LADY SHREE RAM COLLEGE FOR WOMEN

YOUR LAWS YOUR RIGHTS

RESEARCH PAPER

TOPIC: CRITICAL ANALYSIS OF PETITIONS ON SAME SEX LAW

IN INDIA

SUBMITTED TO: Mr. T Kannan

SUBMITTED BY: Komal Kumari (21/53)

My thoughts on gay marriage are that everyone has the right to love and be loved, and that’s
the position I take.
—Nick Jonas

INTRODUCTION:

This paper discusses the possibility of same-sex marriages in India, i.e., marriage between
two individuals of the same sex . Such a relationship would include members of the Lesbian,
Gay, Bisexual, Transgender, and Queer (‘LGBTQ’) community. There currently exists no
legal framework that recognises intimate relationships between individuals of the same sex in
India. Marriage laws in India are governed by personal laws of Hindus, Muslims, and
Christians, as well as the secular Special Marriage Act, 19552 (‘SMA’), all of which
recognise only heterosexual unions between a man and woman. Members of the LGBTQ
community are, thus, deprived of the state benefits provided to married couples, as well as the
social and legal recognition of their union. This paper examines how such non-existence of
the legal recognition of same-sex marriage is discriminatory against LGBTQ persons, and in
violation of the fundamental rights under the Constitution. Since the legal possibility of same-
sex marriages is highly contingent upon its social and legal standing, arguments made by
both the proponents and opponents of same-sex marriage with reference to social morality
and religion are discussed to gauge the importance of legally recognising such a union. The
Supreme Court’s judgment in Navtej Singh Johar v/s Union of India (‘Johar’) is relied upon
to establish the significance of constitutional morality in obtaining fundamental rights for the
LGBTQ community. It is concluded that, upon recognising the importance of the legal
recognition of same-sex relationships for both social and civil rights of LGBTQ individuals,
there is a high possibility of legalising same-sex marriages in India.

This research paper seeks to answer the following questions:

1. Why is there demand for legalization of same sex marriage law in India?
2. What is the response of society and government against these pleas?

Hypothesis: Growing awareness about the LGBTQ + community rights and an increase in
demand for the legalization of same sex marriage law is an important phenomenon to note
that can lead the Parliament and judiciary to take long-pending necessary steps towards such
a legislation.

Key words: same sex marriage, LGBTQ+ community, petition, equality and human rights.
SAME SEX MARRIAGE LAW

Same-sex marriage is the marriage of two people of the same sex. Even though
homosexuality is legal in many countries, the idea of same sex marriage is still anathema to
them including India. As of 2023, marriage between same-sex couples is decriminalised in
133 countries but legally performed and recognized only in 33 countries, constituting some
1.35 billion people (17% of the world's
population). The first law providing (Team
for marriage equality between same-sex 2023)
and opposite-sex couples was passed in
the continental Netherlands in 2000 and
took effect on 1 April 2001. (Team
2023)

In India, acceptance of same-sex relationships and marriages have generally been low among
the public. In a survey conducted by the Pew Research Center across 34 countries between
May 13 and October 2, 2019, only 37% of respondents from India said that homosexuality
should be accepted by society. (Team 2023) In India same-sex couples have attained limited
rights and benefits as a live-in couple (anagolous to cohabitation) as per a Supreme Court of
India judgement in August 2022, though India does not recognise same-sex marriage or civil
unions. The most prominent supporters of same-sex marriage are the world’s major medical
and scientific communities, along with human rights and civil rights organisations, while its
most prominent opponents are religious fundamentalist groups.

IS SAME SEX MARRIAGE—A NEW CONCEPT IN INDIA?

The same sex marriage is not a new concept in India. The history of homosexuality can be
traced to the Rig-Veda, which dates around 1500 BC. The same-sex relations have not always
been looked down upon as their recognition is still prevalently seen in the ancient
monuments, texts and sculptures on caves or temples. For e.g.

1. The Kamasutra uses the term ‘tritiya-prakriti’ to identify third gender, define men with
homosexual desires and describe their practices in great detail. It describes Lesbian,
bisexuals, transgender and inter sex people.
2. The famous Khajaruo temples, which is famous for their erotic depictions contain
scriptures having documented same sex relationships.

3. Hinduism acknowledges a third gender; there are certain characters in

the Mahabharata who, according to some versions of the epic, change genders, such
as Shikhandi, who is sometimes said to be born as a female but identifies as male and
eventually marries a woman. (Babar 2019)

Even, in Hinduism, traditionally such relations were recognized as totally natural and even
joyful. Although, there are scriptures such as Nāradasmṛti and the Sushruta Samhita, from
ancient India relating to dharma and medicine, respectively, that declares homosexuality to be
"incurable" and forbade homosexuality. (Goel 2019)

However, with the advent of Brahmanism and later British Colonialism, these experiences
stated to be seen as a matter of hatred. The Aryan invasion began to supress homosexuality as
they kindled the dominance of patriarchy. (Sharma, The Unanswered Question of Same-Sex
Marriages in India 2020)

Scientific aspect:

With the advent of medical research in this field, it was found out that homosexuality is a
common natural character in a person where in he will be sexually attracted to the person of
same gender. It is not a sin or a crime. With the awareness of human rights and modern
thinking, the LGBTQI +community got the knowledge that satisfactory personal life, privacy,
dignity are their basic right. They therefore started campaigning for their rights. (Babar 2019)

Here I would like to quote US District Judge John Heyburn :

"Sometimes, by upholding equal rights for a few, courts necessarily must require others to
forebear some prior conduct or restrain some personal instinct. Here, that would not seem to
be the case. Assuring equal protection for same-sex couples does not diminish the freedom of
others to any degree. Thus, same-sex couples' right to marry seems to be a uniquely 'free'
constitutional right. Hopefully, even those opposed to or uncertain about same-sex marriage
will see it that way in the future."

WHY IS THERE DEMAND FOR SAME SEX MARRIAGE LAW IN INDIA?

Decriminalizing homosexuality: Section 377 of IPC

In India the act of homosexuality was criminilized by Sec.377 of the Indian Penal Code,
1860. However there was awareness of the fact proved through various clinical research that
‘Homosexuality’ is normal form of human sexual behaviour. Thereafter homosexual
community as well as organisations fighting for the cause of homosexuals started
campaigning for legalizing such sexual relationships. In India Supreme Court verdict in the
case of Navtej Singh Johar v/s Union of India (2018) has decriminalized Sec.377 partly,
legalising homosexuality between two consenting adults. Also, the Supreme Court held that
the LGBTQ + community persons enjoy the right to equality, dignity and guaranteed by the
constitution on the same footing as all other citizens. However in India the law is silent on the
point that whether same sex marriages are legal or illegal and there is no law governing such
marriages, adoption or inheritance, etc. (Sharma, The Unanswered Question of Same-Sex
Marriages in India 2020)

The Apex Court and the Government remained unaddressed on ‘same sex marriage’. India
does not recognise same-sex marriages. None of the marital laws expressly recognise same-
sex marriages. The world is heading towards progressive LGBTQ+ rights, but the
government of India doesn’t seem to be in the mood for leaving the clutches of orthodoxy
and conservatism, despite the 2018 verdict.

IMPORTANCE OF LEGALISATION OF SAME SEX MARRIAGE LAW:

THROUGH THE LENSE OF PETITIONS FILED BY GAY COUPLES

Recently, the Supreme Court heard two petitions filed by gay couples seeking recognition of
same sex marriage under the Special Marriage act. The petitions were listed before a bench
headed by CJI DY Chandrachud and also comprising Justice Hima Kohli.

 First petition

The first petition lead by Supriyo Chakraborti and Abhay Dang, a gay couple for almost ten
years states that the right to marry a person of one’s choice should extend to LGBTQ
+community, as well. They opined that the right to marry a person of one’s choice is a
fundamental right; denying LGBTQ persons the right to choose a marital partner for all legal
and social purposes is ‘a denial of a basic human right’. The petition points out that they both
get married during the second wave of covid but still they do not enjoy the rights of a married
couple. Petitioners submitted that the Special Marriage Act is Ultra vires the constitution of
India to the extent it discriminates between same sex couples and opposite sex couples
denying same sex couple both legal rights as well as social recognition and status that flow
from marriage. Also, non-recognition of same-sex marriages is also violative of fundamental
human rights as envisaged in international law, as Article 16 of the United Nations Universal
Declaration of Human Rights declares that all ‘men and women of full age’ have the right to
marry ‘without any limitation’. (Chaturvedi 2022)

 Second petition

The second petition has been filed by gay couple Parth Phiroze Mehrotra and Uday Raj
contending that non-recognition of same sex marriages is violative of right to quality under
Article 14 and Right to life under Article 21 of the Indian Constitution. They both are in
relationship for 17 years. They claim that they are raising two children together, but since
they cannot legally solemenize their marriage, it has resulted in a situation where both
petitioners cannot have legal relationship of parent and child with both their children. They
content that the non-legalisation of same sex marriage in India is the violation of fundamental
rights including Articles 14, 15, 19(1)(a) and 21.

Thereafter, the Supreme Court issued notices to the Centre and the Attorney General of
India, seeking their response to these two petitions to allow solemnisation of same-sex
marriage under the Special Marriage Act, (SMA) 1954. (Chaturvedi 2022)

GOVERNMENT’S UPTAKE

The government of India doesn’t seem to be in the mood for leaving the clutches of
orthodoxy and conservatism, despite the 2018 verdict. Opposing the petition, the Union
Government through its Solicitor General stated that “Our (Indian) legal system, society, and
values do not recognise same-sex marriages.” He further contended that “the 2018 judgement
merely decriminalises homosexuality or lesbianism, nothing more nothing less.”

The Centre opposed any changes to the existing laws on marriage to recognise same sex
marriages, saying such interference would cause “a complete havoc with the delicate balance
of personal laws in the country”.

“Living together as partners and having sexual relationship by same sex individuals is not
comparable with the Indian family unit concept of a husband, a wife and children which
necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and
the children born out of the union between the two,” the Centre argued in the Delhi High
Court. The Centre submitted that “registration of marriage of same sex persons also results
in violation of existing personal as well as codified law provisions — such as ‘degrees of
prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’
under the personal laws governing the individuals”. (Singh 2021)

AGAINST SAME SEX MARRIAGE LAW PETITION:

The most prevailing objection of opponents of same-sex marriage is a social rather than legal
one. BJP’s Sushil Modi opined that the state has a legitimate interest in maintaining a societal
equilibrium and in ensuring that new practices do not lead to the breakdown of our cultural
ethos and societal values. The judiciary, or more precisely two judges, however, learned and
respected, cannot usurp this role. Any policy intervention that impacts the direction of our
social institutions needs a thorough debate in Parliament and the society at large. Marriages
are, after all, the most personal public institution and clearly straddle the divide between the
individual and the state. (Modi 2023)

Citing the fundamental rights enshrined under Article 21 of our Constitution to allow same-
sex marriage is a deeply-flawed argument because marital relations are more than personal:
Humans are social beings whose humanity is expressed through their relationships with
others. Entering into a marriage, therefore, is to enter into a relationship that has public
significance as well.
To attempt to infer that a marriage between “two persons” in the Special Marriages Act,
includes couples of the same sex is fallacious because the same Act states that males should
have attained the age of 21 years and females 18 years for marriage. As per the Hindu
Marriage Act, 1955, and various family laws and penal statutes, marriage is clearly defined as
the union of a “man” and a “woman”. These laws without ambiguity refer to opposite sexes
as “husband” and “wife” — a biological man marrying a biological woman. Muslim Personal
Law also clearly defines mahr or other properties of a Muslim “woman” to be given to her at
the time of divorce. (Desk 2022)
The legislative intent and purpose of family laws and penal statutes that are enacted clearly
indicate one as “husband” and the other as “wife” and this is not possible or feasible in a
same-sex marriage.
Even in the off-cited judgment of Navtej Singh Johar v. Union of India (2018), which led to
the decriminalisation of Section 377 of the Indian Penal Code, the Supreme Court has
clarified that an individual also has a right to a union under Article 21 of the Constitution. It
has also been clarified that the reference to “union” does not mean the union of marriage.
Therefore, while there exists no statutory bar to the cohabitation of same-sex couples, there
cannot exist any fundamental right to claim a statutory recognition of relationships such as
same-sex marriage under Indian laws.
Marriage is a sacred institution in our country and revolves around three primary objectives
— dharma or duty, procreation and kama or pleasure and these can be achieved only by a
union of a biological man and biological woman. (Modi 2023)
Marriage and family are important social institutions that provide for the security, support
and companionship of members of our society and bear an important role in the rearing of
children and their mental and psychological upbringing. The well-being of a child in a same-
sex family will be severely impacted since he/she will cohabit in an environment that is
legalised but is neither natural nor regular. (Desk 2022)
Therefore, permitting and recognising same-sex marriage will strike at the core of our
culture, societal values, ethos, and traditions, leading to chaos and upheaval in our society.
India must find its unique solution to protect and preserve this sacred institution.

CONCLUSION

It can be concluded that there is a manifest requirement for the legal recognition of same-sex
marriages for both legal as well as social reasons. The evidences offered in this research
paper proves hypothesis wrong. There is demand of same sex marriages by LGBTQ +
community and other people through public interest litigation. But yet the government has
denied the legalisation of same sex marriage. In India, legalisation of same sex marriage is
neither too complicated nor unjust. It is just the orthodox nature of India which stop it to
extend marriage laws to LGBTQ+ community. Not allowing the LGBTQ+ community as per
their own choice is just like saying ‘you are different and there is no one to marry you in this
country; forget about the person you love’. India has accepted the live-in relationship of
LGBTQ+ community persons, which means India has indirectly accepted the love of two
souls without any discrimination. If the law of the country can recognise ‘love of two souls
irrespective of gender’ why can’t it recognise their marriage as well? If it is not allowed to
bind this love into a knot of marriage, then such love will always remain incomplete and
society will never accept it. India’s Constitution is ready for same-sex marriages but there is a
strong need to make people and the society leave the rudimentary shackles of so-called
‘values and culture’ and acclimate to the change flowing in nature.
References
Babar, Deepali. M. "“Homosexualty and Same Sex Marriages - Need for Legislation”." “Homosexualty
and Same Sex Marriages - Need for Legislation”. New Panvel: Acclaims, November 2019.

Chaturvedi, Arjita. "Will same sex marriages become legal in India?" Will same sex marriages
become legal in India? StudyIQ, December 25, 2022.

Desk, Express Web. "Same-sex marriage unacceptable, will harm delicate balance of personal laws:
BJP's Sushil Modi in Rajya Sabha." The Indian Express, December 19, 2022.

Goel, Ishita. "THE VALIDITY OF SAME-SEX MARRIAGES IN INDIA." Scholarly Research Journal for
Humanity Science & English Language, 2019.

Modi, Sushil Kumar. "BJP's Sushil Kumar Modi writes: Question of same sex marriage needs to be
addressed head on and urgently, not by legislature." The Hindu, January 11, 2023.

—. "The Unanswered Question of Same-Sex Marriages in India." October 9, 2020.

https://www.jurist.org/commentary/2020/10/paras-sharma-india-same-sex-marriage/.

Singh, Soibam Rocky. "Same sex marriages will cause havoc, centre tells Delhi High Court." The
Hindu, February 25, 2021.

Team, The Hindu Data. "In 133 countries homosexuality decriminalised, but only in 32 of them same-
sex marriage is legal." The Hindu, January 15, 2023.