Homosexual’s Right to Marry – Has India truly accepted their existence?

Methodology: This paper is primarily based on secondary research, from online database resources, and personal experiences of few people from the society.

I. Introduction

In the words of Michael J. Fox, ‘Family is not an important thing, it is everything’². Every individual in this world deserves to have the joy of a family. Family not only comprises of people we are biologically related to, but to all those, whom we connect to emotionally and consider them to be a part of our lives in whichever way possible. No one should be denied to a family because of legal, biological, social or any other reasons. The definition of a family has been changing as per the changing need of the society. Merriam Webster defined family as, “the basic unit in society traditionally consisting of two parents rearing their children”.³The Oxford Dictionary also defined a family as, “A group consisting of two parents and their children living together as a unit”⁴. Many other similar definitions of a family prove that a family need not necessarily consist of a man and a woman who then produce their children. It implies that any two individuals along with their children tend to form a family. It has been long rooted conception of the society that a family should only mean a husband and his wife along with their own biological children. The acceptance of adopted children or partners of the same sex was never made by the society. Even the most developed countries took a lot of time to incorporate the idea of non-biological child to be accepted as one’s own, or the idea of love and companionship between two people of the same sex. The homosexuals in India have been in a hush for a very long time now, the fear of societal hatred or non-acceptance have led such people to be in a hole throughout their lives. Living as what they are and getting their rights was like a night’s dream for this community. In 2018, a judgment was passed by the Supreme Court of India, which finally gave recognition to love relationships, i.e. the same-sex relations and decriminalized the ancient British law which found engaging in a same sex relation to be a crime. But does decriminalizing such a relation, implies acceptance of one?

II. History Of The Homosexuals In India

The word homosexuals literally means as ‘of the same sex, being a hybrid of the Greek prefix homo meaning ‘same’ and Latin root meaning ‘sex’. Homosexuality is a sexual direction portrayed by sexual fascination or sentimental love solely for individuals who are distinguished as being of a similar sex. Individuals who are gay, especially guys are known as 'gay', gay females are known as 'lesbians'. That is gay relationships, now and then alluded to as gay marriage, demonstrates a marriage between two people of a similar sex. Homosexuality is certainly not another term in India yet it has a long history. Homosexuality isn't a pattern which has recently risen with the evolving times, yet our old messages and books additionally specifies the presence of one. In the sanctuaries of Khajuraho, there are pictures of ladies suggestively grasping other ladies and men showing their private parts to one another. Researchers have for the most part clarified this as an affirmation that individuals occupied with gay acts .

In the Valmiki Ramayana, Lord Rama's lover and friend Hanuman is said to have seen Rakshasa ladies kissing and grasping other ladies. At somewhere else, the Ramayana tells the story of a lord named Dilip, who had two spouses. He kicked the bucket without leaving a beneficiary. The story says that Lord Shiva showed up in the fantasies of the bereft sovereigns and disclosed to them that in the event that they had intercourse to one another, they would have a kid. The sovereigns did as appointed by Lord Shiva and one of them got pregnant. They brought forth a kid, who proceeded to become popular ruler Bhagirath, most popular for "having brought River Ganga from paradise to the earth".

The Mahabharata has an intriguing tale about Shikhandini, the ladylike or transgender warrior of the time and answerable for the destruction and killing of Bhishma. Shikhandini was a girl of King Drupada, who raised her as a sovereign to deliver retribution from the Kurus, the leaders of Hastinapur. Drupada even got Shikhandini wedded to a lady. After her significant other found the truth, she revolted. The day was spared by divine intercession giving Shikhandini with masculinity during night. Shikhandini hereafter lived like a bisexual.

During the extraordinary beating of smooth sea, as indicated by Mastya Purana, Lord Vishnu appeared as an excellent lady, Mohini to deceive the evil spirits with the goal that the divine beings could drink all the amrut (the godlike juice found from agitating of sea). In the mean time, Lord Shiva considered Vishnu to be Mohini and right away succumbed to him. Their association prompted the introduction of a youngster - Lord Ayyappa. Another sacred writing, the Narada Purana has references what exactly might be named "unnatural offenses" portrayed in Section 377. At one spot, the Narada Purana states, any individual who releases semen in non-vaginas, in those creatures dejected of vulva, and uteruses of creatures is an incredible miscreant and will fall in damnation. The purana doesn't affirm of "unnatural offenses" yet the references demonstrate that they were practically speaking.

The well known law code, Manusmriti accommodates discipline to gay people. Manusmriti says that if a young lady has intercourse with another young lady, she is obligated for a fine of 200 coins and ten whiplashes. In any case, if lesbian sex is performed by a develop lady on a young lady, her head ought to be shaved or two of her fingers cut off as discipline. The lady ought to likewise be made to ride on a jackass. On account of gay guys, Manusmriti says that sexual relationship between with two men brings loss of rank. On the off chance that a man engages in sexual relations with non-human females or with another man or enjoys butt-centric or oral sex with ladies he is subject for discipline according to the "Difficult Heating Vow". The ninth section of the Kamasutra of Vatsyayana - created in around fourth century BC, discusses oral sexual acts (Auparistaka), homosexuality and furthermore of comparable exercises among transgenders (tritiyaprakriti). The book, nonetheless, doesn't support homosexuality of any sort. Arthashastra of Kautilya - a treatise on governmental issues - additionally specifies homosexuality. However, the book makes it an obligation of the lord to rebuff those enjoying homosexuality and anticipates that the ruler should battle against the "social malevolence". Old Indian writings, engravings and artistic creations on sanctuary dividers, plainly, don't endorse of homosexuality, yet the rehashed references do recognize its reality back then.

III. Acceptance Of Homosexual Relations In The World

Even though India remains silent in regards to homosexuality and is still not considered as something normal in the society, but the scenario in other countries is different. Same sex relationships have been very well started to accept in the other countries from a long time. Same-sex relationship has been legalized in twenty-seven countries, including the United States, and civil unions are recognized in many Western democracies. Yet same-sex marriage remains banned in many countries, and the expansion of broader lesbian, gay, bisexual and transgender (LGBT) rights has been uneven globally. International organizations, including the United Nations, have issued resolutions in support of LGBT rights, but human rights groups say these organizations have limited power to enforce these newly recognized rights. A look at the status of the homosexuals in different countries will help in assessing how it can be implemented in India:

(A) United States Of America:⁵

On June 26, 2015, the Constitution awards same-sex couples the option to wed, adequately legitimizing same-sex marriage in the thirteen states where it stayed restricted. The five-to-four decision, which reaches out to U.S. regions, came in the midst of emotional moves in popular feeling: 67 percent of Americans surveyed in 2018 affirmed of same-sex marriage, up from 27 percent in 1996. The decision came under two decades after President Bill Clinton marked the Defense of Marriage Act (DOMA), which characterized marriage as a joining between a man and a lady, in this way denying same-sex couples government marriage benefits, for example, access to human services, standardized savings, and tax breaks, just as green cards for outsider life partners of U.S. residents. In June 2013, the Supreme Court struck down the pieces of DOMA that denied government advantages to same-sex couples. In spite of these Supreme Court decisions, a discussion proceeds in the United States between backers of legitimate equity and people and establishments that item to same-sex relationships based on strict conviction. In June 2018, the U.S. Incomparable Court decided for a Colorado bread cook who wouldn't make a wedding cake for an equivalent sex couple due to his strict convictions, damaging the state's social liberties law. Be that as it may, the court decided not to give a more extensive decision on whether organizations reserve an option to deny products or administrations to LGBT individuals for strict reasons.

(B) Europe:⁶

The greater part of the nations that permit same-sex marriage are in Western Europe. Same-sex marriage has been legitimized in the Netherlands (2001), Belgium (2003), Spain (2005), Norway (2009), Sweden (2009), Portugal (2010), Iceland (2010), Denmark (2012), France (2013), the United Kingdom (2013), Luxembourg (2015), Ireland (2015), Finland (2017), Malta (2017), Germany (2017), and Austria (2019). Italy is the biggest Western European nation where same-sex marriage isn't lawful; its parliament, nonetheless, endorsed common associations for same-sex couples in 2016. Backing for same-sex marriage is more fragile in Eastern Europe. A 2017 Pew Research Center survey found that help for lawful acknowledgment of same-sex marriage is 16 percent in Belarus and only 9 percent in Ukraine. Backing in Poland and Hungary, which both have protected bans on same-sex marriage, is 32 percent and 27 percent, separately. In any event ten different nations in Central and Eastern Europe have such denials. Hungary and the Czech Republic, in any case, do perceive same-sex associations; in 2018, a Budapest court decided that equivalent sex relationships performed abroad should be perceived as organizations. Estonia likewise permits common associations, however famous help for same-sex marriage in the Baltic states is low.

(C) Asia:⁷

Same-sex relations are unlawful in quite a bit of South and Central Asia, remembering for Bangladesh and Pakistan. In late 2018 India lifted a pioneer period prohibition on gay sex. Nepal has established a few insurances against separation dependent on sexual direction, and in 2015 an administration delegated board suggested that legislators authorize same-sex marriage. Bangladesh, India, Nepal, and Pakistan permit individuals to enroll as a third sexual orientation in authentic reports.

There is little data on open perspectives toward homosexuality in South and Central Asia. An exploration discovered 35 percent of Indians and 30 percent of Pakistanis in 2016 idea same-sex marriage ought to be lawful. Backing in Kazakhstan remained at 12 percent.

(D) Middle East And North Africa:⁸

Same-sex relations are unlawful in a great part of the area and are deserving of death in Iran, Saudi Arabia, and Yemen. In 2018, Lebanese courts set a possible point of reference for decriminalization. Israel perceives same-sex relationships acted in different nations, and same-sex couples appreciate common advantages, including residency grants for the accomplices of Israeli residents. Israel stands separated from its neighbors in open mentalities toward same-sex couples: as per the ILGA overview [PDF], 49 percent of Israelis said same-sex marriage ought to be legitimate, contrasted with 19 percent of respondents in the United Arab Emirates, 16 percent in Egypt, and 14 percent in both Jordan and Morocco.

IV. Right To Marry Person Of Own Choice – Essential Part To Form A Family

Marriage is a sacred institution, especially in a country as that of India, but still the very personal and intimate decision of marrying the person of one’s choice is interfered with most of the times. Killings in the name of honour and prestige is a common practice in India. The Supreme Court in the case of, Shafin Jahan v. Asokan K.M⁹ laid down the principle rule that it is the fundamental right of every person to marry a person of his/her own choice without any external force affecting his ability to make that choice. This judgement made an addition in list of fundamental rights available to the citizens of india.¹⁰ The Supreme Court stated that, “Ms Hadiya and Mr Shafin Jahan are adults, who decided to marry each other. Marital status is conferred through legislation or custom. The High Court was wrong in letting parental love and concern override the right of an adult to choose who she wishes to marry. Moreover, the Constitution guarantees that the ability to take such decisions is a part of liberty and individual autonomy. The right to marry a person of one’s choice is integral to Article 21. Choice of a partner lies within the exclusive domain of an individual, and is a part of the core zone of privacy, which is inviolable. Thus, the High Court was wrong in using its powers under Article 226 to annul Hadiya’s marriage with Shafin Jahan.”¹¹ The judgment clearly stated that when two adults consent on marrying each other, no external force has any right to stop them from doing so. The judgement does not explicitly state that the only a man and a woman have the right to get married and it has made the ambit of marriage open to two consenting adults.

It is important to read the above judgement¹² with the iconic judgement of Navtej Singh Johar v Union of India¹³ which came in the year 2018 in which the Supreme Court of India finally decriminalised the long prone law of homosexual sodomy¹⁴. After the 2018 judgement, the separate Bill on the Protection of the rights of the LGBTQ community was passed which later became the Transgender Persons (Protection of Rights) Act, 2019, which laid down different rules to safeguard the interest of the LGBTQ community. This Act also gave recognition to the transgender as a separate gender in the country of India. When we read the decision of the court in the Hadiya case along with the Johar case, we can draw a conclusion that when two consenting adults decide the get married, the question of caste, race and gender shouldn’t be a hinder between them. Although the personal laws in India does not ensure the marriage of homosexuals to be valid and hence owing to the judgments related, a separate provision or a separate act for the marriage and other family related disputes should be created for the homosexuals, as they too have been given equal status in the society by our very own law.

V. “Marriage Project”: A Step Towards The New Change

The amazing part of the Section 377 judgment was that it put the LGBTQ+ people group inside the ambit of the protected conservative as sexual minorities needing the rights and opportunities, which were until now denied to them. Equity Indu Malhotra appropriately stated, "History owes an expression of remorse to the individuals from this network and their families, for the deferral in giving redressal to the shame and segregation that they have endured the hundreds of years. The individuals from this network were constrained to carry on with an actual existence loaded with dread of retaliation and oppression." So, what is the Marriage Project? Easy, it is a legitimate undertaking that expects to authorize same-sex marriage in India. There is a social and legitimate viewpoint towards this undertaking.

(A) Lawful Aspect:

The lawful angle is that in a nation like India, existing conjugal plans revolve around a heap of rights. These rights figure out who you can co-sign on a rent, who you can leave your legacy to, who you can assign for extra security, etc. These common freedoms are reached out by the State to blood relations and legitimately perceived life partners. In India, such rights at present don't reach out to same-sex couples, and this is the legitimate issue.

(B) Social Aspect:

The social part of the marriage venture implies India being a 'marriage nation'. From their numerous communications with youngsters all through the length and broadness of the nation, Guruswamy and Katju noticed that youthful Indians—gay or straight, Hindu or Muslim, upper standing or lower position, male or female, all needed something very similar—an enduring long haul relationship perceived by society and by the law. Truth be told, some portion of what makes for a healthy life isn't simply word related achievement, yet in addition individual achievement. The center piece of numerous individuals' bliss originates from having somebody in their life whom they can love and whom the tradition that must be adhered to perceives as a legitimate accomplice or life partner deserving of acknowledgment. India is, all things considered, a kinfolk based society and a family society.

The Marriage Project, is without a doubt eager, however one worth battling for. Furthermore, best of all, the basis has just been begun. Not long after the Supreme Court decision, youngsters started talking about the issue of same-sex marriage on different online LGBTQ+ gatherings.

VI. Legal Outlook – Real Life Incidents:

Everything might be reasonable in love, however not in law. In spite of the fact that Section 377 has been decriminalized, Indian laws are yet to perceive same-sex relationships. Every single Indian law, including the individual laws of religions, consider marriage as something occurring between a man and a lady, says a lady legal official. Since the laws don't perceive same-sex relationships, the lawful insurance and cures endorsed for couples won't be accessible for them. Getting married was not that simple for Nikesh Usha Pushkaran and M.S. Sonu, who got married on July 5, 2018. Like their relationship, which had caused a commotion, they needed to keep the occasion a cautious one and took care not to discharge the news and photos of their marriage at Guruvayur Temple. As indicated by the current situation, their marriage can set out the accompanying results.

1. Marriage cannot be registered as no personal law still allows same-sex marriages.

2. No protection of the marriage or thereafter rights in the marriage which may include; divorce, alimony, maintenance, adoption or custody of child

3. No legal remedies related to married life will be made available.

4. No protection under the Domestic Violence Act will be given.

5. Their staying together and engaging in sexual relations will not be against the law or objected by the law.

6. Societal acceptance of such marriages might still take time.

VII. Conclusion And Suggestions

Through this paper, a thorough research about the homosexual relationships was made, and the need to make amendments or adjusting the laws to make place for the maritial rights for the same-sex couples. 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. We thus need to legitimate same sex marriages in order to move forward in the direction of human rights.

1. A new legislation for the homosexuals can be suggested which will include all the family laws for the homosexuals irrespective of their religion.

2. If religion is to be given priority, then amendments in the existing personal laws is to be made to secure the rights of the married homosexuals.

3. Also other protections related to marriage should be granted to the homosexual couples, such as right to seek divorce, right to receive maintenance, right to adopt a child, etc.

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VIII. References

Sections and Articles:

• Section 377 of Indian Penal Code
• Section 5 of the Hindu Marriage Act
• Article 21 of the Indian Constitution.

Case Laws:

• Navtej Singh Johar v Union of India
• Shafin Jahan v. Asokan K.M

Websites and papers:

• The Hindu
• Times of India
• History of homosexuals

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