Same Sex Marriage in India

1 Dec 2022  Read 1657 Views

India, a democratic country, has recently but incompletely recognised the worth of LGBTQIA+ community. With films like Shubh Mangal Zyada Savdhaan, Laxmi, Chandigarh Kare Ashiqui, and others, our Indian cinema has also made an effort to raise public awareness. One major concern brought up by the LGBTQ population is that it is still seen as taboo in modern countries. LGBTQ persons are still not treated equally in India and several other nations.

In this article, we will discuss the status of the LGBTQ community in India, their rights and their legality in other countries as well… we’ll also look into the cases brought before the Indian courts seeking equality in society.

Is same sex marriage legal in India?

The Indian Constitution does not expressly acknowledge the right to marriage as a fundamental or constitutional right.

Although several statutory laws govern marriage, its recognition as a fundamental right only came about because of the Supreme Court judgments. According to Article 141 of the Constitution, this proclamation of law is obligatory in all courts in India.

  1. Shafin Jahan v. Asokan K.M. and others (2018): Marriage as a Fundamental Right

The SC stated that the right to marry a partner of one's own choice is a fundamental aspect of Article 21 of the Constitution, citing both Puttaswamy v. Union of India and Article 16 of the UDHR.

Article 16(2) of the Indian Constitution states that discrimination cannot be based only on a person's race, sex, caste, ancestry, place of birth, or domicile.

The freedom that the Constitution protects as a fundamental right, which is each person's right to make decisions that are significant to their pursuit of happiness, is inextricably linked to the right to marry. Questions of faith and belief, such as whether to believe, are on the basis of constitutional liberty.

  1. Navjet Singh Johar and ors v. Union of India in 2018 argued that the LGBTQ community was entitled to all constitutional rights.

LGBTQ people "are entitled, as all other citizens, to the full spectrum of fundamental rights, including the freedoms protected by the Constitution," as well as to equal citizenship and "equal protection of the law," according to the Supreme Court.

Same sex marriage in Special Marriage Act

Supriyo @ Supriya Chakraborty & Anr. vs. Union of India 2022

In reply to a petition filed by 2 gay couples pursuing recognition of same-sex marriage under the Special Marriage Act of 1954, the SC has served notice to the Indian government's central government and attorney general.

A two-judge panel led by CJI D Y Chandrachud issued the notice as a consequence of numerous petitions. Same-sex marriage is not recognised, which amounts to discrimination that undermines the self-satisfaction and dignity of LGBTQ+ couples.

The couple argued that the Special Marriage Act is ultra vires the Constitution and it discriminates between opposite-sex couples and same-sex couples, dissenting same-sex couples’ social recognition in society and their legal rights. 

Any marriage between two people should be subject to the Special Marriage Act of 1954, regardless of their sexual orientation or gender identity. Otherwise, the Act should be deemed to be in violating the fundamental rights to a life of dignity and equality since "it does not provide for the solemnisation of marriage between same-sex couples."

The Act should provide same-sex couples the same level of protection as it does for inter-caste and inter-religious unions. By simply decriminalising homosexuality, not enough progress has been made; LGBTQ+ people need equality in all areas of life, including the job, the family, and public spaces.

Currently, 7% to 8% of the nation's population identifies as LGBTQ+.

Status of Same sex Marriage in other countries

Out of 195 countries, only 30 countries provide legal recognition for the marriage of same-sex couples. They are Northern Ireland, Ecuador, Taiwan, Austria, Australia, Malta, Germany, Columbia, United States, Greenland, Ireland, Finland, Luxembourg, Scotland, England and Wales, Brazil, France, New Zealand, Uruguay, Denmark, Argentina, Portugal, Iceland, Sweden, Norway, South Africa, Spain, Canada, Belgium, and The Netherlands.

LGBTQ Rights in India

Before the Decriminalisation of S. 377

After the Decriminalisation of S.377

Any act against the order of nature is a criminal act.

No such offence exists as the SC struck down S. 377

Any sexual act between Man and Man, woman and woman, or human being and animal are criminal act.

The offence is decriminalised but not legalised in India.

Punishment – 10 years of imprisonment with a fine extendable to life imprisonment.

No Punishment

Impact of Decriminalizing S.377

  • Social impact: They live in a society with the same respect, freedom, and dignity as those of other genders.

  • Impact on education: They can accept formal education, regular schooling, and employment as normal.

  • Personal impact: They live in a calm environment and are free to choose their partners as well.

  • Impact on the world: They can also participate in national service, and their contributions to the nation benefit emerging nations.

  • This limited freedom fosters their capacity to develop, learn, and apply to realise their aspirations and intended objectives.

Conclusion

The LGBTQIA+ community needs an anti-discrimination law that gives them the freedom to forge fulfilling relationships and lives regardless of their gender identity or sexual orientation and places the responsibility for change on the state and society rather than the person.

There is no question that same-sex couples planning to get married must be granted the fundamental right to marry someone of their choice once people of the LGBTQ community "are entitled to the full spectrum of constitutional rights." More than a dozen nations have made same sex unions lawful.

About the Author: Gurpreet Kaur Dutta | 63 Post(s)

A legal content writer who pursued BBA-LL.B.(H) from Amity University Chhattisgarh. She has a keen interest in corporate and IPR sectors. 

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