SAME-SEX MARRIAGE: ISSUES AND CHALLENGES By- Madhvi Patidar@lexcliq

I,INTRODUCTION

Marriage is a socially and ritually recognised institution, traditionally between a man and a woman. Marriage is an integral part of every person’s life. It is through marriage that the human race has propagated future generations. Marriage is the most important institution of human society.

It is a universal phenomenon and has been the backbone of human civilisation.  We can say that the Marriage is as old as the institution of the family. Both these institutions are vital for the society.

Edward Westermark says “Marriage is a relation of one or more men to one or more women which is recognised by custom or law and involves certain rights and duties both in the case of the parties entering the union and in the case of the children born of it.

 

II.RIGHT TO MARRY

Right to marriage is provided under human right charter that to under the heading of” Right to have family”. In Indian Constitution this right not expressly mentions. But it is interpreted under Art 21 Right to Marry is universal right. It is available to all persons but whether it includes same sex marriage.

Marriage right is recognised at international level but in India there is no special law for marriage right. Marriage right is mentioned under various covenant but it does not include person of same sex marriage. Indian constitution provides for right to marry but it is not fundamental right.

In a landmark judgment, the Supreme Court viewed the right to marry as a component of right to life under Art 21 of Indian Constitution the court observed that: “This is a free and democratic country, and once a person becomes a major, he or she can marry whosoever he/she likes.

If the parents of the boy or girl do not approve of such inter-caste marriage the maximum, they can do is that they can cut off social relations with the son or daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste marriage”. Both the parents in the case were adults and so free to marry of their choice. ’There is no bar to an inter-caste marriage under Hindu marriage Act or any other law’.

 

III.LAW AND HOMOSEXUALITY IN INDIA

The last century witnessed major changes in the conception of homosexuality. Since 1974, homosexuality ceased to be considered an abnormal behaviour and was removed from the classification of mental disorder. It was also decriminalized in different countries. Since then, various states across the globe enacted anti-discriminatory or equal opportunity laws and policies to protect the rights of gays and lesbians.

In 1994, South Africa became the first nation to constitutionally safeguard the rights of lesbians and gays. Canada, France, Luxembourg, Holland, Slovenia, Spain, Norway, Denmark, Sweden and New Zealand also have similar laws.

In India, so far, no such progressive changes have taken place and the homosexuals remain victims of violence in different forms supported by the state and society. There is no explicit mention of homosexuality or homophilic in any of the statute books of India. A person cannot be prosecuted for being a homosexual or homophilic. But the sexual act of sodomy is a criminal offence. The major provisions of criminalisation of same-sex acts if found in Section 377 of the Indian Penal Code (IPC) of 1860.

A human rights activist. Group ABVA filed a Public Interest Litigation in the Delhi High Court. The petition challenges the constitutional validity of Sec. 377of IPC.

The petition urges that Sec. 377 is obsolete and must be struck down as being unconstitutional on the grounds that Right for Privacy is part and parcel of the Fundamental Rights of life and liberty under Article 21 of the constitution and recognised by the 1948 International Convention on Human Rights; Sec. 377 is a violation of Article 14 of the constitution since it discriminates persons on the basis of their sexual orientation; having been enacted in 1860, Sec. 377 is archaic, absurd and implemented by the British in all its colonies, including India, but now been repealed in England, the country of origin. The point of argument in this case is more from asexual health perspective and less from the gay right perspective.

 

IV.ISSUES & CHALLENGES OF SAME SEX MARRIAGES

The issue of homosexual conduct to this fore in recent legal and political debate for three main reasons, which are as follows:

(i) Liberalisation of the law (in the UK, by the Sexual Offences Act, 1967 as amended in 2000 and some other countries by a similar legislation) has brought with it a change in social attitudes, so that the stigma attached to the homosexuality has to a greater extent disappeared.

(ii) Campaigns for lesbian and gay rights especially in the US have taken on an increasingly radical character, arguing for an end to all forms of discrimination against homosexuality, and even for the legalisation of same sex marriages.

(iii) The outbreak of HIV/AIDS which has been spread in the western countries to a great extent by homosexual activity between males, has led to accusations and counter-accusations, often of a bitter kind on Spain, Belgium and the Netherlands, as well as Canada in allowing same sex marriages.

 

Apart from the harsh legal scenario, homosexuals face social stigma as well. Same sex marriages are still unimaginable as any instance of sexual relations between a couple of the same sex draws hatred and disgust. There is an entrenched system of dowry in the Indian culture to protect which the system of same sex marriages is discouraged.

If both parties are male, or, if both parties are females, who would pay dowry to whom will be a big question. Moreover, same sex relations are considered to be unnatural or against the course of nature. The Indian society is steeped in tradition and this reflects on the legal system as regards inter-personal relationships. Intimacy of any sort is not approved of unless it is legitimized in the form of marriage where socially approved sexual access takes place.

The social order in our Country is religion based which views procreation as an obligation for the execution of various religious ceremonies.

Additionally, our society is very community oriented and individualism is not encouraged in the least, any expression of homosexuality is seen as an attempt to renounce tradition and promote individualism, thereby posing a threat to the order in Indian society.

It is opined that if homosexual marriages are legalized it will destroy the concept of a traditional family and the sanctity of marriage will be lost. It must not be forgotten that the Indian society is patriarchal in nature and the fact that certain women and men have different choices, which is not sanctioned by the ‘order’, frightens them in a way.

V.CONCLUSION

The universal law of Human Rights states that social norms, tradition, custom or culture cannot be used to curb a person from asserting his fundamental and constitutional rights. If we were to accept the justification, given to us by cultural views, public policy and societal values, which are used to restrict a person’s right then there would have been no progressive legislation enacted in our Country. Sati, dowry, child marriage and infanticides are practices derived from cultural belief, but the Government still took steps to prevent them.

On the basis of the whole discussion on the aspect of same sex marriage that is should it be legalized or not. This is more of a religious debate then a political one. Homosexuality is not an offence, it is just a way of pursuit of happiness, a way to achieve sexual happiness or desire. There is absolutely no reason, apart from blind prejudice, which prevents two gay people going through a civil ceremony which will give them the rights and securities which heterosexual couples enjoy.

Aren’t we living in an age which respects the individual’s right to choose Isn’t India supposed to be the land of the free in our society people have branded homosexuals as queer? Yet homosexuality is not new nor is it against the Indian culture, it has always existed and with much lesser prosecution, that under Section-377 of the IPC, which is based on British Offences against the Persons Act.

What should be the right approach to deal with same sex marriages, the issues are quite vast and complex. However, the desirability and feasibility of such an approach remain to be ascertained.

In any event there is a growing conviction that our present method of criminalizing the same sex sexual activity neither helps the homosexuals nor protects the society in general. We thus need to legitimate same sex marriages in order to move forward in the direction of human rights.

 

 

 

References-

  1. Puja Mondal, “Essay on Marriage: Meaning, Functions and Forms,” available at http://www.yourarticlelibrary.com/marriage/essay-on-marriage-meaning-functions-and-forms/8592
  2. “Homosexuality In India- The Invisible Conflict,”, http://www.delhihighcourt.nic.in/library/articles/legal%20education/Homosexuality%20in%20India%20-%20The%20invisible%20conflict.pdf
  3. “Same Sex Marriage: Is It The Time For Legal Recognition,”, http://www.legalserviceindia.com/articles/semar.htm
  4. The Hindu Archives, http://www.thehindu.com/

 

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