The first thing which occurs in our minds when we hear anything about the LGBTQ community is the decriminalization of section 377 of Indian penal code in the year 2018. It has been more than 2 years still the people of the LGBTQ community are dealing with the societal stereotypes which are legally supported. After decriminalization of section 377 of the Indian penal code, the relationship of people of the third gender is somewhat acceptable in the society but their marriage has not been acceptable till now.
Changes can be made easier when it is to be done on paper but society needs ages to adjust to the changes gradually through generations. Even after the constitution validates something it isn’t always accepted by society at the face value of it.
Background of Same-Sex Marriages
The news related to same sex marriages in India was at its peak when the central government opposed same sex marriages in the Delhi high court stating that it can be recognized only if it is between a biological man and women capable of producing children. The response by backed by some peculiar and unreasonable reasons. This response was in relation to the petitions filed under the Hindu marriage act and the special marriage act in 2020.
The Response of Centre
The centre backed its argument by stating that ‘Supreme Court while reading down the provision of Section 377 of Indian penal code, the Supreme Court only decriminalized a particular human behaviour but neither intended to nor did, in fact, legitimize the human conduct in question.’ The centre’s excuses to not consider same sex marriages legal do not end here. The centre is of the opinion that there exists a legitimate state interest and a societal morality that prevents same sex marriages and the validity of law is not considered without keeping in mind the Indian ethos based upon both these factors.
Moreover, the most important reason provided by the centre is the same sex marriages do not fit in the concept of a family unit. Hence, it will be interference with the sanctity of marriage as a social institution. This concept is absurd, over the years the changes in every concept is necessary for evolution, so if the government states that marriage should only contain heterosexual marriages, it is a halt in the process of evolution of society.
All these responses are based on society and still vague in some sense. So centre backed one of its responses by legal reasoning. As per the centre, the fundamental right under article 21 is subject to the procedure established by law and it cannot be expanded to include the fundamental right for same sex marriage to be recognized under the laws.
Also, it is stated that any interference in the marriage laws would cause havoc in the personal laws in the country.
Scope of the law and legality of the same sex marriage
In Toto, centre states that same sex marriages will destroy the sanctity of marriage and legally disturb the balance of personal laws. However, the Supreme Court in Puttaswamy case held that right to marry a person of one choice is integral to article 21. The right to marry is intrinsic to the fundamental right of privacy, and the right to equality under Article 16(2). It is clearly mentioned that discrimination on the basis of religion, race, caste, sex, descent, place of birth or residence or any of them. By declaring same sex marriages void or not permissible under article 21 is contradictory to article 15 and 16.
Although the right to marry is not explicitly recognized either as a fundamental or constitutional right under the Indian constitution, marriage is regulated through various statutory enactments. This right has evolved through the judicial decisions of India’s Supreme Court. And all the judicial decisions are binding on all the lower courts on the basis of the doctrine of stare decisis.
Hence, apart from Puttaswamy judgment and other judicial decisions, Navtej Singh Johar is another landmark judgment that is a must when any topic of the LGBTQ community is discussed. As per this judgment, the LGBTQ community is entitled to all the constitutional rights as the heterosexual community. This judgment paves the way for same sex marriages but the only obstacle in the way is that it is not explicitly mentioned anywhere in the constitution.
Struggles of the couples of same-sex
Dibeyendu Ganguly and Samir Sheth are same-sex couples; they have struggled over the years to get a joint bank account. Moreover the inheritance of property after the death of one of those, the property should be provided to the spouse. This is the case with heterosexual couples but when it comes to the same-sex couple, they have to register as a nominee by stating they are cousins or any other relation as these relations are not acknowledged by people of our community at present. However this cannot be the case forever and people need to accept the reality, more than the general public, this burdens the couples. The same-sex couples already struggle all their lives fighting the societal stereotypes above that the general rights and facilities which are easily available to heterosexual couples are not provided. We cannot make sure when the society evolves to accept not only same-sex relationships but also any other relations of the LGBTQ community. So, we should make sure that the legality of the issues and the facilities provided to heterosexual couples should be made available to all the couples.
Dibeyendu Ganguly and Samir Sheth are just one example, there are other couples who struggle in different aspects and are not entitled to the basic rights which are available to heterosexual couples after marriage.
The struggle does not end with the availability of marriage to same sex couples. Although it is the first step towards easing the process. The community is entitled to all the constitutional rights and more than two dozen countries have legalized same-sex marriage The LGBTQ community needs an anti-discrimination law that empowers them to build productive lives and relationships, irrespective of gender identity or sexual orientation.
Society will evolve gradually but at least we could do is provide the community with the rights they deserve.