SHOULD SAME-SEX MARRIAGE BE LEGALISED IN INDIA

 Should Same-Sex marriage be legalised in India?

Our Indian society is constantly evolving. Over hundreds of years ago, Sati Pratha was a norm in Hindu society until it was criminalised in 1829 and has now ceased to exist. The remarriage of widows which was once impossible has now become a norm of society. A trend is also seen in the reduction of female infanticide, child marriage, the purdah system, the dowry system, polygamy, untouchability and many more. All these which were once impossible, are practical today. Today, our modern society has its own needs and demands. Women and minority rights, breaking gender stereotypes, breaking the taboos around sex, and the question of identity, that is, the difference between the sex and gender of a person.  All this is a result of our society welcoming the new changes and imbibing them. The law and governance play an important role in this to shape public opinion and ensure just practises in the society. The question largely debated today, in and out of courts, is should same-sex marriages be legalised?

Our courts have already provided the much-needed rights to the third gender through the famous Nalsar vs UOI verdict. The courts have also, decriminalised consensual homosexual relationships in Navtej Singh Johar vs UOI case in 2018. All these progressive steps towards providing rights to people of these communities have elevated their acceptance and identity in the society. Yet, today people from the LGBTQ+ community are fighting for the rights for their marriage to be lawfully recognised. The very recent Supreme Court verdict has provided them little hope and proved that the path to legal recognition of same-sex marriages is not easy.

People from the LGBTQIA community have been for a very long time demanding their marriage to be given legal recognition. This is important for them as it would give them an equal standing as the heterosexuals and help them live a dignified life. Marriage as per the Indian traditions has always been a union of two souls. The government, on the other hand, believe that this union is only possible if these souls are of biological man and biological woman. This is true to some extent, as the framed marriage laws of our nation are non-fluid and were not made considering the homosexual couple. Nevertheless, today when such need has risen, the government call same-sex marriage an “Urban-elitist” view which goes against the values and traditions of the society. This stringent and orthodox view of the government reeks of a homophobic mindset of various sections of society. A large section of our society is homophobic, but this homophobia cannot be a reason for the government to refrain from framing such laws that would ensure justice to homosexual couples. It is the duty of the state to work for the welfare of its citizens and give special emphasis to the rights of the minorities. Clearly, these same-sex couples are a minority, and their rights are being crushed for the whims and fancies of the majority. There will be a section of society which will always be upset by the upcoming laws, but the role of the government is to frame the unbiased laws and not pleasable laws.

The LGBTQIA community faces a lot of hardship because of the non-recognition of their marriage. This includes their failure to adopt a child, and availing various government schemes and tax benefits meant for married couples. It becomes almost impossible for them to avail joint family insurance. Above all, it is a question of dignity and identity for them. Their demand for legal recognition under the Special Marriage Act 1954 is justified not only for all the hardships that they face but also, for the equal rights that our constitution guarantees to its citizens under Article 14. When a consenting gay relationship is totally legal in the eyes of law it is only fair that this relationship is granted a status of legal marriage, if desired by the couple.  

It is essential to grant legal status to this marriage because irrespective of the legal status, such marriages exist. The existence of such marriages without any registration makes the stakeholders of these marriages more vulnerable. This is because, when these couples marry, all the problems associated with a marriage remain the same. These include marriage disputes, separation, divorce, marital rape, physical abuse and so on. Now, that the government refrains to grant their marriage a legal status, these marriages are also void of legal remedy in case of the above-mentioned disputes. The laws that apply to a legal marriage do not apply in their case. This makes the entire institution of same-sex marriage lawless and leaves a large scope of crimes.  

The Supreme Court in its most recent judgement on same-sex marriage has passed the ball over to the government. In its 3-2 verdict, the court held that it is within the parliament’s ambit to change the law for validating such a union. It now lies upon the Centre to frame laws for it. This, however, does not seem to be a great concern for the present government. Nevertheless, the Centre has agreed to set up a high-powered committee to examine the concerns of same-sex couples.

This question of legal recognition of same-sex marriage should not end up as a tussle between the government and the judiciary. It is the essence of our democracy to provide equal rights and recognition to its citizens. At the same time, we need greater awareness of the issue of homosexuality. The joint efforts of the government, people, activists and courts can definitely help in bringing a positive change in the mindsets of people. A scientific temperament is the need of the hour. What is even more important, is an empathetic approach and treating the homosexual community as equals. The customs of the land should not be weighed over the right to a dignified life of a citizen. All we can hope is that India does not wait too long to legalise same-sex marriages.