COMPLEXITY OF SAME SEX MARRIAGES IN INDIA: A CRTICAL ANALYSIS

COMPLEXITY OF SAME SEX MARRIAGES IN INDIA: A CRTICAL ANALYSIS

Author:- Aditi Bhaiya, a student of MNLU, Nagpur. 

Marriage, is a socially recognised institution, traditionally between a man and a woman. It is a marriage through which the human race has propagated future generations. A very new, perhaps, an evolving concept has become a contentious discussion in the country, which is, same-sex marriages. Same-sex marriage refers to the legal recognition of marriage between two individuals of the same sex. It gives same-sex couples the same legal and social recognition, rights and privileges traditionally associated with marriage, including property rights, inheritance rights. As mentioned above, the issue of same-sex marriages has been a subject of debate and controversy, with arguments for and against based on religious, cultural, social and legal considerations. 

Homosexuality as a concept was only recently criminalized in 2018. Prior to 2018, homosexuality was considered an unnatural offence, which means that something that has not originated in the nature but is an acquainted trait. Hence marriage, is only considered to be sacrilege when entered into by heterosexuals. Another contention which has time and again been raised is that homosexuality is against the Indian culture and religion. A general opinion which runs around a majority in our country is that our religion and culture condemns homosexuality. 

Although, these arguments have been refuted as well. The fundamental principles laid down in the Constitution of India such as the right to freedom of religion, puts a reasonable restriction. This implies that an individual can exercise their fundamental rights in such a manner that does not violate somebody else’s right to freedom of religion. Moreover, the Supreme Court has also imposed certain restrictions of public order, health, social welfare on Article 25[10] i.e. the right to free practice profession and propagation of religion. Under which the religious freedom of a particular group can be overlooked if it poses a threat to public order, health, morality and welfare. Hence it can be seen that not only does the fundamental right of religious freedom expands to homosexuals too, but also that our law mandates that homosexuals also have the right to equality and marriage which cannot be violated by someone else’s enjoyment of own fundamental rights.

Apart from this, there exists a plethora of legal complexities with regards to same-sex marriages as well. There are criminal and civil legislations which recognises a marriage between only and ‘man’ and a ‘woman’. Sec 498 of IPC which provides imprisonment for mental and physical torture of a woman by her husband and her in-laws, the Domestic Violence Act of 2005 and other laws which defined marriage to be between only a man and a woman. This justification explains why de-gendering our laws is essential. It highlights the gender roles that are predetermined by our legal system. Our laws categorically reject the notion that a male could also be a victim of abuse in cases of domestic violence and instead classify the woman as the victim and the man as the perpetrator. In addition to physical abuse, mental and emotional torment in a marriage must also be acknowledged when the victim is a male. Additionally, portions of personal laws that address succession, adoption, property disputes, and other concerns employ terms like husband and wife, making it even harder to include homosexual families in our legal system and discriminating against them.

Our legal system hence naturally lags behind when it comes to considering same-sex couples for marital roles. If this persists, how can we guarantee to all the citizens justice and equality, which are the pillars of the Constitution? 

Very recently, two same-sex couples filed a petition in the Supreme Court of India seeking the recognition of same-sex marriages. The case was later referred to a five-judge bench constitution bench. The verdict now stands reserved. 

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