Same-sex marriage or the homosexual marriage is the kind of marriage between two individuals of a similar sexual orientation in a civil Or religious ceremony. The practice of marriage between individual of same sex is not a new phenomenon . Homosexual activities either between male or female adults were considered as acts or activities carried out between two consenting adults as purely private affairs in society In the words of Hendrik Hertzberg “, Marriage should be between a spouse and a spouse, not a gender and a gender”. With the advances in principle and examination on marriage and family are inalienably molded with the changing shapes of family over the long haul. The changing idea of society perceived the rights of gay people , however, even in the 21st century separation inside the LGBTQ community is obvious set apart with social bias and segregation. According to Margaret Talbot , “ Social conservatives seem to see a bigger threat to marriage from committed gay couples who want in on it than from straight ones who opt out of it.”
Different legal systems of the world at one time or the other frowned at it and by legislations criminalized it, thereby making it a punishable offence with terms of imprisonment. The concept of same sex marriage was unknown to legal jurisprudence till about the end of the 20th century. It was towards the tail end of the 20th century and the dawn of the 21st century that countries from the different continents of the world predominantly western societies commenced the process of reviewing their legal systems to legalise same-sex union or association.
In India however , the legalization of is far more difficult job then in the Western countries. In an affidavit filed in the Delhi High Court, the Central government said that determination of whether same sex marriage is lawful acknowledged in India comes under powers of the legislature and candidates can't guarantee a central ideal for same sex marriage being perceived under the laws of the country. It further attested that, “The acknowledgment of the establishment of marriage between two people of a similar sexual orientation is neither perceived nor acknowledged in any uncodified individual laws or any systematized legal laws” .
This paper analyses the idea of same sex marriage in the light of the different accessible public, national and international perspective in a view to decide its position in the legitimate system of human rights and law of the land . The paper further inspects the meaning of LGBTQ and the discrimination faced by them and the perspective of society towards homosexual marriage.
LGBTQ – WHO ARE THEY?
The LGBTQ community stands for lesbian, gay, bisexual ,transgender and Queer or Questioning. In the midst of 1980s the term the term gay begun being more extensive to the term LGBTQ community . LGBT is a variation of the underlying of LGBT people group whose utilization has developed generally since the 1990s.
LGBTQ represents any individual who is a non-heterosexual or non-cisgender rather than only to individuals who are lesbian, gay, bi-sexual or transsexual. This term developed as an umbrella term for sexuality and gender identity.
Lesbian – The term lesbian is used for a women who is physically , sentimentally or has passionate fascination is to different women . A few lesbians may like to distinguish as gay or as gay women.
Gay - The term gay is a descriptive word used to portray individuals whose has physical, sentimental, or potentially passionate attractions are to individuals of a similar sex. For e. g. A man having romantic relationship with other men.
Bisexual - An individual who has the ability to frame enduring physical, emotional and additionally attractions to those of a similar sexual orientation or to those of another sex. Individuals may encounter this fascination in varying manners and degrees over their lifetime. Individuals need not have had explicit sexual encounters to be androgynous; indeed, they need not have had any sexual experience whatsoever to distinguish as indiscriminate.
Transgender - An umbrella term for individuals whose sex character and additionally sex articulation varies based on what is commonly connected with the sex they were allocated upon entering the world. Individuals under the transsexual umbrella may depict themselves utilizing at least one of a wide assortment of terms—including transsexual. Numerous transsexual individuals are recommended chemicals by their PCPs to carry their bodies into arrangement with their sexual orientation character. Some go through a medical procedure also. Yet, not all transsexual individuals can or will make those strides, and a transsexual personality isn't needy upon actual appearance or operations.
Queer- Queer is an adjective used by certain individuals, especially more youthful individuals, whose sexual direction isn't only hetero. Normally, for the individuals who recognize as queer , the terms lesbian, gay, and bi-sexual are seen to be excessively restricting as well as full of social meanings they feel don't have any significant bearing to them. A few group may utilize queer, or all the more usually genderqueer, to depict their sex character and additionally sexual orientation articulation. When thought about an pejorative term, queer has been recovered by some LGBT individuals to portray themselves; notwithstanding, it's anything but an all around acknowledged term even inside the LGBT community.
Questioning - Now and then, when the Q is seen toward the finish of LGBT, it can likewise mean questioning . This term portrays somebody who is scrutinizing their sexual direction gender identity.
The protection of LGBTQ community is an important social issue that is recognized by various heterosexual allies . The protection of the rights of the community is a current struggle faced by all the nations. The current challenges of discrimination faced by the gay community has been brought up in the light by the modern era of globalisation. Fights and struggles for the recognition of their civil, political rights has lead to various movements for their upliftment . In many cities today universities and colleges across the world have supported centres for LGBTQ students. The Human Rights Campaign, Lambda Legal, the Empowering Spirits Foundation, and GLAAD advocate for LGBT people on a wide range of issues in the United States. There is also an International Lesbian and Gay Association. In 1947, when the United Kingdom adopted the Universal Declaration of Human Rights (UDHR), LGBT activists clung to its concept of equal, inalienable rights for all people, regardless of their race, gender, or sexual orientation. The declaration does not specifically mention gay rights, but discusses equality and freedom from discrimination.
HISTORICAL PERSPECTIVE OF THE HOMOSEXUAL MARRIAGES IN INDIA
Homosexuality is by and large viewed as an untouchable subject by both Indian common society and the Government. Public conversation of homosexuality in India has been restrained by the way that sexuality in any structure is seldom examined straightforwardly.
Lately, nonetheless, mentalities towards homosexuality have moved marginally. Specifically, there have been more portrayals and conversations of homosexuality in the Indian news media and . The Delhi High Court decriminalized gay intercourse between consenting grown-ups, all through India, where Section 377 of the Indian penal Code 1860 .i e, " Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section." was decreed to disregard the crucial right to life and freedom and the privilege to equity as ensured by the Constitution of India.
The Arthashastra, an old Indian composition on statecraft, specifies a wide assortment of non-vaginal sexual practices which, regardless of whether performed with a man or a lady, were tried to be rebuffed with the most minimal evaluation of fine.
Manusmriti which is one of the acclaimed law code which was trailed by a dominant part of individuals around then. It endorses discipline for the gay demonstrations performed by one or the other man or lady. Despite the fact that this content doesn't favor gay demonstrations it demonstrates the presence of homosexuality around then.
Historically , India has recognized same-sex associations to be a trans-established outsider culture-bound condition and related social issue. Thus, LGBT bunches are working in the foundations for a bit by bit approach, needed to handle every one of the issues and privileges of LGBT residents in India. The past focal points of these gatherings were to rescind Section 377 of the Indian Penal Code and to authorize non-segregation laws.
Navtej Singh Johar vs. Union of India
Section 377 of the IPC sorted consensual sex between same sex individuals as an "unnatural offense" which is "against the order of nature". It recommended a punishment of 10 years imprisonment . The arrangement is a Victorian-time law, which made due into the 21st century. Around 123 nations around the planet have never punished or have decriminalized homosexuality.
Naz Foundation (India) Trust challenged the constitutionality of Article 377 under Article 14, 15, 19 and 21 before the Delhi High Court..
On 6 September 2018, the Supreme court conveyed its consistent decision, announcing parts of the law identifying with consensual sexual demonstrations between adults unconstitutional. This decision overrules the judgement given by SC in Suresh Kumar Koushal v. Naz Foundation in which the court maintained the law.However, different parts of Section 377 identifying with sex with minors, non-consensual sexual demonstrations, and bestiality stay in force.
The. Court in the case of Navtej Singh Johar found that parts of section 377 of IPC is violative of article 14 that is right to equality, and therefore is violative of Constitution of India
The Chief Justice Misra pronounced that the court found "Criminalising carnal intercourse" to be "irrational, arbitrary and manifestly unconstitutional"
Futher the court also held that, “ the choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation".
WHAT IS MARRIAGE?
Marriage is an institution which admits men and women to family life. It is a stable relationship in which a man and a woman are socially permitted to have children implying the rights of sexual relations
.According to H. T. Mazurmdar, “Marriage is a socially sanctioned union of male and female, or a secondary institution devised by society to sanction the union and mating of male and female, for the purposes of : (a) Establishing a household, (b) Entering into sex relations,(c) Procreating, and (d) Providing care to offspring.”
“For a long period of time Hindu marriage rites have been changed accordingly due to the needs and convenience of the people from time to time. It is the relationship between husband and wife. According to Hinduism, this sacrament is one of the most important sacraments out of 16 sacraments in Hinduism. It is a sacred tie that can’t be broken. It is a relationship from birth to birth, it is a bond which continues after rebirth and death. According to Veda, a man is incomplete until he gets married and meets with his partner” “Marriage under Islam is a matrimonial relation and an institution which legalizes the sexual activities between a male and female for the object of procreation of kids, promotion of love, mutual support and creation of families which are considered an essential unit in a society”
SAME SEX MARRIAGE – SOCIETAL PERSPECTIVE
The majority of the world religions have at certain focuses in their chronicles contradicted same-sex marriage for at least one of the accompanying expressed reasons: gay demonstrations abuse natural law or divine goals and are consequently indecent; sections in hallowed writings denounce gay demonstrations; and strict practice perceives just the marriage of one man and one lady as substantial. The foundation of marriage in the public arena is for the most part viewed as stretching out just to male-female connections, albeit most marriage resolutions use impartial language. The developing acknowledgment of homosexuality has been expansive based, and greater parts of the gatherings hold this idea . Be that as it may, , contrasts actually stay in the size of the larger part saying homosexuality ought to be acknowledged by society or nor to be acknowledged by the general public .
If we talk about our country and its cultural propensities , our general public adjudicator gay people and don't comprehend that the vast majority don't purposefully decide to have gay attractions or to have for instance , dark eyes . Some strict associations have communicated their perspectives with regards to same-sex connections. Contentions in favor and in resistance of same-sex marriage are made on strict grounds, which are formed because of strict convention. India being a huge country with various contemplations , the idea to concede to the reason for relationships of the gay people is by a wide margin extremely troublesome and fundamental proclamation . Here , a legitimate marriage is just when a man and a lady gets married and can bear children.
LEGALIZATION OF SAME SEX MARRIAGE
In India, marriages and weddings have a strong religious and cultural
significance as well as social importance. Marriage is considered to be a sacrament and the religious ceremonies are an essential part of the marriage.
This perhaps explains the many instances of lesbian marriages, including performance of religious ceremonies, exchange of garlands in temples or quasi-legal friendship contracts (maitrikarar) All Indian personal laws appear to foresee marriage as a right between a male and a female.Therefore in order to seek legal recognition of same sex marriage amendment of laws is a must. One alternative is to seek the legal recognition of same-sex couples not through marriages but as civil unions or partnerships. Legislations recognising civil unions have been enacted in many states in the United States of America, several Latin American and European countries, Australia and New Zealand. However, only providing the option of civil unions and excluding marriages for same-sex couples is itself discriminatory, since it provides a class of people only an option that possesses an inherently lower status than marriage. “Recognition of same-sex marriages under Hindu personal laws can be obtained by any one of the following approaches: (i) interpreting the existinglaw to permit same-sex marriages, (ii) interpreting that the LGBT community constitutes a separate community, the customs of which permit same-sex marriages, (iii) reading down the Hindu Marriage Act, 1956 (‘Act’) to allow same-sex relationships, on the ground that it would otherwise be rendered unconstitutional, or (iv) amending the Act to permit same-sex relationships.” According to the Special marriage Act , it recognizes the marriage of a male and a female, however the same sex marriage can also be recognized under the SMA if Section 4(c) of the Special Marriage Act is amendment so that it reads that a party, if male, should have attained the age of twenty-one years and if female, should have attained the age of eighteen years and to add a specific provision that same-sex marriages are permitted.
The LGBTQ refers to anyone who is non heterosexual or is non-cisgender instead of exclusively to people who are lesbian, gay, bisexual and transgender . the LGBTQ is not a concept new to Indian society but it is yet marked with societal prejudice and discrimination. With the ongoing struggles and discrimination the community have from time to time organized themselves into support or movements for their civil rights promoting LGBTQ freedoms.
Marriage as a social institution is traditionally a sanction union between a male and a female and therefore same sex marriage in India is seen as something that is harmful and must be opposed. Same-sex marriage is considered to obstruct the natural law and something that opposes God. Homosexual marriages deny a child either a father or a mother and does not create a family but is just a natural sterile union and therefore many consider such a marriage as no marriage at all.
The legalization of homosexual marriages in India is an ongoing battle. According to the central government of India 'one cannot claim the fundamental right for same-sex marriage as it is not recognized under the laws of the land.’ Besides , the task to amendment of personal law of all religion is not an easy job , as any judicial intervention in relation to personal laws will be considered as an interference with religious freedom . Moreover, the government considers the question of if same-sex relationships are to be permitted is to be formalized by way of legal recognition of marriage is a question to be decided by the legislature and not the judiciary . Therefore the most suitable option is legislative amendment to the Special Marriage Act to include same-sex marriages .
Nonetheless , the vigorous protest and opposition by the rigid nature of Indian society is bound to follow and recognition of same-sex marriage in India is cumbersome