Legality of Same Sex Marriages / Relationship in India
In Indian mythology, marriage is considered as the most sacred institution. It is a
sacrament union meant for performance of religious and spiritual duties.
According to Satpatha Brahmana
"The wife is verily the half of the husband. Man is only half, bot complete until he
marries."
Historical Retrospect:
Marriage has existed in almost every culture of the world in one form or another. It
provides social sanction to physical union between a man and a woman which results in
foundation of a family.
Family is the basic unit of society which results in shaping the society at large. Marriages
in India is between two families rather two individuals.
However Homosexuality has a long past in India which can be confirmed from ancient
scriptures.
With the emerging domination of patriarchy, homosexuality became to subdue.
Manusmriti provides for penalties like high monetary fines or cast loss etc. for gay and
lesbian behaviour.
During colonial rule, western point of you strongly conditioned sexuality.
Over the last century the definition of homosexuality changed significantly. It is no longer
viewed as an irregular activity after 1974 and excluded from psychiatric ilness
classifications.
In 2018 by Navtej Singh Johar vs Union of India , Indian Courts decriminalised
homosexuality.
In 1994 South Africa becomes the first government to recognise the freedom of homisexuals.
Australia, Netherlands, Switzerland ,Germany ,Luxembourg, Iceland ,Denmark ,Sweden and New
Zealand, US, UK, Taiwan, Sweden, Mexico, Ireland etc. also recognise it.
On the other hand, countries like Jamaica, Kenya, UAE, Pakistan, Afganistan, Indonesia,
Soudi Arabia, Iran, Iraq, Egypt, Palestine, Singapore, Myanmar, Mauritius, Nigeria etc. have
not recognised it.
With the changing time and trends, advancement of technology and impact of westernization,
there is emerging concept of same sex marriages.
Legatility of LGBTQ+ marriages:
Same sex marriages refers to marriages between two individuals of same gender. In India same sex marriages are not legal. There are cases proceeding in Supreme Court making efforts to recognise and legalise them.
Number of LGBTQ+ community in India:
According to globally recognized Kinsey Scale, Indian and international activists estimated that it numbers around 135 million people i.e. 10% of India's population of 1.4 billion. India is believed to be home to world's largest LGBTQ+ community.
Judicial Approach towards LBGBTQ+ community:
NALSA vs Union of India, 2014 SC
The Supreme Court upheld the right of transgender persons under article 14, 15, 19 and 21 of the constitution and directed the centre and state governments to grant legal recognition to their gender identity such as male, female or the third gender.
Naz Foundation PIL, 2001 Del.H.C.
Naz foundation,a Non governmental organisation filed a PIL challenging the constitutionality
of section 377. Delhi High Court declared Section 377 unconstitutional.
However in 2013 Supreme Court of India over turned the Delhi high courts judgement and
reinstated Section 377 criminalising homosexuality again.
Navtej Singh Johar vs Union of India, 2018 SC
A five judge bench of supreme court decriminalised homosexuality and struck down Section 377
of Indian penal code declaring it unconstitutional which criminalized homosexuality.
However decriminalising homosexuality did not mean legalizing same sex marriages.
In 2017 the Delhi High Court declared that same sex couples are entitled to be in a
stable relationship but did not legalize same sex marriage.
Transgender Persons (Protection of Rights) Act, 2019:
The said Act was passed in 2019 which aimed to protect the rights of transgender individuals
and provide them with legal recognition.
At present same sex marriage is not recognised in India.
Development in 2023:
The Supreme Court of India is hearing case regarding legal recognition of same sex marriages. A five judge constitutional bench comprising of Chief Justice DY Chandrachud and Justices SK Kaul, SR Bhat, Hima Kohli and PS Narasimha reserved judgement.
