With the progressive judgment of Navtej Singh Johar vs Union of India (UOI) homosexuality was decriminalised in the country. However, questions regarding same-sex marriages remained unaddressed. No marital law in India expressly recognized same-sex marriages.
The Centre, on February 25, 2021, opposed a batch of petitions seeking the recognition and registration of same-sex marriages in the country and told the Delhi High Court that living together as partners and having a sexual relationship with same-sex individuals is “not comparable with the Indian family unit concept of a husband, wife, and children.”
The Indian society which promotes the importance of marriage is completely hypocritical when it comes to same-sex marriage, unwilling to change old regressive laws which restrict equal legal rights to LGBTQIA+ partners.
“By and large, the institution of marriage has a sanctity attached to it and in major parts of the country, it is regarded as a sacrament. In our country, despite statutory recognition of the relationship of marriage between a biological man and a biological woman, marriage necessarily depends upon age-old customs, rituals, practices, cultural ethos and societal values,” the Centre told the court in response to the petitions seeking recognition and registration of same-sex marriages under the Hindu Marriage Act, the Special Marriage Act, and the Foreign Marriage Act.
According to many text, in the old Vedic age, it was said that marriage was meant for doing a good deed and for the attainment of ‘Moksha’. “Marriage in Hinduism is heavily endowed with religious sentiments.” These customs are so strong that they often fail to recognise the concept of equity. With the progress in society and enactment of the Hindu marriage act, it can be said that the concept of marriage has become a contract for benefit of both parties.
A Public Interest Litigation (PIL) was filed in the Delhi High Court seeking the declaration of marriage rights for the LGBTQIA+ community under the Hindu Marriage Act, 1955. The petitioner states that “the Act allows marriages between “two Hindus” without any discrimination between heterosexual and homosexual couples. Under Section 5 of the Act, the conditions of a valid Hindu marriage, that a marriage must be solemnized between ‘only’ a man and a woman was seen to be mentioned.”
Still, when it comes to same same-sex partners, they can’t get married and register themselves under this Act.
The Gender Neutrality In The Special Marriage Act
The Special Marriage Act provides for registration of a “special form of marriage in certain cases”. According to its Statement of Objects and Reasons, the Act provides for “a special form of marriage which can be taken advantage of by any person in India and all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess.”
Thus, the Act is not restricted only to citizens of India but is also applicable to all persons from all walks of life, whether Indian or not, atheist or agnostic, gay or straight, bisexual or bi-curious, homophobic or homogenous. Sections 4 to 14 of Chapter II of the Act deals with the Solemnization of Special Marriages. Section 4 sets out the “Conditions relating to solemnization of special marriages.” It starts with a non-obstante clause that overrides “anything contained in any other law for the time being in force relating to the solemnization of marriages.”
Challenges
The important question which needs to be highlighted is, if we have the freedom to love who we want after decriminalisation of Section 377, then why not the freedom to marry?
Individuals from the LGBTQIA+ community often still face discrimination at jobs, schools, colleges and at homes due to the stigma. “Even health care professionals have been accused of discriminating towards individuals identifying as queer, at times classifying homosexuality as a mental health issue.”
In daily walks of life, simple and important things like opening a joint bank account or getting family health insurance, being actively involved in one’s spouse’s medical care, or adopting children end up being challenging for same-sex couples. To add to this and talking in terms of basic rights, including economic rights, adoption rights, and protection against domestic violence, these are just some things that fall within the purview of ‘marriage’.
“Legalizing same-sex will open doors to providing the community with equal opportunity and a discrimination-free space. “The path towards this transition involves both legal and social change. While legal hurdles might now become relatively easier to overcome, deeply rooted social biases and stigma are more difficult to tackle.”
To create a space of equity and justice the courts will have to go against current traditional societal norms for justice to prevail.