A marriage is a socially permitted voluntary, stable and exclusive union between a male and a female. It is a civil and religious contract whereby a man is joined and united to women for the purpose of civilized society.
– Aiyar’s Concise Law Dictionary, Tomlin
About the Author
This Article is authored by Sajana J, who is a member of LJRF Center for Women and Child and currently pursuing LLM in Criminal Law from BHARATA MATA SCHOOL OF LEGAL STUDIES , ALUVA.
Introduction
Marriage is a ceremony by which two persons are made husband and wife. It is a matrimonial union.1It is a socially permitted voluntary, stable and exclusive union between a male and a female where the wife is considered as the very source of diligence, not only of dharma, artha or kama but also of moksha or salvation. That is why she is eulogized not as mere patni (wife) but as dharmapatni or a partner in performance of secular as well as spiritual duties.2 In India in Lata Singh v. State of U.P, the Supreme Court has held the right to marry as a fundamental right under Article 21 of the Constitution.
Same Sex Marriages
Same-sex marriage refers to the practice of wedding two men or two women.The Krittivasi Ramayan explains King Bhagiratha’s birth to two ladies, while the Khajuraho Temple in Madhya Pradesh depicts intimate homosexual unity.3 Mainstream religions in India, including Hinduism, Islam, and Christianity, prescribe their own definitions and rules of marriage, without explicitly acknowledging same-sex marriage. Hinduism views marriage as a sacramental, permanent, indissoluble, and eternal union for life, allowing individuals to pursue Dharma, Artha, Kama, and Moksa together. There are a few examples of same-sex marriages that have taken place, but they have not been officially recognized by the authorities.4 While there are many dharmic books that forbid homosexuality, there are also many mythological stories that depict homosexuality as a normal and happy experience.5The Matsya Purana tells the story of Lord Vishnu’s transformation into Mohini, deceiving demons to consume amrut, and Lord Shiva’s love for her, leading to their marriage and birth of Lord Ayyappa.
Islamic law views marriage as a legal agreement, or “matrimonial contract,” between two individuals. In the words of Shama Charan Sircar: Marriage among the muslims is not a sacrament but purely a civil contract.6 Islamic marriage requires a formal, binding contract, with Sunni law allowing a man to marry a Muslim woman or a kitabiya, but a Muslim woman cannot marry anyone else. It is expected that the bride will freely consent to the marriage.7 It is believed that death punishment was prescribed for both active and passive partners, making it controversial for Muslims to accept same-sex partners in partnerships that involve sexual activity.8 Muslim literature suggests Babur’s attraction to same-sex individuals, as seen in his memoir Baburnama and some Sufi poetry, as well as references to Baburi in Kabul. The Quran, Muslim sharia law, and the Manusmriti all establish the legality of same-sex unions. According to the Christian perspective, marriage is a partnership between a man and a woman, as supported by a number of passages from the Bible. Religious institutions and traditional Christian society do not accept same-sex marriages.9 They think that only “traditional” weddings should be allowed.10 A passage in the Old Testament even leads some far-right groups to believe that homosexuals should be stoned to death.11 When the Indian Penal Code was enacted by the British in 1860, they made same-sex relationships illegal in India. Several decades later the decriminalization of homosexuality by the Supreme Court of India in 2018 reignited the debate on same -sex marriages and India’s embrace of liberalism and western values. This legal modification has influenced the course of same-sex relationships in India.12
Legalising Same Sex Marriage in India
Marriage is considered to be an essential part of every person’s life and the right to choose a life partner is a fundamental right.13It is believed that everyone has the basic human right to marriage, even though homosexual couples are not granted this privilege. Article 44 of the Constitution of India directs the state to endeavor to enact a Uniform Civil Code for citizens throughout the territory of India. The LGBTQIA+, a sexual minority, that has faced numerous social battles for emancipation and freedom, now enjoys nearly equal rights worldwide due to numerous social reform initiatives. But In India, they were granted limited civil rights and closet living until the 21st century. Transgender individuals were granted recognition as thirds gender by the Supreme Court in the NALSA judgment, and in 2018, homosexuality was decriminalized by the Navtej Singh Johar Judgment. The LGBTQIA+ community from these rulings, gained confidence to openly express their uniqueness and advocate for their fundamental rights. The Transgender Persons (Protection of Rights) Act, 2019 protects transsexual rights. Despite the decriminalization of homosexuality in 2018 they are waiting for legal recognition of other civil rights (marriage, adoption, maintenance, insurance, etc.).
Same-sex couples are brought before Indian High Courts and the Supreme Court of India by individuals seeking acknowledgment of their fundamental right to marriage and protection from threats they face.
Recent Case Laws
Nikesh P.P. & Anr. v. U.O.I. & Ors (Writ petition under article 226 of Constitution of India decided by Kerala High Court.)14 Nikesh and Sonu, the first “married” gay couple in Kerala, have filed a petition before the Hon’ble High court, contesting the provisions of the Special Marriage Act 1954, namely those that prohibit the registration of homosexual marriage. They contended that the Schedule 2-4 and Section 4 of the Act, which characterize marriage as an affair between a bride and bridegroom alone, have a heterosexual undertone in their wording, making it impossible for the marriage to be registered under the aforementioned Act.
Citing the Navtej Singh Johar Judgment15, the petitioner argued that the Special Marriage Act, 1954 violates the constitutional rights of same-sex couples by excluding them from marriage. Re: Indian Women says gang-raped on Village Court orders, published in Business & Financial News on January 23, 2014,(2014) 4 SCC 786, was another source cited by the petitioners. The Supreme Court’s ruling in a case established that the State has an obligation to protect citizens’ fundamental rights, including freedom of choice in marriage. In a similar vein, reference was made to “Asha Ranjan v. State of Bihar & Ors.” in which the supreme court determined that a woman’s right to select her life partner is protected by the constitution.
“Arun Kumar Anr. v. Inspector General of Registration & Ors.” is the next significant ruling in which the Court ruled that each person has the right to self-identify as their own gender, and as a result, the term “bride” as used in section 5 of the Act must henceforth cover transgender women as well as women. The petitioners relied upon a series of Supreme Court judgment which ruled “that the right to marry is a fundamental right guaranteed under the provisions of the Constitution of India. The petitioners argued that the Indian Constitution guarantees the fundamental right to marry, and seek to invalidate section 4, schedules 2 -4, and other parts limiting it to heterosexual marriage.
Turning now to the Hon’ble High Court of Delhi, it possesses a backlog of petitions requesting recognition and registration of same-sex marriage under the Indian personal laws, the Foreign Marriage Act of 1969, or the Special Marriage Act of 1954. In another case the petitioners first sought registration of the LGBT couple under section 7 of the Hindu Marriage Act, 1955 as they contended that the clause does not specifically forbid same-sex marriage because of its gender-neutral wording.(Abhijit Iyer Mitra v. U.O.I.16)
A gay couple named Vaibhav Jain and Parag Vijay Mehta17 filed another petition in October of 2020. The petitioners were residents of Washington who got married in 1969and they argued that same-sex relationships should be covered by the Foreign Marriage Act of 1969. Inasmuch as the Act does not recognize same sex marriage, they contested its constitutionality. In October 2020, a petition was filed before the Delhi High Court by Dr. Kavita Arora and Ankita Khanna18, who are a lesbian couple and here the court held that the word marriage is not defined anywhere, neither in The Special Marriage Act nor The Foreign Marriage Act, because the concept of marriage comes from customary rules, which do not accept same-sex marriage.
Another argument made in this regard are by Overseas Citizens of India (OCI) Joydeep Sengupta and his American partner Russell Blaine Stephens19 that the Citizenship Act of 1955 does not distinguish between same-sex and different-sex spouses, and that the OCI’s same-sex spouse should be qualified to apply for an OCI card. In Mellissa Ferrier & Anr. v. UOI & Ors.,20 the petitioners were lawfully married in Australia in 2018 after being together for 21 years. They contended that when it comes to granting spouses of foreign descent an Overseas Citizens of India card, the word “spouse” in Section 7A (1)(d) of the Citizenship Act, 1955 is gender neutral and does not distinguish between heterosexual and homosexual marriage.
Similarly many petitions were filed regarding the rights of LGBT community. In the case of Udit Sood and Ors. v. U.O.I. & Anr.21 the petition was filed by three men and a woman from the LGBT community in which they submitted that the Special Marriage Act, 1954’s provisions apply to any couple, regardless of gender, that want to get married. Later Nibedita Dutta and her partner filed a similar plea seeking recognition and registration of lesbian couples who claimed to have solemnized their marriage in Varanasi.22 The most recent case is Zainab Patel v. U.O.I.23 & Ors, in which the petitioner has petitioned the Hon’ble High Court of Delhi to legalize the marriage of transgender individuals.
Same-sex couples have not only flooded Indian High Courts with petitions seeking legal recognition for their marriages, but they have also knocked on the Supreme Court of India, asking for recognition of their union under the country’s current matrimonial laws. The study of judicial approach towards same -sex marriages in India would not be complete without analysing the most recent judgment of the Hon’ble Supreme Court in the Supriyo Chakraborty case.
Supriya Chakraborty & Anr. v. U.O.I.
In December 2021, Mr. Supriyo Chakraborty and Mr. Abhay Dang, who have been together for almost ten years, held a commitment ceremony. They filed a writ petition, Supriyo @ Supriya Chakraborty & Anr. v. U.O.I.,24 to request that the Special Marriage Act, 1954’s provisions be applied to their marriage. Section 4(c) of the Special Marriage Act, 1954 was challenged for being unconstitutional, as it allows any two people to perform a marriage ceremony, yet the restrictions listed in sub-section (c) limit its application to men and women exclusively. The Supreme Court held in a 3:2 decision that same-sex unions are not legally recognized and highlighted that a person’s gender and sexual orientation are not the same. Since the goal of the legislation is not to include same-sex couples within the context of marriage, the court was unable to construe the Special Marriage Act to include same-sex couples. The judgment maintains that state legislatures have the authority to pass legislation recognizing and controlling same-sex unions in the absence of a central law.
Conclusion
Despite historical evidence, some countries prohibit same-sex marriages, thereby denying fundamental rights and exposing LGBTQ+ members to prejudice and discrimination. Hence legal recognition is crucial for their civil and political rights. The Indian Supreme Court’s recent decision against same-sex marriage highlights ongoing fight for LGBTQ+ rights and calls for critical analysis of legal frameworks and societal views.
Footnotes
- P.Ramanatha Aiyar, Concise Law Dictionary, 725, Wadgwa and Company, Nagpur, 3rd Edn, 2005. ↩︎
- According to manusmriti-ix ↩︎
- Devdutt Pattanaik, Did Homosexuality exist in ancient India?,2009,
https://devutt.com/articls/did-homosexuality-exist-in-ancient-India/ ↩︎ - Jyotsna singh ,”Gay couple hold hindu wedding”,BBC News, 29 may 2001 ↩︎
- Nancy Bonvillain, Women and Men: Culture Constructs of Gender,3rd Edn, Prentice Hall, Upper Saddle River, NJ, 2001. ↩︎
- Dr.Paras Diwan, Family law, 26, 10th Edn, Allahabad Law Agency, 2013. ↩︎
- B.M.Gandhi’s, family law,92,2nd Edn, EBC Publishing (p) Ltd.,Lucknow, 2019. ↩︎
- Stephen o. Murray and will Roscoe, Islamic homosexualities: culture, history, and literature, illustrated,NYU Press, 1997. ↩︎
- Rory McVeigh and D.Diaz Maria-Elena, Voting to ban same sex marriage: interest, value, and communities, Americal Sociological Review, 74(6),891-915, 2009. ↩︎
- Ibid ↩︎
- Jeffrey Collins, Ex-Bob jones president apologizes for 1980 anti-gay remarks ,Ap news, 24 march 2015 ↩︎
- https://www.lawctopus.com/academike/history-of-homosexuality-in-india/ ↩︎
- Shakti vahini v. Union of India, (2018) 7 SCC 192 ↩︎
- W.P,(C) 2186/ 2020. ↩︎
- AIR 2018 SC 432 ↩︎
- W.P. ( C) No.6371/2020 ↩︎
- Vaibhav Jain & Anr v. Union of India, W.P. (C) 7657/2020 ↩︎
- Dr. Kavita Arora & Anr v. Union of India, W.P.( C) 7692/2020. ↩︎
- Joydeep Sengupta v. Union of India, W.P.(C) 6150/2021. ↩︎
- W.P. (C) 13206/2021. ↩︎
- W.P.(C).2574/2021. ↩︎
- Nibedita Dutta and Anr v. Union of India &ors, W.P.(C) No. 13528/2022. ↩︎
- W.P. ©.No.13535/2021 ↩︎
- W.P.(C) N0.1011/2022 ↩︎
