. After in pre-industrial societies homosexuality was accepted by in lower classes but considered immoral in upper class. Also sexual orientation is depicted in love poetry and paintings in historic figures in Alexander, plato, virgil, Michelangelo includedand centered upon relationships with people of same gender.

In Hindu mythology the homosexuality instances were depicted. Ancient texts as Manu Smriti, Kamasutra, Upanishads and Purans also refer to relationships of same sex[4]. The history is filled evidencing the instance of homosexuality in ancient past. But over the world the lights of LGBTQ+ have find the legal initiatives from right to privacy and same-sex relationship to protection from discrimination in work place and jobs and marriage.

There are phenomenon at times to tolerate the advocate legal recognition of unions, with discriminating certain rights against person who live with someone of same-sex. There is a legal equivalence to marriage along with the legal possibility of adopting children, thus decriminalized homosexual acts. However, there is a vast changes in conception of homosexuality was witnessed last century. In 1974, the homosexuality was considered to be abnormal behavior and classified as mental disorder. Since the, evolution took over where it has been decriminalized in different countries. Also various countries across the globe has anti-discriminatory or equal opportunity laws and policies to protect the rights of Gays and lesbians[5]. There are currently only 25 countries that allow same-sex marriages in the worldwide. The civil unions and other forms of legal recognition for same-sex offer the most of the rights occorded in a civil marriage such as in Denmark, Finland, Germany, Iceland, UK, New-zealand, Israel erc. Where as more than 50 countries including India consider homosexuality a crime and deny even the basic human Rights and Homosexual acts remain publishable by death in Afghanistan, Iran, Nigeria, Pakistan, Saudi Arabia, Sudan, UAE and Yemen. In Bangladesh, Bhutan Maldives,Nepal, Singapore ,have by life in prison. But in India in 2018 the Apex court issued a verdict on the de-criminalising section 377 as it infringed on the fundamental Rights of autonomy, privacy, identity of individuals. In England homosexual relationships involving anal intercourse is not illegal between consenting adults as it is a private conduct.

Homosexuality have different features underlying phenomenon existed and not a recent invention of our society while manifestation of homosexuality might highly depend on the social factors and it remains constant.[6]

 

  1. Homosexual Laws in India

India, so far have a positive changes in the first instant step in decriminalizing the consensual sex of two adults under section 377 of IPC. There is a little changes have taken place as regards social and legal recognition and homosexuals remain victims of violence in different state and society. The court’s decision overturned the 19-century law introduced by the British. The main focus the judges kept on the individual autonomy, non-discrimination and privacy and pointed out the American Psychiatric Association’s decisions 1973 to discard homosexuality from the list of mental disorder[7]. The Section 377 had a serious consequences for the LGBTQ community in India. The law left individuals get the harassment, teasing, beating and blackmail. Also number of were prone into forced marriage as a solution for a so called treatment. There are terrifying cases of  “corrective rape” where the lesbians are raped by men with the intention of turning individual into heterosexuals.[8] In India coming out is being rejected by the family and ostracized by the community and prone to violence too. In a study by Elizabeth Thomas of Christ University and Apoorva B of Manipal University found that parents try to use violence to change in coming out of daughters’ sexuality[9]. Unfortunately, many psychologists and mental health professionals still share the society’s hetero-sexism in a tend to show sympathy towards the clients. As a result they won’t go to seek therapy in the fear that therapists wouldn’t understand their issues or would become hostile to them.

3.1 CENTRE APPROACH

De-criminalizing section 377 is not a fight to its end. Here goes with the first step for the equality and proclamation of rights. There was many petitions that was filed in order to legalize same-sex marriage. In the recent petition the government gave its reply on February 26,2021 opposing same-sex marriage in Delhi High Court. It gave the reason that it is not comparable with ‘Indian family unit concept’[10]. According to the government marriage is an institution which just not matter between two individuals but “a solemn institution” between “a biological man and a women”. There is dismissal of petitions for the recognition of same-sex marriage under existing law, stating marriage in India is based on customs prevailing past history, rituals, culture, ethics, social values and morality. Moreover Section 377 of  IPC covers homosexuality where a particular behaviour is decriminalized by the Supreme Court. But the legitimacy of such human conduct in still in question.

In reply of three petitions seeking same-sex marriages legalization, the government said the existence of “legitimate State interest” in limiting the recognition of hetero couple marriage. The concept of “societal morality” to be held relevant validating the law and legislature to enforce such morality and public acceptance which is base on the ethics of Indian culture and values said by the Ministry of Law and Justice. In the defence of Article 21 the centre said that the fundamental right under Article 21 is procedure established by law and it cannot be expanded to recognize fundamental right for same sex marriage.

Further said that any interference in the existing marriage laws would create havoc with the personal laws in the country. It also analyse the existing rights for this is not permissible for the court to override the legislative intent with regard to limiting the legal recognition of marriage to heterosexual couple. Marriage between two same gender is not recognized or accepted in any unconfined personal law or codified statutory law. According to the centre living together as partners and having sexual relationship by LGBTQ+ couples cannot be compared with the Indian concept of a family unit where a biological man is a husband and women is a wife and children are born out of this union.  In same-sex marriage it is impossible to term one as husband and another wife.  In the reply one of the petition sought the enforcement of fundamental right to choice of partner, after their application for solemnization of marriage under special marriage act was rejected. The hustle between the community and the government is seems to be a never ending grapple. In India its not only the fight for the homosexual it is against the religion, government, homophobic centre approach and the so called society.

  1. EVOLUTION ON SECTION 377 OF IPC

Case laws

4.1 NAZ foundation v. Government NCT of Delhi[11]

The Judgement was in the favour of the defendant. The Supreme Court, on July 9, 2009 consider the appeal to the petitioner to shield the rights of the homosexuals on the ground of morality. But on July 20, 2009 the court refused to decriminalise section 377 of IPC which states the “unnatural offences”. It states there is no discrimination of fundamental rights and thus Section 377 of IPC is valid and constitutional. Thus, thereby the court verdicts that the Section 377 will continue to prevail and the clarification will be hold by the parliament for the effect of Section 377. The court believes that the Law reflects its essence on the Indian society. So, the societal norms and morality to be taken into consideration in implementation of any law.

The Supreme Court gave a dissatisfaction Judgement. There is a complete violation on the ground of Article 14, Article 19 and article 21 of constitution of India. LGBT community has historically been vulnerable to violence, harassment, discrimination, exclusion, stigmatisation and prejudice both in society at huge and at the place of business. It is unconstitutional and unreasonable restriction to the rights of LGBT.

4.2 Navtej Johar v UOI[12]

Though later the Navtej Singh v Union of India is a terrific win for the LGBT network in that homosexual acts have now been decriminalized. However, it is well really worth noting the Navtej Singh amounts to simplest decriminalisation and does no longer apprehend ‘identical intercourse relationships’

The homosexuals or the same-sex couple does not get recognitions as the heterosexual couple get in the society. The LGBT community also require all the blessings, pension and gratitude. A same-sex companion nominated with the aid of a worker may also rely on third party carrier carries which includes insurers, pension and provident fund government and so forth. The LGBT should get liberty to get married and to be recognised by the society as the heterosexual. Also to get the rights for adoption of child and guarantee all the rights to the child and recognised by the society.

The same-sex relationship should be valid as the heterosexual marriage. It also may invole an extraordinary social transformation & revolutionary outlook with the aid of dispensation.

As the decision does now not validate or legalise identical sex relationships, further guidance by using the courts and first-rate movement by using manner of the Government of India may be useful in clarifying the responsibilities and obligations of companies towards their personnel.

Later in 2017, a 9 choose bench of the Supreme Court in K.S. Puttaswamy v Union of India[13], unanimously dominated that the Constitution set up an essential right to privateness creating a sector of private autonomy inside which the State can’t interfere. Some of the judges openly doubted the correctness of the Suresh Kumar Koushal judgment. The judges led with the aid of Justice Chandrachud who said that the proper to privateness & the “Protection of sexual orientation lie on the core of the fundamental rights guaranteed by means of Articles 14, 15 and 21 of the Constitution” laid the jurisprudential foundation for the Navtej Singh Case.

4.3 Specific grounds on violation of Articles of Constitution of India are as follows:

Violation of Article 14:

The Article 14 of the constitution is violative for the unequal and discrimination as a separate class of citizens to the LGBT community. The section 377 of IPC lacks the reasonable progressive with the objective to protect women and children, as non-consensual acts which criminalise under section 377 of IPC have already penalised under section 375 of IPC and under POSCO Act. So, in the light of t, the presence of section 377 of IPC in present form is distasteful and objectionable as it neither harms the children nor women. Though the LGBT identity and individuality is misunderstood and wrongly targeted.

Violation of Article 15:

The Article 15 prohibits the discrimination on the ground of religion, race, caste, sex, or place of birth. So section 377 here violate on the basis of sexuality.

Violation of Article 19:

The restriction imposed by 377 is unreasonable and does not coincide the criteria of proportionality and violative of the fundamental rights of freedom of expression including the right to choose a sexual partner.

So, Section 377 IPC indulge private acts of adults including the LGBT community which are not only consensual but also do not affect the public order and morality. The should be no hindrance in freedom of expression and choice.  It’s completely once own liberty to choose and express sexuality.

Violation of Article 21:

Article 21 states the protection of life and personal liberty. It’s the rights of LGBT to express their choices in terms of sexual inclination without any restriction by the criminal prosecution. So section 377 IPC in its present form is violative of right to dignity and privacy under Article 21 of the constitution. Sexual orientation is an essential and absolute privacy.

But now the scenario is more desirable. The LGBT community’s identity and collective strength. It is diverse in political affliction. Its neither a disease nor the any kind of mental trauma it’s the personal choice about owns sexual orientation. No one should be discriminated or categories themselves different, LGBT are the part of the society and should be guaranteed all the rights that an individual is provided. Now a days there is a greater risk for emotional health struggle like anxiety, depression and abuse is felt to the LGBT students due to the discrimination by the family, friends, society and community. Due to this many of them could not or struggling to come out and speak up about their sexual orientation. So there should be no barrier on the legal ground and violate under Article 14,15,19 and 21 of Constitution of India let homosexuals fly under their own colors.

CONCLUSION

The Government inn its replay also argued that marriage between two private individuals cannot be relegated to the concept of privacy of Individual. The Centre told Delhi High Court marriage is a public recognition of a relationship and is no way can be private in person. Also criticism to Navtej Johar case that it does not extend the right to privacy to include fundamental right to marry by two individuals of same gender. So basically there is a denial of minority rights by the government. The government here is delegating its power in excessive, where it clearly stated that the judiciary cannot change or intervene the law its completely on the legislative to do.

After all such battle the idea of choice does fit into the homophobic government, structures or template of law and social norms defining a marriage. Its hard for the a government and society to engage the fluidity that cones with choice, love, and passion that drives such affection, the honesty that is attached with to break the norm. The seeking of same-sex marriage is indirectly asking to expand the institution of marriage. The only motive behind it to seek civil rights and privileges attached to the marriage act that it required it is not only the solemnization of love constructing to marriage.


References

[1] A relationship not based on blood or marriage is not entitled for Social Security benefits under Employee Provident Fund Act, Pension Act, Workmen Compensation Act, Insurance Act, Housing Act etc.

[2] The Indian Express, April 8, 2021: https://indianexpress.com/article/india/same-sex-marriages-legal-recognition-centre-7204303/.

[3] http://www.ilga.info/index.html.

[4] Sandeep Roy Chowdhury, ‘The best of both worlds? South Asian bisexuals speak out,’ India Currents, February

issue, 1996.

[5] http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_2/narrain/.

[6] C. Alfred Kinsey, W.B. Pomeroy and C.E. Martin, Sexual Behavior In The Human Male (WB Saunders, Philadelphia , 1948).

[7] Decriminalizing homosexuality in India, on Feb 2019, vol 50, no 2 https://www.apa.org/monitor/2019/02/homosexuality-india .

[8] Kanila k. Ahuja, PhD, an associate professor at Lady Shri Ram College for women at the University of Delhi.

[9] Journal of Psychosocial Research, Vol.11, No.2, 2016.

[10] https://indianexpress.com/article/india/same-sex-marriages-legal-recognition-centre-7204303/.

[11] (2009)5 AD (Del)429.

[12] W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016.

[13]  (2017) 10 SCC 641.

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