The hearings on the controversial same sex marriage have ended. A five-Judge constitution bench headed by Chief Justice of India DY Chandrachud refused to grant constitutional validity to same-sex marriage. However, on the five-Judge panel, two Judges voted in favour of same-sex marriage, while three others voted against it. According to the Supreme Court, the issue should be resolved by the Parliament and through proper legislation process.
Back in the year 2021, the Centre opposed the petitions filed by Abhijit Iyer Mitra and three others in Delhi High Court seeking recognition and registration of same-sex marriages. The Centre says legal recognition of same-sex marriages cannot be decided by the court alone. Marriage is a bond between a biological man and biological woman. Same sex partners can live
together. But living together is not the yardstick to compare with Indian concept of family unit- a husband, a wife and children.
Whereas in 2018, a historic judgement was made by the Supreme Court of India when a five-Judge constitution bench struck down the provision of Section 377 of IPC and decriminalised consensus on same sex relations. Justice Indu Malhotra meaningfully stated that “an apology [is owed] to members of the LGBTQ community… for the ostracisation and persecution they faced because of society’s ignorance.” The step by the Supreme Court of India was meant to increase the level of social acceptance for LGBTQ. The social acceptance for homosexual relationship should be treated with equality and dignity.
Still the dignity and acceptance with equality are missing somewhere. Same sex relationships are largely defined by a term homosexuality. Still it is believed that homosexuality is a mental illness or psychological problem. Some justify that homosexuals are immoral. There are no official demographics for the homosexual population in India, but the Government of India submitted figures to the Supreme Court of India in 2012 with LGBTQ (Lesbian, Gay, Bisexual, Transgender and Queer) data according to which there are more than 2.5 million gay people recorded in India. These figures are only based on those individuals who have self-declared to the Ministry of Health. As per a fresh report, today 10% of the population of India is LGBTQ i.e., 135 million is expected to belong to the category.
There is no official demographic
data for homosexuals worldwide because homosexual relations are illegal in 74 countries. The argument which provokes us to analyse is that if there is legal freedom to same sex relationship and freedom to same sex living together then why not a freedom to marry with the person of same sex.
The arguments which oppose the same sex marriages but accept the same sex relationship have a different opinion. They figure out that same sex relationship is a particular human behaviour and can be accepted with some extent. Same sex marriage is a taboo. In this context, the Centre says to the Delhi HC that it can decriminalise a human behaviour but not a human conduct. In India, marriage is a solemnised institution. It is guided by religious sentiments, controlled by rituals and values and dependent on old age customs. Marriage is a sacrament. Marriage is not only about two private individuals and their privacy. It has a wider periphery. It includes public recognition and public acceptance attached with many statutory rights and obligations.
Apart from these, a societal morality factor plays a huge role as a deciding factor for accepting same sex marriage in India. The Centre further argues that despite the decriminalisation of same sex marriage, petitioners cannot claim a fundamental right for same sex marriages under the laws of the country. It is because 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.
The petitions were filed in Delhi HC to get recognition and registration under Hindu Marriage Act 1955, Special Marriage Act and Foreign Marriage Act. Any interference with the existing marriage laws would cause a mess with the delicate balance of personal laws in the country. So it cannot be changed. Apart from this, under Section 5 of the Hindu Marriage Act, a marriage must be solemnized between ‘only’ a man and a woman. So the same sex partner cannot marry or get recognition under this act. In India these acts are over powered by religious sentiments. That is why still dowry, marital rape, domestic violence and patriarchy dominate our family system.
We live in a society where custom and traditions are powerful than dignity and equity. A law or an order cannot bring a social change. A change can be brought by the acceptance with humility. LGBTQ activists urged the apex
court to omit man and woman terms from marriage acts and the need to introduce the term spouse instead.
The arguments which favour same sex marriages say that if same sex couple can have all the legal rights to live and love then why society is not going one step forward and acknowledging their legal relationship as marriage.
The Supreme Court of India in its recent judgment was keenly concerned about the discrimination of LGBTQ+ community in many spehres in thier lives. There are plenty of instances where homosexuals are discriminated at work places. Some are harassed on their sexual preferences and some are pressurized on the basis of their gender identity. In India, despite legal recognition, the LGBTQ community has a poor access towards quality healthcare. Medical professionals including doctors are very anxious to know the gender identity of LGBTQ while doing treatment. As far as any sex related problem or disease is concerned, same sex partner have difficulties in explaining their sexual life. There are many examples where medicals have taken a lot of time to decide the ward in which a LGBTQ should be admitted.
Bullying and abuse are the most regular harassments for homosexual students in educational Institutions. A British study on the social marginalisation of homosexuals at educational institutions revealed that 60% of the LGBTQ students had suffered teasing, ridiculing, name calling, isolation and fear, suicidal and self-harm tendency.
Society needs anti discrimination laws and gender neutrality laws for LGBTQ that will empower them to build productive lives and relationships. The first priority is to give identification to LGBTQ and create massive sensitisation on their rights and privileges, besides how the society should deal with them.
(Dr Parida is an Assistant Professor in Sociology)
