The landmark judgment on 6th September 2018 scrapped the criminality of homosexuality as defined under section 377 of the Indian Penal Code, 1860 and opened up many probabilities for the queer community. On the whole, knowing how family inclined India is, a libertarian step in normalizing queer rights is legalizing gay marriages. Same-sex marriage is only fair in wholeheartedly accepting gay couples, by providing them the rights and benefits the same as straight (heterosexual) couples. The battle for decriminalizing same-sex unions has been exhaustive. Hopefully, legalizing gay marriages would be a smooth co-operation. Same-sex marriages are a need for homosexual couples as much as it is for any straight couple and it is only fair that they get free from these unnecessary restrictions through their harmless plea. It is time that homosexuality is not treated as an unwanted phenomenon in the society. It’s time people accept one thing permanently that homosexuals are people like everyone else and anyone’s sexuality is not a matter for discrimination.
Keywords- homosexuality, same-sex marriage, freedom, equality
A swingeing law, section 377 of the Indian Penal Code that criminalized ‘unnatural sex’ between two adults was partially abrogated in September 2018. Since then, there has been a lot of supposition on the step ahead for the rights of the queer community. There have been diverse opinions about the same, as many people consider it as a gigantic victory, which removes shame from queerness, gives people the right and freedom to love whoever they want, while many people are critical about it, thinking of it as a sin and downright wrong.
Menaka Guruswamy and Arundhati Katju, the two lawyers who fought the battle against section 377, came forward with the issue of recognizing same-sex marriages. Same-sex marriages are recognized and legal in 29 countries in the world. Recognition is the most crucial right, and most needed step ahead for the queer community as it establishes a sense of acceptance for them in the society.
Marriage in India is considered as a sacrament and holds a great value. Marriage is a dominant convention in India as well as across the globe. It is recognized by society and law, and holds several matrimony benefits, rights, and privileges arising out of it.
WHAT MARRIAGE NECESSITATES?
Marriage is a social institution. It is the premise for a ‘family’. Marriage includes the rights of regulating sexual behaviour, procreation, safeguarding children, and carrying on the family name. In Hinduism, marriages are considered to institute a relationship between two families.
In India, marriage is sanctified and is solely accepted as a form of union between two individuals- both socially and legally. Marriage comes with many benefits such as the right to adoption, right to inheritance, right to own joint bank accounts, get a pension, become nominees in their insurance etc. Marriage in our country is not only recognized or based on a choice, but is also determined as mandatory and the basis of having a progeny. Marriage holds an intrinsic value in our culture and is so deeply ensconced in our society that it is a requirement as well as a desire of the partners to live together. The queer community awaits this right to be able to enjoy their lives freely and wholly as a part of society, the lack of which infringes their rights of inheritance, adoption, and any benefits which a heterosexual couple has.
RIGHTS UNACCUSTOMED TO QUEER COMMUNITY WITHOUT MARRIAGE
Same-sex marriages are banned in India and hence non-heterosexual couples are not permitted to adopt a child together. The law disentitles the queer or the LGBTQIA+ community from adopting a child together, signifying that homosexual unions are still not equal in the eyes of law.
The Judgment on Section 377 may have decriminalized homosexuality in the nation, but the mind-set in India disparages LGBTQIA+ couples, as one of the officers of the oldest adoption agencies in Karnataka stated that a child cannot be given to an ‘inferior couple’ and that the child should be given to a mentally, physically, and financially healthy family where the child understands the value of both a mother and a father which therefore denied the child to be given to a gay or a lesbian couple.
- INSURANCE NOMINEES
The family system in our country acknowledges and provides benefits to heterosexual couples in a lot of ways but not to homosexual couples. Heterosexual people or married couples can buy and benefit from the health insurance of their partners and their families also benefit from the same. But in the case of homosexual couples, the companies ask them to show them the proof of their family status to have health and life insurance. Since same-sex marriages are not allowed in India, this is the denial of granting them life insurances.
And therefore, there is a dire need to move ahead and legalize same-sex marriages in our country. There has also been a demand for the same in the courts and to the legislation but to no avail so far.
DEMAND FOR SAME-SEX MARRIAGES
Nikesh Pushkaran and Sonu MS are a married gay couple who filed a petition in court for recognition of the same-sex marriages and have challenged the provisions of the Special Marriage Act, 1954. The couple married each other two years ago and reached out to the District Administration to register their marriage under the Special Marriage Act, 1954, but were denied the same from an officer stating that same-sex marriages are not permitted by the law. The gay couple then approached the high court to fight for their rights.
The petition filed was headed by Justice Anu Sivaraman of the Kerala High Court who concurred to examine the case and thereafter issued a notice to the Central and State government. Although homosexuality was decriminalized, the law still does not provide any access or rights to any of the civil liberties like the inheritance of property, adoption, opening joint bank accounts, and any other rights which a married couple is entitled to. This landmark judgment feels incomplete and sketchy. The gay couple challenged the high court for the violation of their basic fundamental rights. This insufficient law questions the ‘Equality Before Law’, individual equality, and gratuitousness of one’s life. This petition has raised and agitated a debate for marriage equality across the nation.
- UNIFORM CIVIL CODE
In 2017, a draft for legalizing same-sex marriages was proposed which defined marriage as the legal union under this act of a man with a woman, or a man with another man, or a transgender with transgender, or a woman with a woman or a transgender with either a man or a woman. It proposed that any two people who have been in a relationship for more than two years shall have the same rights as married couples. The Law Commission began seeking public views and thoughts about the same and postponed the deadlines for the opinions, from 19th March 2018 to 6th May 2018. The Law Commission started seeking religious outlooks and received mixed opinions, mainly opposing views, and the progress on this code has been stalled since.
RULINGS OF THE COURTS
In the case of Shakti Vahini v. Union of India(2018) 7 SCC 192, the court held that an adult has a fundamental right to choose and marry the person of his choice, and hence the activists felt that the joint reading of Shakti Vahini and Navtej Singh Johar v. Union of India AIR 2018 SC 4321, the landmark ruling of September 2018, can yield the recognition of same-sex unions within the Special Marriage Act.
Homosexuality has been treated as a disease in society because of the conservative orthodox mentality of the people. How can any person decide what is right or wrong for others? How can anyone for that matter decide who is to be loved and who not? The restrictions which are imposed on same-sex marriages or relationships have led them to go through an unaccountable amount of hurt. Now the thinking and attitude of people has gradually changed towards gay marriages, and so has the approach towards actively achieving their deserving rights.
THE MARRIAGE PROJECT
The couple and lawyers who fought for decriminalizing 377, are set to go ahead to normalize and legalize gay marriages through the ‘Marriage Project’. This project aims to legalize same-sex marriages and to remove the stigma attached to it. Marriage in our country is an eventuality and is received with societal respect and identification. The essence of marriage is an accepted and a long-lasting relationship which is a longing of every person in a partnership.
This project is a breakthrough to change the conservative, antagonistic mind-set of people. This step aims to break all the shackles that these norms and rules behold. The historic judgment of abrogating section 377 was a battle of 158 years; the fight for marriage rights would hopefully be less incommodious.
India is considered as a marriage- oriented country. Matrimony is considered as a holy bond between not only the two spouses but their families as well. It holds an identity on its own. Homosexuality is still looked down upon as immoral, unnatural, and an abnormality, which makes the queer people hide their sexuality and are often fear-ridden. The social conventions are embedded in a way that makes one believe that being different is wrong and people will never accept them for what they believe is a “disease”. This mind-set needs to be eradicated from the minds of people. The Hon’ble Supreme Court has taken a broad-minded perspective and quashed this discriminative law and supported the people of the nation. The next step requires an even broader ethos. The world requires love, freedom, and respect; it’s time we move forward and embrace all of the universe’s creations and preach equality because the law protects everyone from social discrimination and hence, it is time to respect their existence or expect their resistance.
Author: Aarti Gilda, Dr. D.Y.Patil College of Law, Nerul