INCORPORATION OF SAME SEX MARRIAGE REGULATIONS IN THE ALREADY EXISTING PERSONAL LAWS BY RIDHI RANKA

In India, for a long time the people of the LGBTQ+ community have faced many struggles in the form of social and legal discrimination. To such an extent that sexual intercourse between two people of the same gender was classified to be a crime under section 377 the Indian Penal Code.[1] People from the LGBTQ+ community had to fight for their rights because of the social discrimination faced by them. Protests were going on all over world for the recognition of the people from LGBTQ+ community.[2] This was one of first social media movements for the recognition of the LGBTQ relationships which took place world-wide. While most of the countries world-wide had recognized the rights of people of LGBTQ+ community in India Sexual acts between people of the same gender was still held to be a crime punishable with imprisonment which may extend up to ten years. On 6th September, 2018 the Hon’ble Supreme Court declared Section 377 to be unconstitutional to the extent as it “so far as criminalises consensual sexual conduct between adults of the same sex[3]

Decriminalization of Section 377 by the Hon’ble Supreme Court was looked upon by the people of LGBTQ+ community as a first step to the end of this long everlasting Discrimination.  Over one 100 countries in the world have repealed or decriminalized consensual relationships between people of the same sex. Most of these countries have a step further in creating laws which also allow same sex marriage. In India, the everlasting struggle of LGBTQ+ community still does not seem to have come to a near end.

In the legal perspective, decriminalization of Section 377 was only the first steps towards ending this discrimination, the Hon’ble Supreme Court also observed that, “Looking at the issue of same sex marriage, we hold that it is an inherent right of an adult to have marital relation with another adult with his/her free consent and according to her/his will.[4]” What the people of the LGBTQ+ community want is a social acceptance which and equality. One of the major concerns which governs the community is same sex marriage, while Section 377 was decriminalised over 20 months ago, the legislature has not yet taken any initiatives in this direction.[5]

In a country like India, it is essential for the legislation to allow members of the LGBTQ+ to tie a knot in the holy matrimony for the reduction in social discrimination faced by the community at large[6]. Public discussions of subjects like sexual orientation or sexual behaviors is treated as a topic off-limits or as a taboo in the Indian Society. People in India are more likely to accept the LGBTQ+ community only if the Government itself makes same sex marriage legal in India[7]. Therefore, by allowing the same rights to gay couples at par with heterosexual couples, can help in changing the traditional definition of a family or relationship in India which will help in reduction of social as well as legal discrimination faced by the LGBTQ+ community.

Among many issues one of the most upsetting issue that the LGBTQ+ community face is that the only method for them to have a child is either to adopt one or have one through surrogacy. In India, the privilege of adopting a child has only been extended to married couples and individuals, this prohibits couples of the same sex to adopt a child together[8]. Further, according to the Surrogacy (Regulation) Bill of 2016, the privilege to have a surrogate child has only been extended to couples, therefore, this prohibits Gay couples for having a child either through adoption or surrogacy[9].

The Supreme Court of United States of America while allowing same sex marriages observed that “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.  They ask for equal dignity in the eyes of the law. The Constitution grants them that right[10]”.

Further, there are any rights which are affected because same sex marriage is not permitted in India. The most important of which include, a right to succession, inheritance, pension, guardianship and maintenance of the spouse[11]. Further, the Supreme Court of India has incorporated the right to choose a partner for marriage as a Fundamental Right under Article 21 as a Right to Live Life with dignity in the case of Shakti Vahini v. Union of India and others[12].

International Organisations including the United Nations Organisation have directed the states to incorporates laws for civil unions for the LGBTQ+ community[13]. Over thirty countries all around the world have legalised Same Sex or Gay Marriages, including countries like United States of America, Taiwan. Further countries like Hong Kong, United Kingdom, have permitted civil unions or partnerships for same sex couple, which gives them equal rights as married couples.

In India, giving the option of Civil Unions is one step forward from where we currently stand but it is still discriminatory[14] towards the people of the LGBTQ+ community and this would not the solve the issues which gay couples faced with regards to the rights of adoption, succession, inheritance, pension, guardianship and maintenance of the spouse. I would further require that we amend related Acts such as the Indian Succession Act, 1925, Indian Adoption Act, Guardians and Wards Act, 1890, etc. On the other hand, if we were to create a new legislation altogether for Same Sex Marriages, there might be a delay due to vociferous opposition due to political reasons[15]. The LGBTQ+ community as a whole would still be treated as a different class of people. Therefore, seeking for the Legislature to recognise civil unions between gay couples does not seem to be the right choice[16].

In India, marriage is considered to be holy matrimony and India has provided for separate Personal Laws based on Religious Practices. The personal laws are divided into the Religion of the person[17] with regard to matters related to Marriage, Adoption and Succession, and further provides for the Indian Succession Act, the Special Marriage Act, Indian Adoption Act which governs relationship across different religions.[18]

In this background, the most suitable course of action would be to amend the personal laws. Section 5 of the Hindu Marriage Act permits the solemnization of marriage between any two Hindus, as such it does not specify that a marriage must be solemnised between a man and woman[19]. It only states that the bride must attain 18 years of age and the bridegroom must attain the age of 21. Recognition of same sex marriage under the Hindu Marriage Act can be done by following nay of the following approaches, firstly by an including it under the head of Customs. Secondly, by an interpretation that the existing laws already permit same sex marriage as was done by the Madras High Court. Thirdly, by amending the act to specifically include same sex marriage since the act is otherwise gender neutral apart from the terms bride and bridegroom[20].

Under the Muslim Personal Laws, marriages are not solemnised under any specific law in force, due to which there is no statutory definition of the term marriage, it is considered to be a contract. A specific interpretation and amendment to the Dissolution of Muslim Marriage Act, 1939 can be made to include same sex Marriages, by including provisions for same sex marriage dissolution.

Under the Cristian Personal Laws, marriage has been defined to mean between any two ‘persons’, where at least one the parties is a Christian.[21] Further, it specifies that the ‘woman’ must be have attained 18 years of age and the ‘man’ to be 21 years of age.[22] This Act does not specify any need of only heterosexual relations. Recognition of same sex marriage under the Cristian Personal Laws can be made by an interpretation that the existing laws already permit same sex marriage would be sufficient to allow Same Sex Marriage.

The Special Marriage Act facilitates marriage between people irrespective of their religion. By registering the marriage instead of having a religious service in accordance with Section 12[23] of the Act, which states that both the bride and groom say that “”I (A) take thee (B), to be my lawful wife (or husband)”. Further, the fourth Schedule provide for the specimen Certificate of Marriage to include signature of Bride and Bridegroom for completion of marriage. Recognition of same sex marriage under the Special Marriage Act can be made by an amendment to Section 12 and Fourth Schedule along with an interpretation to include same sex marriage.

The LGBTQ+ community has faced legal and social discrimination for decades and a step that will help them overcome the same is recognition of same sex marriage as has been discussed above. The recognition of Civil Unions as the West did will not solve the issue of legal and social discrimination. Denial of same sex marriage in itself is discriminatory. In India, marriage is considered to be a holy matrimony and the best way to recognize same sex marriage is by amendment of personal laws for social and legal equality.

[1] Brendan O’Neill, Why gay marriage is a very bad idea, Spiked (March 22, 2012) http://www. spiked-online.com/newsite/article/12273#.Ulkj_BZpt2E

[2]Simpson, D. (2002). USA: New York protest. Tobacco Control11(4), 294–294. doi: 10.1136/tc.11.4.294

[3] Navtej Singh Johar v. Union of India,

[4] Ibid.

[5] Gerstmann, E. (n.d.). Same-Sex Marriage and the Fundamental Right to Marry. Same-Sex Marriage and the Constitution, 95–125. doi: 10.1017/9781316795798.006

[6] Thomas John, Liberating Marriage: Same-Sex Unions and the Law in India, in Law Like Love 357 (Arvind Narrain & Alok Gupta eds., 2011)

[7] Corvino, J. (2012). The Case for Same-Sex Marriage. Debating Same-Sex Marriage, 4–90. doi: 10.1093/acprof:osobl/9780199756322.003.0002

[8] Martha Nussbaum, A Right to Marry? Same-sex Marriage and Constitutional Law, Dissent Magazine (2009)

[9] Hart-Brinson, P. (2018). The Evolution of Public Opinion about Gay Marriage. The Gay Marriage Generation, 72–95. doi: 10.18574/nyu/9781479800513.003.0004

[10] Obergefell v. Hodges, 576 U.S. 644 (2015)

[11] Siddharth Narrain & Birsha Ohdedar, A legal perspective on Same-Sex Marriage and other Queer relationships in India, Orinam, http://orinam.net/resources-for/law-and-enforcement/ same-sex-marriage-in-india/ (last visited May 08, 2020)

[12] Shakti Vahini vs Union Of India on 27 March, 2018, Supreme Court of India

[13] UN widens its same-sex marriage policy to include all legally-married staff | | UN News. (n.d.). Retrieved from https://news.un.org/en/story/2014/07/472572-un-widens-its-same-sex-marriage-policy-include-all-legally-married-staff

[14] Heaphy, B. (2012). Same-sex marriage/civil unions. The Blackwell Encyclopedia of Sociology. doi: 10.1002/9781405165518.wbeoss011.pub2

[15] Gerstmann, E. (n.d.). Principles and Practicalities: The Road to Same-Sex Marriage. Same-Sex Marriage and the Constitution, 201–217. doi: 10.1017/9781316795798.010

[16] Hull, K. E. (n.d.). Same-sex marriage timeline. Same-Sex Marriage, xiii-xvi. doi: 10.1017/cbo9780511616266.002

[17] Arvind Narrain, Queer – Despised Sexuality, Law and Social Change 79 (2004)

[18] Ball, C. A. (2014). Same-Sex Marriage before the Supreme Court. Same-Sex Marriage and Children, 111–128. doi: 10.1093/acprof:oso/9780199977871.003.0006

[19] Section 5, Hindu Marriage Act, 1955.

[20] Ruth Vanita, Wedding of Two Souls, 20(2) J. Feminist Stud. Rel. (2004)

[21] Section 4, The Indian Christian Marriage Act 1872

[22] Section 60, The Indian Christian Marriage Act 1872

[23] Special Marriage Act, 1954.

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