Conclusion

After the landmark judgment of N S JOHAR & ORS. V. UOI (Supra), where Sec. 377 of the IPC
was struck down to the extent that it criminalizes consensual sex between two adults of the same
sex, it is the appropriate time to apply the principle of transformative constitutionalism and
doctrine of progressive realization, so that the rights available to the members of the LGBTQI
community can be expanded and given a new dimension by recognizing their marriages under
the law.

Hence irrespective of the sexual orientation the State should expand this right to all couples so
that the members of the LGBTQI community can live a complete, meaningful, and fulfilling life
with dignity by entering into valid and recognized marriages under the protection of the
constitution.

We live in the 21st century and it is the time to break free from shackles of orthodox and
embrace progressive law like the other common law nations. There should be a law for these
people to legalize their relationship and which can protect them from any kind of injustice. They
should be treated as equal as heterosexuals. This is the need of the era to support gender
equality and the fundamental rights of each citizen of our country including homosexuals.

CONCLUSION

On the basis of the whole discussion on the aspect of same sex marriage that is Should it be
legalized or not. This is more of a religious debate then a political one. In which I have given my
arguments in favour of decriminalizing it, I finally conclude by saying that homosexuality is not an
offence, it is just a way of pursuit of happiness, a way to achieve sexual happiness or desire. I
can see absolutely no reason, apart from blind prejudice, which prevents two gay people going
through a civil ceremony which will give them the rights and securities which heterosexual
couples enjoy. Marriage is a sign of commitment and love. If two men or two women want to
show that commitment, how does that destroy or damage the ideals of marriage. In my view, it
clearly demonstrates it. Aren't we living in an age which respects the individual's right to choose
Isn't India supposed to be the land of the free In our society people have branded homosexuals
as queer. Yet homosexuality is not new nor is it against the Indian culture, it has always existed
and with much lesser prosecution, that under Section-377 of the IPC, which is based on British
Offences against the Persons Act.

What should be the right approach to deal with same sex marriages, the issues are quite vast
and complex. However, the desirability and feasibility of such an approach remain to be
ascertained. In any event there is a growing conviction that our present method of criminalizing
the same sex sexual activity neither helps the homosexuals nor protects the society in general.
We thus need to legitimate same sex marriages in order to move forward in the direction of
human rights.

CONCLUSION

Conclusion
A government may define marriage but it cannot tell people whom to love, neither can it
exert exclusive control over marriage nor people’s understanding of marriage.[73]
Sexuality is but one of the many areas where religious and civic authority interact, and
definitions of the purpose of marriage is another.[74]  Societies have resolved the intertwined
issues of sexuality, reproduction, and marriage in myriad ways. Their responses regarding the
morality, desirability, and administrative perquisites of same-sex partnerships have been
equally diverse. Notably, however, by the beginning of the 21st century, most countries opted
for one of only four legal resolutions to these intersecting problems: to ignore same-sex
partnerships, to criminalise them, or decriminalise them, or to grant them a status similar or
equal to that of heterosexual marriage. Most of the countries either choose to ignore them by
describing homosexuality as a mental disorder or decriminalise their existence as India did.
After the judgment that struck down Section 377[75], Guruswamy and Katju met few parents
having homosexual children to know the status quo[76]. Most of the parents were, indeed,
grateful for the Supreme Court’s verdict.[77]  Indeed, the journey ahead is long and arduous,
but young people in India are ambitious and have their entire lives ahead of them. During
Section 377 hearings, many of the petitioners emphasised how this country, India, was as
much theirs as anyone else’s. They wanted the Constitution to reflect their needs and rights in
light of the changing times and that is exactly what happened.
It is shameful that most of the people are not even aware of the third community and their
rights. It was shocking when famous actor Ayushmann Khurrana, who released a  movie
“Shubh Mangal Zyada Savdhan” on a misconception that same-sex marriages are legal in
India. To which he did apologize later but this shows the lack of awareness among people
towards this issue. It may seem a less important issue, relatively, but in a country of almost
1.3 billion people, of which the LGBTQ+ community comprises 7-8%[78] (no wonder many
more who are still scared to come out) of the population, why should the community be
denied  any rights that every fellow human being gets?
The law was changed not the society. The striking of Section 377 only managed to recognise
LGBTQ as a community. It did not consider their right to marry. Non-recognition of their
marriages not only promotes the stigma attached but also deprives them of the rights that
heterosexual couples get such as the right to adoption, maintenance after divorce and
compensation in case of death of the partner at work, etc.
The right to adoption is governed by the Hindu Adoption and Maintenance Act, 1956,
[79] and Central Adoptive Response Authority. Under the Act, same-sex couples cannot
adopt a child unless one of the partners adopts the child as a single parent.[80] However, this
would mean that the other parent does not have any legal rights on the child. Also, a single
male cannot adopt a girl child which restricts the scope for male homosexual couples.
Maintenance is covered under the Protection of Women from Domestic Violence Act,
2005[81]  and Section 125 of the Criminal Procedure Code of India,[82] both of these Acts as
also pointed out by the Supreme Court in Indra Sarma v. V.K.V. Sarma,[83] are gender-
specific and do not cover homosexual partnerships. Similar is the case with the Workmen’s
Compensation Act, 1923[84] , and other Acts involving the benefits of marriages.
With Denmark being the first country to recognise same-sex partnership as a civil union and
Netherland being the first country to officially legalise the union, most parts of  Europe have
successfully provided recognition to same-sex partnership in some or the other way.
[85] Every person is entitled to the same respect, rights, and dignity. Marriage is an inherent
part of personal rights; Justice K.S. Puttaswamy v. Union of India held that “marriage and
family are part of the individual’s sphere”.[86] It is high time that India gives the community
what they deserve and as  Indu Malhotra, J. rightly said, “We owe an apology to the
community”;[87] the apology would only be counted by considering them as a part of the
society and not someone outcast by the society. In a secular country like India recognitions
like civil union, civil partnership or registered partnership will only create chaos which is
why the only feasible way is to amend the existing personal marriage laws.
Current scenario
In a recent PIL[88] filed by Abhijit Iyer Mitra, Gopi Shankar, Gita Thadani and G. Oorvasi; it
is contended that there is no distinction between heterosexual and homosexual marriage
pertaining to the Hindu Marriage Act, 1955.[89] In response to which Solicitor General of
India, Tushar Mehra  said that homosexual marriages were never promoted by  Hindu culture.
Mr Mehta in his arguments used the words “husband” and “wife” many times. He argued that
all the laws related to marriage and related rights mostly use the terms “husband” and “wife”
for instance domestic violence laws use the term ‘husband and his relatives.’ He further
submitted that our legal system, society, and values do not recognise homosexual marriage.
He argued that the laws made deal with husband and wife, in case of gay marriage, who will
be called the wife?
It is very shocking that after two years of the landmark judgment in Navtej Singh
Johar case, issues like these remain. The  Bench that struck off Section 377 quoted Goethe,
“I am what I am so accepting me as I am” but it seems that the battle is going to harder and
longer than expected.
As far as the mention of husband’s and wife’s in-laws are concerned, they could be replaced
by the word “spouse” to avoid the discrepancies that may arise. This will not only include
homosexuals in the laws related to marriage but also make these laws gender-neutral. For
instance, domestic violence laws need to be gender-neutral to protect males as well. The
article provides all the ways in which the current legal system can change to accommodate
the LGBTQ+ community, and also argues that homosexuality has been part of Indian society
for a long time and it was only during the colonial era that it was decriminalised.