The Undetermined Status Of Same Sex Marriage In India


The ancient Indian scriptures defines marriage as a ‘union of two souls’ and the same scriptures interprets that a soul has no gender. But, the statute which derives its source from these scriptures still doesn’t recognize same-sex marriage. Unfortunately, the law of the land sees the people of the LGBTQ+ community only as ‘individuals’ and not as ‘couples’, due to which homosexual partners have to quash their feelings of getting married to a partner of their choice.

Not providing this ‘stamp of marriage’ to the LGBTQ+ community is the major reason why such couples are still not respected in our society. It can be said it is exactly how live-in relationships turn from ‘anti-social’ to ‘social’ when the couple gets married. Marriage is considered as a sacrosanct institution in India and depriving the LGBTQ+ community with the right to marry only on the basis of gender identity is absolutely discriminatory and against the essence of the Constitution.

Traces of homosexuality in ancient India-

Same-sex marriages are not a new concept in India. It is existing since ancient India. The history of homosexuality can be traced to the Rig-Veda (1500 BC). The ‘Kamasutra’ also explains the Harems of young boys kept by Hindu aristocrats and Muslim Nawabs. The temples of Khajuraho, Sun Temple, Ajanta & Ellora caves are stauch proof of existence of homosexuality in ancient India.

Some of the other historical instaces mentioned by Proff. Harbans Mukhia (JNU) in his historical researches:

"Alauddin Khalji's son, Mubarak, was known to be in a relationship with one of the noble men in his court," he adds. Khalji ruled the Delhi sultanate between 1296 and 1316.

Babur, who founded the Mughal dynasty which ruled most of what is now India and Pakistan in the 16th and 17th Centuries, also wrote about his love for men. "He wrote, without any sense of embarrassment, that he was in love with a boy named Baburi. There was no disapproval about his writing during his time or even after that," Prof Mukhia adds.

Rise of Britishers in India:

Historian Harbans Mukhia said “one has to know India's history to understand why the British made gay sex illegal”. He explained that the British brought their rules to India also including Section 377 which banned homosexuality & made it a criminal act. This law was enforced by them but it didn't go with India's attitude toward homosexuality.

Historian Rana Safvi said “Love was celebrated in India in every form. Whether ancient or medieval India, fluid sexuality was present in the society. One can see the depictions of homosexuality in the temples of Khajuraho and Mughal chronicles”. The temple complex of Khajuraho was built Chandela dynasty. The erotic sculptures in the temple depict homosexuality. A similar temple art is also seen in the 13th-Century Sun Temple in Konark and Buddhist monastic caves at Ajanta and Ellora.

Mythologist Devdutt Patnaik has also explained the presence of homosexuality in Hinduism. “The term homosexuality and the laws prohibiting 'unnatural' sex were imposed across the world through imperial might. Though they exerted a powerful influence on subsequent attitudes, they were neither universal nor timeless. They were - it must be kept in mind - products of minds.”

Prof Mukhia also said "There was some disproval for homosexuality but LGBT people were not ostracised. The society was tolerant towards them and nobody was hounded for being a homosexual”.

Historians believe that India's conservative outlook about homosexuality started with the British Raj and became stronger after independence.

Prof Mukhia adds that the Section 377 remained in place event after India's independence in 1947 largely because of "our ignorance of history and politicians' apathy".

Religious Barriers:

The debate over same-sex marriages is more on morality less on law. People try to put a line of distinction between the ‘societal rules’ and ‘individual freedom’ especially in the culture where religion enjoys superiority.

We must never forget that it was the blind inclination towards cultural values, and traditions of the noble men in the Court of Dhritrashtra has lead to the drastic war of Mahabharata. Just like still water starts to stink with time; still rituals, customs, traditions and beliefs start to stink the society. Change is the law nature. This is the right time to introduce the change in India and introduce same sex marriages.

Human Rights Charter [Article 16] says that the ‘right to marry’ is a universal right. And elongating this right to extend to homosexual couples as well is neither complicated nor unjust. Depriving the LGBTQ+ community for their own choice is just like saying ‘you are different from everyone and there is no one to marry you in this country; forget about your beloved’.

Scrapping of 377:

Around three years back, Supreme Court of India in its historical judgement of Navtej Singh Johar v. Union of India decriminalised homosexuality in the country. Despite such progressive judgement, the question of same sex marriage remain incidental to the homosexual relationships remained unaddressed by both the Apex Court and the Government. None of the marital laws yet expressly recognise same-sex marriages.

Right to marry:

In March 2018, the Supreme Court of India held that an adult has a fundamental right to marry a person of their own choice. The collective reading of this case with Navtej Singh Johar (September 2018) case can be taken as a recognition of same-sex marriage.

However, it lacks clarity as different High Courts have taken different views on the issue. For example the High Court of Delhi, after three months of the Madras High Court verdict that seek to make amendment in the Act to include same-sex marriages within its ambit. The Court said that the matter is one ‘parliament kind’ and not of the ‘court kind’.

Depriving a particular community from marrying may be detrimental to their mental well being:

Supreme Court while interpreting Article 21 of the Constitution in light of Article 12 of the International Covenant on Economic, Social and Cultural Rights, held that the Right to Health was an integral component of one’s Right to life. The right to health contains both freedom and entitlements. The freedoms include the right to control one’s health and body, including sexual reproductive freedom.

It has been accorded recognition and the right of choice to attributes which are an inherent, integral and immutable part of an individual’s personality and can on the strength of growing medical and psychiatric knowledge be rightly regarded as but a natural benign variant of the human experience. The criminalisation of § 377 & now not allowing them to marry impacts homosexual men at a deep level and restricts their right to dignity, personhood and identity, privacy and equality. While the privacy of heterosexual relations, especially marriage is clothed in legitimacy, homosexual relations are subjected to societal disapproval and scrutiny.

Governments’s View On Same-Sex Marriage:

A Public Interest Litigation was filed in the High Court of Delhi seeking declaration to the marriage rights of the gay community under the Hindu Marriage Act, 1955. The petitioner contented that the Act allows marriages between “two Hindus” without any discrimination between heterosexual & homosexual couples and that it is nowhere mentioned under Section 5 of the Act, laying conditions of a valid Hindu marriage, that a marriage should be solemnised between a man and a woman only. But still, gay couples are deprived from marrying and getting registered the same under the Act.

Other countries around the world have already legalised same-sex marriages. The world is heading towards progressive LGBTQ+ rights, but the government of India is still not ready to leave the clutches of this orthodoxy and conservatism, even after the 2018 verdict.

To oppose this petition, the Union Government through its Solicitor General said that “Our (Indian) legal system, society, and values do not recognise same-sex marriages.” He then contended that “the 2018 judgement merely decriminalises homosexuality or lesbianism, nothing more nothing less.”

Such fixed adherence to the old values and principles, depriving the sacrosanct right to get married to a partner of one’s choice, is strictly against the essense of right to life and personal liberty guaranteed by the Constitution under Article 21. It is for this narrow rudimentary mind set of those in power, that members of the LGBTQ+ community are still treated as a second class of citizens in India.

But, Lack of recognition does not mean that same-sex marriages have yet not happened in India. In 1987, a marriage happened where two policewomen married each other with the Hindu rituals. The denial of the right to marry the partner of one’s choice is absolutely unjust and unfair.

The oppositions claim that allowing same sex marriage will be detrimental to the institution of marriage and that it would spread diseases like HIV & AIDS. These stigma, discrimination and criminalisation faced by sexes who have sex with same sex are major barriers to the movement for universal access to HIV prevention, treatment, care and support. With almost 2.39million people affected by AIDS in India. Barring homosexual marriage practices cannot be considered as a reasonable means or proportionate measure to achieve the spread of AIDS/HIV since no link has been shown between the continued criminalisation(when Section 377 was not scrapped) and the effective control of the spread of the HIV/AIDS virus.