IS INDIA READY FOR SAME SEX MARRIAGES?
The Hon’ble Supreme Court of India decriminalized homosexuality in the country two years ago in the landmark case of Navtej Singh Johar v. Union of India. Despite this progressive decision, the Apex Court and the government failed to address specific questions related to homosexual partnerships. One such concern is ‘same-gender marriages. Same-sex marriages are illegal in India. Same-sex marriages are not explicitly recognized by any of the marital laws. A Public Interest Litigation (PIL) was recently filed in the High Court of Delhi, seeking a declaration of the LGBT community’s marriage rights under the Hindu Marriage Act, 1955. The petitioner claims that the Act permits heterosexual and homosexual couples to marry without prejudice. The fact that a marriage must be solemnized between “just” a man and a woman is never specified in Section 5 of the Act, which lays forth the prerequisites of a lawful Hindu marriage. However, under the Act, gay couples are still unable to marry and register. Because the law treats members of the LGBTQ+ community as “individuals” rather than “couples,” homosexual couples are forced to suppress their desire to marry a partner of their choice. The lack of a “stamp of marriage” is one of the main reasons why homosexuality is still not viewed as “natural” in India.
The Union Government, through its Solicitor General, claimed in opposition to the petition that “our (Indian) legal system, society, and values do not recognize same-sex marriages.” “The 2018 judgement simply decriminalises homosexuality or lesbianism, nothing more, nothing less,” he added.
Such slavish adherence to outdated ideas and beliefs, which denies the sacred right to marry the partner of one’s choice, runs counter to the spirit of Article 21 of the Constitution, which guarantees the right to life and personal liberty. Members of the LGBTQ+ community are still viewed as second-class citizens due to the rudimentary attitude of those in authority.
The same-sex marriage debate is more about morals than about the legislation. People strive to draw a distinction between “societal norms” and “individual liberty,” especially in cultures where religion is more prominent. In India, the Supreme Court has already established the rule allowing same-sex marriages in an indirect manner. The Supreme Court of India ruled in 2018 that an adult has the right to marry the person of their choice. The case of Navtej Singh Johar can be interpreted as a tacit acceptance of same-sex marriage. In addition, the High Court of Madras decreed and permitted the marriage under the Act in 2019.
However, the situation is unclear because different High Courts have taken opposing positions on the topic. For example, three months following the Madras High Court decision, the High Court of Delhi sought a revision to the Act to include same-sex marriages in its scope.
However, the Government’s response to the instant PIL filed in the Delhi High Court, in some way or another, reveals its unwillingness to give same-sex weddings statutory effect. The ‘right to marry’ is recognized as a universal right in the Human Rights Charter. It is neither too difficult nor unreasonable to seek to extend this privilege to homosexual couples as well.
Why can’t the country’s law recognize their marriage if it can recognize “love of two souls irrespective of gender”? Love is what gives life purpose. The right to love is the right that distinguishes us as human beings. If this love is not allowed to be tied together in the knot of marriage, it will always be incomplete, and society will never accept it.
By: Anamika Jha@Lexcliq
