As a non-homosexual may seek same-sex marriage, it is not accurate to define an equal marriage as ‘homosexual marriage’ or ‘gay marriage’. The present world is determined to define gay as gay men and lesbians. The terms are ambiguous depending on the perspective of society. Same-sex marriages were prevalent in early and medieval times. Same-sex romantic love and sexual desire were seen from ancient times in the east. The earlier same-sex attraction between men was valued and in the case of women, it was not valued in the same situation. China is a country where men had the privilege to marry youth in elaborate ceremonies. In the Western world, same-sex unions have a long history as these relationships were tolerated and celebrated in many early Western societies which included Greece and ancient Rome. Some native American societies took the form of two-spirit type relationships where some male members of the tribe take the female gender with all responsibilities and continue to lead a life with the female gender. The Azande of Congo as a tribe in Africa, men marry youths for whom they pay up the price to the bride of the father, and this is understood to be of a temporary nature.
Until recently, several places in the world prohibited same-sex couples to marry. For mixed raise couples to marry it took years of debate. In 2001, including both same-sex couples and opposite-sex couples, Holland expanded the definition of marriage which was later followed by Belgium, Ontario (a province in Canada), and many other countries. In the states of Asia, the government conducted debates on the issue of same-sex unions. In 2005 Philippines conducted its first same-sex marriage without recognition from the government. Many countries have found the provision of same-sex marriage to be unconstitutional. To respect same-sex marriage, many countries have taken a step to legalize same-sex marriage in their jurisdictions. In the early 21st century, one of the most polarizing divisive political debates was regarding the legal binding of same-sex marriage. Some countries even prohibited same-sex couples from adopting children. To regard same-sex marriage as a right, the world witnessed growing movements to extend marriages beyond sexual orientation. Social security, taxation, health insurance, and inheritance are some of the benefits which are legally excluded from same-sex couples. At present, the same-sex union is still taboo and major religions disapprove of same-sex marriages.
PERSPECTIVE OF SOCIETY
Same-sex marriages are considered as a non-lasting relationship that is uncommitted and shallow in nature with regards to the pigeonhole thought. One of the main reasons that most individuals oppose same-sex marriages are based on the assumption that lesbians or gays have a choice to choose whom they feel attracted to. The majority believe that if the homosexual individuals chose, they can become heterosexual. However, the reality is that not everyone has the choice to change their attraction. Homosexuality is multi-dimensional. It is not always about sex but it is also about affection and love.
Sex is nearly a reason to express love just like heterosexuals. Being gay or lesbian is a part of a person’s core identity. Relating to the Black Lives Matter situation, here they are treated as Black in a society of whites in a nation of black-haired Asians. We live in a society that considers marriage as an institution between one man and one woman. This belief is a nebulous declaration with no moral pedestal behind itself. There is no real argument to prove this compelling reason. It is more like an expression of prejudice considering the needs of contemporary society. In a society where the murderers and child molesters are allowed to marry and procreate, same-sex couples are considered not capable of raising a child. Before predicting such critics, it should be taken into consideration that the scientific studies have shown that the outcomes of children raise in the homes of lesbian and gay couples are just as good as those raised by straight couples, proving the view a squabble. Most of the religion have a problem recognizing same-sex marriage. However, it is to be noticed that none of the sects or sacred books interpret marriage as the union of two biologically different sexes only.
Some even believe that same-sex marriage threatens the institution of marriage and undermines the sanctity of marriage. Nevertheless, it is questioned as to how can a marriage be threatened when it allows two people to marry. Considering marriage traditionally as a heterosexual institution is morally a weak argument as slavery was also a traditional institution that was abolished during the 19th century. Society has the power to make traditions according to its expediencies. Traditions do not have the power to dominate people's will. It is to be noted that this society is capable of distinguishing proposals that are for the betterment of the country and vice versa. The harsh light of reason and logic shows that the arguments raised traditionally and the real feelings of opponents do not make sense. The argument against same-sex marriage do not hold up to close scrutiny.
The Indian society template homosexuality as a mental disorder even though it is Indian psychiatric society recognized it as a normal variant of human sexuality much like bisexuality and heterosexuality. Remarking Indian history, monuments like The Khajuraho Temples contain several depictions of human sexual activity. The temple is famous for its erotic sculptures. The ancient scripts like Mahabharata had multiple characters like "Shikhandi" who was born as a female but identifies as male and marries a woman. With time due to fewer illustrations, society started considering same-sex individuals as immoral and sinful. The LGBT community fears discrimination from the family and society they live in considers them shameful. In India, the people who belong to this community faced several attacks like beatings, torture, and honor killing. LGBT community people are discriminated and ignored in society. In rural areas, they often are forced to marry the opposite sex or they face rejection from their families.
FUNDAMENTAL RIGHT VIOLATION
Despite the landmark judgment passed on section 377 of the Indian penal code, the LGBTQI community is still not accepted as common people. Right to equality, right to privacy, right against discrimination are some of the rights that are affected. There is no specific law that validates and recognizes same-sex marriage. To bring grievances of LGBTQI by the community in the eyes of law a proper criterion is required.
Article 14 grand equal protection of the law to every citizen in the country disregarding their race, caste, religion, or any form of discrimination. Equal subjection of all persons to law with equal administration is the soul of article 14 of the Indian constitution. It is hard to suppress the fact that the LGBT community are not treated like common men and women who belong to a heterosexual group. The heterosexual group is empowered with the right to recognized marriage. Even though there are couples who suffer impotency and cannot give birth, this fact does not stop them from starting a meaningful life without a child. They go for adoption to augment the family horizon.
The marriage law in India nowhere specifies that the ability or promise to procreate a prerequisite condition for a valid marriage. Therefore, denying the recognition of marriage on such grounds of inability to procreate is arbitrary and irrational. The classification that is unreasonable and arbitrary violates the fundamental right of equality before the law.
The state cannot discriminate any citizen on the grounds of their religion caste, race, place of birth, sex or any other factor. In the judgement of National legal service authority vs union of India and others, it was decided that the people belonging to transgender community is to be recognised as third gender apart from female and male. They are to be provided necessary benefits if they belong to socially or economically backward class. This judgement considers transgender equal to that of a heterosexual men and women. Hence non recognition of the marriage of a homosexual can be considered discrimination on the grounds of violation of Article 15 (1) of the Indian constitution.
All citizens have the right to freedom of speech and expression under Article 19(1)(a) of the Indian constitution. The case of national legal services authority versus union of India and others strongly emphasizes that the right under Article 19(1)(a) includes the right of an individual to express his or her self-identified gender through words, behaviour, action or any other form. This right also gives them the free choice of choosing their life partner with whom they can have a meaningful and fulfilling life. Hence, not recognizing the marriage of homosexual, they are unable to express their sexual identity and orientation through choice of romantic or sexual partner, desire, speech, acknowledgement of relationship, or any other means. Same-sex marriage is to be legalized and safeguarded by the law to ensure safety and provide confidence to the people who are homosexual to are trying to enter into a relationship.
Marriage is a bond of two persons who find freedom with each other in matters related to spirituality intimacy and expression. people belonging to every sexual orientation have commonality in this regard and hence denying this right to choose a life partner is a gross violation of right to life. According to article 21 of the Indian constitution, every person has the right to choose a life partner as per their wish and they can marry if both the parties agree or have consented to the same. The constitution of India guarantees every individual choice of partner in which the term individual can be extended to the LGBT community as well. The denial on the commission of same-sex marriage violates the right to life and personal liberty.
The choices concerning family relationships, child-rearing procreation, and contraception are protected under the constitution. These decisions that concern marriage are considered amongst the most important decisions made by an individual. Since these decisions are given such great significance, violation of matters related to this may contradict the very basic fundamental right to liberty of every individual to enter into a marriage with the individual of their choice. The homosexual community deserves the right to marry along with other rights like adoption, inheritance, and maintenance.
The landmark judgment of N S JOHAR & ORS. V. UOI struck down Sec. 377 of the IPC. As a progress, to expand the rights available to the members of the LGBTQI community new dimensions to this community have to be opened by recognizing the marriage of homosexual individuals under the law. It is high time to apply the principle of transformative constitutionalism. To enhance the right available to the members of the LGBTQI community, the doctrine of progressive realization is to be adopted. The state needs to expand the right to marry to all couples irrespective of their sexual orientation. The LGBTQI community must be given the right to live a completely fulfilling and meaningful life with dignity. If they choose to marry a person, they should be able to equal valid recognized marriage. The constitution should protect such minority groups and support their views to avoid discrimination. The shackles of orthodox must be broken to embrace a progressive law. Laws that legalize the relationship of the LGBTQI community must be enforced and must grand equality before the law and public like the heterosexuals. The need of the era is to bring marriage equality along with other forms of equality to protect the minority from facing injustice. Fundamental rights should be granted to every individual without any discrimination.
By Pooja Lakshmi