Reading time : 6 minutes
Marriage is a legally and socially sanctioned relationship, often between a man and a woman, governed by laws, regulations, conventions, beliefs, and attitudes that define the partners’ rights and responsibilities. The concept of marriage between a man and a woman dates back to 2350 BC, but it is only recently that we have begun to discuss something that is out of the ordinary for society, namely, same-sex marriage, or marriage between two men or two women. Despite the fact that same-sex marriages have been common for a long time, Indian law has yet to grant gay couples the same privileges as heterosexual couples. And, this lets us throw light on Section 377 of the Indian Penal Code.
- What is Section 377?–
The Indian Penal Code, Section 377, is a 157-year-old colonial statute that criminalised homosexuality in India. The section was first established in 1864, while India was still a British colony. ‘Unnatural Offenses’ covered the wrongdoings done in regard to Section 377. According to section 377 of the IPC, anybody who engages in consensual carnal intercourse with a man, woman, or animal in a manner that is contrary to nature is guilty of a criminal offence.
The punishment for committing this crime is from ten years to life in jail, or the offender may be required to pay a fine under Section 377 of the Indian Penal Code. This legislation made all carnal and oral sex illegal, and the community that was most affected by the consequences of this regulation was the one of same-sex relationships. Furthermore, many human rights organisations have stated that the police have utilised this sector to mistreat and harass members of the LGBT community on numerous occasions.
It has also been noted that society has changed since Section 377 was introduced in 1860. In State of Kerala v. N.M. Thomas, the Supreme Court held that the Constitution has converted India from a medieval and hierarchical culture to a contemporary and equitable society. The constitution aspires to lead society to a brighter future. This means that things that are harmful to society should be dealt with within a reasonable amount of time. As a result, the Constitution’s aim is to make progressive societal reforms. The term “Transformative Constitutionalism” is used to describe this goal. The core constitutional ideals of justice, liberty, equality, and fraternity are embraced by Transformative Constitutionalism. This concept seeks to recognise the needs of modern society and to combat sluggish and static beliefs. It provides the Indian Constitution the strength and ability to change in response to changing circumstances; otherwise, society would be unable to keep up with the times and will eventually fail to advance. Stagnant civilization is not healthy for humanity or mankind.
- How did it happen?-
No country had legislation that recognised the validity of same-sex unions until the beginning of the twenty-first century. Twenty-eight nations have recognised same-sex unions in the last two decades. However, African countries are increasingly criminalising homosexuality and implementing draconian laws with heavy punishments. The legal position of same-sex weddings is slowly changing across the world. The majority of Western countries have decriminalised homosexuality and are on the verge of legalising same-sex marriage. With a few noteworthy exceptions, the Middle East and Africa are the only regions that have begun to criminalise gay activity.
It may be said that all those working for the restoration of the LGBT community’s rights have endured a torturous and terrible journey. The struggle for the recognition of LGBT community rights began in 2001, and it was a battle between the government and the courts that lasted until 2009. In the case Naz Foundation v. Government of Delhi NCT of India, the Delhi High Court ultimately decided in favour of decriminalising homosexuality in 2009, resulting in the repeal of the previous statute. The court ruled that section 377 of the IPC was in violation of the constitution’s rights to its people, which are entrenched in articles 14, 15, and 21 of the Indian constitution. Various human rights organisations applauded the Delhi High Court’s decision, which was backed by them and deemed “progressive” since it was in accordance with evolving societal perceptions and, moreover, it put an end to an eight-year fight for gay-rights campaigners. However, as events unfolded following the Delhi High Court’s decision, numerous social, religious, and political groups with political clout expressed their opposition to the Delhi High Court’s decision, arguing that homosexuality violates Indian ethical norms and culture, and thus should be outlawed. Following these events, the Supreme Court of India overturned the Delhi High Court’s prior judgement and declared homosexuality to be a criminal offence. The court contemplated reviewing the issue in June 2018, following several petitions filed in the matter, which included important personalities such as Navtej Singh Johar and four other high-profile Indians, and which needed a court hearing. Following that, in July 2018, a five-judge constitution bench heard the matter in which Johar and four others had filed a plea. The court was given entire authority to decide the case’s legitimacy, and its judgement would be regarded final, with the court having the authority to overturn the case’s ultimate ruling. Finally, on September 6, 2018, the court unanimously ruled that section 377 should be repealed, stating that the law was irrational, arbitrary in character, and unjustifiable. The Supreme Court of India decriminalised homosexuality in the case of Navtej Singh Johar v. Union of India. The Supreme Court of India’s decision put an end to long-standing colonial legislation and marked a triumphant finish to a prolonged battle for justice.
The Navtej Singh Johar Bench also cited Dr. Ambedkar’s concept of Constitutional Morality, which the judiciary, along with other state organs, is responsible for. Justice, liberty, equality, and fraternity, according to Ambedkar, cannot be achieved unless the state’s organs are true to Constitutional Morality. When a provision is challenged as violating the Constitution’s foundations, whether by a minority or a majority, it must be dealt with fairly and in accordance with constitutional principles. If LGBTQ people are denied fundamental rights, the courts, which have served as the monument of justice for so long, will be called into doubt. If any provision is determined to violate the Constitution’s limits, it should be repealed.
When making this decision, the concepts of human dignity were also taken into account. Article 21 of the Indian Constitution protects the right to dignity, which is an essential part of the right to life. It also has a place in the international realm, as stated in the 1948 Universal Declaration of Human Rights, which stated that all people are born free and equal in dignity and rights. These human rights apply to everyone, even prisoners, killers, and criminals. In the case of Maneka Gandhi v. Union of India, Krishna Iyer, J. said that dignity is a sacrosanct human right, and that if it is violated, life loses its substance and meaning.
Marriage in India is more of a community issue than a state one, resulting in a fight between governmental policy, religion, and social norms whenever a group of individuals is allowed or denied the right to marry. Marriage has evolved from a holy religious institution to a legal contract, and from a patriarchal institution to a more egalitarian relationship based on equality and freedom. However, marriage has always been regarded as important to sexual expression and the procreation of children for the development of the community, as well as social and political connections, in the orthodox perspective. The first discussion in India about legal marriage occurred in the 1860s, when the colonial state received a petition signed by Keshub Chandra Sen of the Brahmo Samaj to legalise weddings between Brahmo Samaj members. The goal was to provide the Samaj the freedom to marry according to their own “rites of conscience.” The Governor General’s Legislative Council began proposing a civil marriage legislation for all Indians, giving little attention to the Keshubite petition’s specific desire and predicament. The purpose behind the rule was that people who wanted to go beyond religious traditions in marriage ceremonies may seek state sanction even if their families, castes, or ethnic groups opposed them. As a result, Act II of 1872, India’s first civil marriage statute, was eventually superseded by Act III of 1872.
It should be mentioned that the main motivation for the establishment of civil law for marriage was to offer legal legitimacy to weddings of individuals who had been marginalised by traditional cultures; similarly, the Indian Parliament introduced the Special Marriage Act, 1954. The right to gender determination is now protected under Article 21 of the Indian Constitution, according to the NALSA decision. The LGBTQ community needs legal recognition of their marital rights. It takes time to get societal acceptability, but over time, it has become clear that legal recognition comes first. We witnessed this in the case of reservation, when the V.P. Singh government gave the law a green light. There was upheaval all throughout the nation, and many complained, but they accepted it because of the river’s flow. Such decisions, especially in a diverse country like India, require time to work their way through societal dogmas.
Also read: Freedom of speech and sedition law in India
- But is decriminalisation of homosexuality enough?
Even in the twenty-first century, governments have established numerous laws to safeguard the rights of trans-persons, we have yet to give the community a legal sanction for their right to marry. The law can sometimes function as a spur for societal acceptance. There was a time when love marriages were unheard of. Without the blessings of the parents, a marriage would be incomplete. Couples discovered a means to gain social acceptability through legal consequences with the legislation and implementation of civil marriage laws. There have been numerous revolutions in the trans-community for improved legislation, but the ability to marry has not been a big issue. One explanation might be because, although being a secular society, India, unlike western democratic nations, has failed to fully govern marriage. Marriage is seen as a topic within the authority of the community in question. A marriage done according to any Hindu community’s rituals and traditions is accepted and recognised by Indian law. In today’s India, the majority of Hindu weddings take place without a marriage licence and are almost never registered with the government. Marriages in India are seen as a family affair that takes place inside the society. Elders’ permission is seen to be crucial in approving a marriage. This suggests that culture has a significant influence on what constitutes a marriage.
- Discrimination at every level and awareness of the society regarding the issue-
As far as discrimination against the community is concerned it is not only happening at a small level where people are not much literate, but at the international levels too. Runner Santhi Soundarajan won a medal in the 2006 Asian Games and later when her identity was revealed, she was stripped of her medal. Ultimately she could not bear the heat and committed suicide. Dutee Chand came out after the judgment, which she said gave her the desired encouragement to announce that she belongs to the LGBTQ community. The repercussions were obvious, she faced being ostracized by her parents and the village. Her parents and close ones said that she had brought shame and disgrace to the village. The purpose of quoting the above examples was to prove that homophobia is prevailing at every level of the society in India. Decriminalisation of homosexuality was just an opening of the door to a larger battle of protecting human rights and equality.
- Reformation of current laws to cater the need of the society-
Even though marriage is regarded a sacrament in India, and weddings have great religious, cultural, and social significance, same-sex couples continue to struggle for government validation and sanction of their union. In the current climate, reforming Indian personal laws would be the best approach to grant legitimacy to same-sex couples. When it comes to weddings, India has separate personal laws for practically all religions, taking into account the various ceremonies. While religious rites are a significant component of the wedding, it’s also worth noting Scottish legal expert Henry Maine’s perspective as legal counsel to the Viceroy of India in 1862. Maine passed the Native Marriage Act, which established a non-religious marriage for anybody who wanted to go that path. After getting a lot of hostility from traditionalists, his hypothesis finally led to the passage of the Special Marriage Act of 1954.
- The Hindu Marriage Act, 1955 (reformative)-
The Hindu Marriage Act of 1955, which says that a marriage can be solemnised between any two Hindus, covers Hindu, Sikh, Jain, and Buddhist unions. The Act is slightly gender-neutral, mentioning bride and bridegroom instead of male and female. As a result, it is conceivable to argue that same-sex couples can adopt this gender-neutral interpretation of the bride and bridegroom definitions. Lesbian couples have attempted this technique, with one partner dressing up as the bride and the other as the groom. However, the statutory and ordinary meaning of these phrases will not support this approach. Because it pre-determines the roles in the marriage, the popular and normalised view also reinforces gender stereotypes. Different ways to obtaining recognition of same-sex weddings under Hindu personal laws exist, one of which is the interpretation of existing legislation to allow gender-neutral definitions of these terms. Another option is to modify the existing statute to clearly include same-sex weddings.
Ruth Vanita also proposes an alternative approach, in which she advocates for the LGBT community’s weddings to be recognised as a distinct group with its own set of rituals and practises. Similar to the Arya Samaj and anti-Brahmin movements in Tamil Nadu, whose Self-Respect Movement led to the creation of their own marriage rites and customs by modifying Section 7 of the Special Marriage Act. The LGBT community might agree on a common marriage practise and seek recognition under the Act, but the problem is that LGBT people are governed by various personal laws and have diverse customs and practises. They are not unified by a goal to bring about particular modifications in Hindu marriage rites, unlike Arya Samaj or anti-Brahmin movement supporters. Among the three options described above, changing personal laws to incorporate same-sex marriages may be the only viable one. To eliminate the religious barrier, same-sex weddings must be recognised not only in Hindu personal laws, but also under the Special Marriage Act.
- Special Marriage Act, 1954 (reformative)-
The Special Marriage Act, enacted in 1954, is a secular law that allows males (at least 21 years old) and females (at least 18 years old) to marry regardless of religion. The Act intends to legalise weddings between individuals of various religions or between those who do not want to be bound by their respective laws. Instead of a religious ceremony, a Marriage Officer records the relationship under this statute. To include homosexual couples in this Act, just Section 4(c) of the Act would need to be changed. In any event, even if personal laws are changed to recognise same-sex weddings, the SMA would need to be changed to recognise same-sex marriages between people of different religions. While the proposed amendment is simple to design and does not infringe on religious freedoms, it is certain to face vociferous criticism. The SMA amendment would be comparable to legislation allowing same-sex weddings that have been passed in other nations. From Denmark in 1989 through Costa Rica in 2020, twenty-eight nations have adopted similar legislation.
In the United States, fifteen states have enacted legislation allowing same-sex weddings. There are, nevertheless, a number of anti-same-sex enactments. The Defence of Marriage Act of 1996 (‘DOMA’) was adopted by the US Congress to prevent same-sex couples married under state laws from receiving federal benefits. The challenge against DOMA before the Supreme Court was fiercely fought by Republican groups, despite the fact that the Act was knocked down by the US Supreme Court and the Obama Administration did not support it.
Such activities elicit political reaction, which varies by region. In states like Massachusetts, where the majority of citizens were in favour of homosexual marriage, there was minimal political resistance. However, the reaction to a ruling in favour of homosexual marriage in Ohio was exceedingly strong. Religious, elderly, working-class, and African-American voters overwhelmingly opposed homosexual marriage, and George Bush, the Republican nominee, had a double-digit gain in votes from these categories. Even in a country where the fight for LGBT rights has raged for decades, there is still considerable hostility to the recognition of same-sex unions. An even more severe response is highly likely in India, especially given that the country took 70 years after independence to decriminalise homosexual conduct.
A government can define marriage, but it can’t tell individuals who they should love, and it can’t have complete control over marriage or people’s perceptions of it.
Sexuality is only one of the many areas where religion and civil power collide, and marriage definitions are another. In a variety of ways, societies have dealt with the interrelated concerns of sexuality, reproduction, and marriage. Their opinions on the morality, desirability, and administrative ramifications of same-sex relationships were as varied as their opinions on the morality, desirability, and administrative ramifications of same-sex relationships. Most nations, however, chose one of just four legal answers to these intersecting difficulties before the turn of the century: to disregard same-sex relationships, to criminalise or decriminalise them, or to provide them a status equivalent to or equal to heterosexual marriage.
Most governments either opt to overlook them by classifying homosexuality as a mental illness or, like India, decriminalise their presence.
Following the Supreme Court’s decision to strike down Section 377, Guruswamy and Katju visited with a few parents of gay children to learn more about the situation. The majority of the parents were grateful with the Supreme Court’s decision. The road ahead is indeed long and difficult, but young Indians are ambitious and have their entire lives ahead of them.
Many of the petitioners emphasised how this nation, India, was as much theirs as anybody else’s throughout Section 377 hearings. They wanted the Constitution to represent their needs and rights in light of changing times, and they got their wish.
It is regrettable that the majority of people are unaware of the third group and their rights. When prominent actor Ayushmann Khurrana launched the film “Shubh Mangal Zyada Savdhan” based on the assumption that same-sex marriages are allowed in India, it was surprising. He eventually apologised, but this demonstrates the general lack of understanding about the subject.
The law, not the society, was altered. Only by repealing Section 377 was it possible to recognise LGBTQ people as a group. It did not take into account their right to marry. Non-recognition of such marriages not only adds to the stigma, but also denies them privileges that heterosexual couples have, such as the ability to adopt, maintenance after divorce, and compensation in the event of a partner’s death at work, among other things.
The Hindu Adoption and Maintenance Act, 1956, and the Central Adoptive Response Authority oversee the right to adoption. Same-sex couples are prohibited from adopting a child unless one of the partners adopts the kid as a single parent under the Act. However, this means that the kid’s second parent has no legal rights to the child. Furthermore, a single guy cannot adopt a girl kid, limiting the options available to male gay couples.
The Protection of Women from Domestic Violence Act, 2005, and Section 125 of the Criminal Procedure Code of India include maintenance; however, as the Supreme Court noted in Indra Sarma v. V.K.V. Sarma, both of these Acts are gender-specific and do not encompass homosexual unions. The Workmen’s Compensation Act of 1923, as well as other marriage-related statutes, are examples of this.
With Denmark being the first country to recognise same-sex marriage as a civil union and the Netherlands being the first to legally legalise the union, much of Europe has successfully recognised same-sex marriage in some form or another. Everyone deserves the same level of respect, rights, and decency. In the case of Justice K.S. Puttaswamy v. The Union of India, the court declared that “marriage and family are part of the individual’s sphere.” It is past time for India to give the community what they deserve, and as Indu Malhotra, J. correctly stated, “We owe an apology to the community”; but, the apology can only be counted if they are considered members of society rather than outcasts. Recognitions like civil union, civil partnership, or registered partnership would only cause confusion in a secular nation like India, which is why the only viable option is to modify the current personal marriage laws.
1) Penal Code, 1860, Section 377.
2) State of Kerala v. N.M. Thomas, [(1976) 2 SCC 310].
3) Navtej Singh Johar v. Union of India, [(2018)
4) Universal Declaration of Human Rights, 1948, Art. 1.
5) Maneka Gandhi v. Union of India, [(1978) 1 SCC 248].
6) Vanita, Ruth, “Same-Sex Weddings, Hindu Traditions and Modern India”, 91 Feminist Review 47, 47–60 (2009). JSTOR, www.jstor.org/stable/40663979. Accessed 21 March. 2020.
7) National Legal Services Authority v. Union of India, (2014) 5 SCC 438.10 SCC 1].
8) The Hindu Marriage Act, 1955.
9) Special Marriage Act, 1954.
10) The Protection of Women from Domestic Violence Act, 2005; Section 20.
11) Section 125, Criminal Procedure Code, 1973.
12) Indra Sarma v. V.K.V. Sarma, [(2013) 15 SCC 755].
13) K.S. Puttaswamy v. Union of India, [(2017) 10 SCC 1].
14) Article- Is Decriminalisation of homosexuality enough? , available at: https://www.scconline.com/blog/post/2020/10/31/is-decriminalisation-of-homosexuality-enough/
15) Article- Decriminalising Homosexuality in India, available at: https://blog.ipleaders.in/decriminalising-homosexuality-section-377-india/
Author: Saee Gunjikar, Symbiosis Law School, Nagpur
Editor: Kanishka Vaish, Senior Editor, LexLife India.