Why same-sex marriages should be legalized in India?

"Marriage is a union of spirits, and the spirit is not male or female" (Ruth, 2006)

Marriage is everywhere, in every country, in every religion across the world. India itself has an
ocean of cultural diversity, major chunk of it being marriage (Nussbaum, 2009). People marry
because of various reasons, but absence of those reasons don’t preclude the right to marry, why
make sex of two consenting individuals a criteria for prohibition ?

Clearing the air

A day after the Supreme Court abolished section 377 of the Indian Penal Code, the LGBTQ
community said that the next step in the legal fight would be for civil rights such as same sex
marriage, inheritance of property, joint adoption of children etc. If equality of LGBTQ community
is now a fundamental right, then why shouldn’t right to marry also be a part of this ? (Raja, 2017)

Popular belief does not notice that there is no legal provision for all the rights mentioned earlier,
the decriminalization of section 377 of the Indian Penal Code is assumed by the society s enough
for them to live. The Special Marriage Act of 1954 accommodates for citizens of India and all
Indian nationals in foreign countries, irrespective of the religion or faith, to marry, yet there is no
provision for same-sex couples to marry. Several petitions on marriage remain pending in courts
of law. (Das, 2018)

Throughout this article I have tried to validate my stand for legalization of same-sex marriages
through the upcoming arguments, acknowledging the reasons cited by people supporting only
heterosexual propagandas. Homosexuality has been a controversial topic in terms of politics and
law as it has been in rest of the world. It can be treated no differently than heterosexuality as laid
out by the law itself.
Violation of Right to Privacy and Freedom of Choice

The right to privacy and the protection of sexual orientation is a fundamental right of every
individual which is guaranteed by Articles 14, 15 and 21 of the Constitution of India. According
to this, “The intersection between one’s mental integrity and privacy entitles the individual to
freedom of thought, the freedom to believe in what is right and the freedom of self-determination.
(Banerjie, 2017) When these guarantees intersect with gender, they create a private space which
protects all those elements which are crucial to gender identity. The family, marriage, procreation
and sexual orientation are all integral to the dignity of the individual. It is an individual’s choice
as to who enters his house, how he lives and in what relationship. The privacy of the home must
protect the family, marriage, procreation and sexual orientation, which are all important aspects of
dignity”. (1994 SCC (6) 632) Privacy is something that embodies the capacity of each person to make
choices and to take decisions whether intimate or personal.

Freedom of choice is another fundamental right of every individual where he/she has all the
opportunities to perform an action. When a person marries someone of same sex and it neither
harms anyone nor them, then he/she has the liberty to practice it. So, every individual has the
freedom of choosing his/her life partner.

These two rights clearly state that every individual irrespective of his caste, creed, gender, religion,
etc. has the liberty to take any decisions and make choices even when it is related to marriage.

Violence & Discrimination in various aspects

The sexual orientation of LGBTQ community does not equate with the mainstream society due to
which they face many problems and thus do not declare their love for someone. The LGBTQ
community faces violence and discrimination for the simple reason that their sexual orientation
and preference does not accord with the mainstream society. The society is not ready to accept
them and therefore, they ignore these people in any way possible. Due to this, the LGBTQ people
face many problems. They go through harassment, bullying and discrimination – at schools,
workplaces and other public spaces. They are not given equal opportunities hence remain
unemployed and also lack healthcare facilities at hospitals. They go through emotional and
financial trauma and are often not able to come out of this state. They are looked down upon all
the time and therefore, do not come out of the closet and do not declare their love for someone.
The lesbian women are subjected to rapes which are often committed by their own family
members. The LGBTQ+ community members are sometimes accepted by their families upon the
condition that to behave like heterosexuals. Such hostile and inhumane behavior towards any
individual breaks them as a person and result in suicide attempts.

One of the incidents including suicide occurred in June 2018, in Ahmedabad, where two young
women who had left their husbands to live together, committed suicide along with the three year
old daughter of one of them. The two women and the child jumped into the Sabarmati River.
Before attempting the suicide, the women left a message written with a red lipstick on the riverfront
parapet, ‘We have left this world to live with each other. The world did not allow us to stay
together’. One of the Ahmedabad woman’s husband had also committed suicide because he was
not able to handle the stigma of his wife’s sexual inclination ( TOI, 2018).

According to the conservatives of India, homosexuality is not, was not a part of the “Indian” culture
and is an outcome of the western influence. On the contrary, the hatred and rejection of
homosexuality was instilled among the Indians by the British rule in the 1800s. Christian
missionaries in medieval times believed homosexual relationships were sinful as the procreation
of two people coming together was giving birth which is inevitably absent in homosexual
relationships ( Tripathi, 2018 ).

Changing the mindset of the people would require a long time span. Hence, it’s high time that
same sex marriages should be legalized in India in order to transform the social stigma and make
it unconventional to conventional.

Existence of homosexuality in the Indian culture

As mentioned earlier, general belief is that homosexuality is against Indian culture and values, yet
it does not go in line with the facts because homosexuality is deeply embedded in our ancient
culture.

The Vedas are considered to be the earliest literary record of Indo-Aryan civilization which were
written in India between about 1500 and 1000 BCE. The Vedas are considered to be the most
sacred scriptures of India. Homosexuality is not mentioned in connection with the Vedas but there
are some interesting references to homo-eroticism. One is from the Kaushitaki Brahmana
Upanishad 2:4 of the Rig Veda –

a) “Now then the intense longing of love stimulated by the gods. When one (m) desires to be
loved (priya) by a man or a woman, he shall offer to the above mentioned gods oblations
in the sacred fire”.
b) Another reference is from the Shatapatha Brahmana (2:4:4: 19): in which Mitra – the god
of the day is said to implant his seed in Varuna the god of the night on the New Moon day.

The Kama Sutra is also an ancient Indian Hindu text which was composed between 400 BCE and
200 CE. It is widely considered to be the standard work on sexual behavior in Sanskrit literature.
Some of the texts which clearly relate to marriage of homosexuals are–

 “To these must be added the third nature (tritiya prakrti), the inverts or the homosexuals
who have particular practices and constitute a fifth category of sexual partners.”
 1:27 Chapter 9 of the Kama Sutra is all about oral sex and activities between men.
 Vatsyayana also mentions that some people marry (parigraha) members of their own sex
and live together either openly or in secret.

These evidences clearly show that homosexuality exists in our Indian Culture and that there is no
harm if homosexuals marry each other.

“But the fact that same sex marriage is still an issue is insane. Thinking love knows a sex is
ridiculous.” – Garret Dillahunt (American Actor).

Issue of infertility

As the rules of nature go, homosexual relationships cannot bear children. Adoption would imply
unmeasurable happiness to such couple wanting to have families. 4% of India’s population
comprises of orphans, this rounds up to approximately twenty million children without parents.
Reports show roughly only 10% of the orphan population has a home to live (Kaushik, 2015). This
provides solution to homosexual couples to lead happy family lives but only if the government
wishes to see them happy by providing lawful rights.
Closure

Justice Indu Malhotra’s statement on the verdict for decriminalization of 377 said that “History
owes an apology to the LGBT community for their sufferings.” This would act as an eye-opener
for the public that believes homosexuality is a disease or choice within one’s reach. This verdict
shall come as a reprimand to many, including the controversial “yoga guru” who is a vital member
to the ruling Hindu nationalist Bharatiya Janata Party – who claims that yoga can “cure”
homosexuality. (Tripathi, 2018)

Abolishing the 1862 law of criminalizing gay sex is a huge victory but the LGBTQ community
would still face many challenges. One of them is the fight for legalizing same sex marriages in
India. India has grown over centuries and is developing each passing day but it must also ensure
that groups like LGBT always remain a part of the Indian society. They must be given equal rights
and their interests must be protected. By legalizing same sex marriages in India, equality, dignity
and freedom for them would be ensured and these social issues would be solved up to some extent.
Most importantly, it would vanish the idea of discrimination and would uphold the law that all
Indians are equal.

The discussion would attract infinite opinions and suggestions supported by various arguments,
we need to analyze which opinion or side is important for the society's development.

References

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