‘Dignity’ ,one of the most important things of human life, refers to being valued and respected for what you are. Every individual in the universe deserves to live a dignified life indifferent to their gender, caste, or religion. Unfortunately , people face discrimination, inequality or injustice for their gender,caste or religion till this moden period.Scientists reach Moon , general people are struggling for equality and a dignified place in society. Women are facing inequality since birth in homes,professional lives as patriarchy is still their in our society. Not only women are facing discrimination in social lives, but also other people are there who is also getting some miserable behaviours from our civilized society. Homosexuals are one of those.
Homosexuality is still a debatable topic in the context of traditional India. Homosexuality simply means the attraction between two people who are the same sex or gender.The Concept of Homosexual activity was once a taboo in Indian society.From ancient time , relationship between a man and a women has been accepted as a ideal form.In India , Homosexual activity was taken as an Unnatural Offence under Section 377 of Indian Penal Code,and punishment for it was imprisonment or file. But on 6th September 2018, a remarkable judgement was passed by the Hon’ble Supreme Court in the case of Navtej Singh Johar Vs Union of India which decriminalized homosexual activity as it violates the constitutional rights to equality and dignity.LGBT people got the right to same-sex relationship after that judgement. But same-sex marriages are yet to be legally recognised. Many petitions were filed to legalised LGBT marriage but in a recent case in Delhi High Court, the central government said that decriminalization of Section 377 of the IPC does not automatically translate into the fundamental right to marry for same-sex couples as same-sex marriage is against the existing personal laws.Thus, the couples get a limited rights as a civil union or a domestic partnership.
Marriage is an integral part of our society, which means an association of a biological man and a woman for lifelong partnership and the procreation of children.It is sacramental. Marriage is governed by the person laws like Hindu Marriage Act 1954,Shatiat law,Special Marriage Act 1954 as the religion of the person concerned with. Registration is also mandatory for marriages. Marriage between to person not only gives emotional security and companionship but also comes with some spousal benefits like right to acquire property in joint names, joint bank accounts,lockers,nominate each other etc. Also children born out of these marriages get a respectful places in the society. In 2017, a group of people proposed to make a uniform civil code which will legalize same-sex marriage. In a miraculous case, a court in Haryana gives legal recognition to a same-sex marriage of two lesbians in 2011.But except some cases, majority of LGBT people are facing difficulties in recognition and registration of their marriage. Indian courts have passed many judgement on right to marry person of one’s choice which is integral part of right to life and liberty.In a landmark case, Shafin Jahan v. Asokan K.M. (2018), where the apex court said- “The Constitution recognises the liberty and autonomy which inheres in each individual. This includes the ability to take decisions on aspects which define one’s personhood and identity. The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual.” But decision of the Delhi High Court in 2021 seems to be very conservative or orthodox nature where there is lack of logic.By treating differently and not allowing the same-sex couple to marry legally is a discrimination towards the LGBT persons. Its the need of hour to draft a uniform civil code in India for same-sex marriages.
Why do we need it?
Till today,parents are forcing their LGBT children to marry a opposite sex person for the sake of their reputation in society, which is of no use. And here the problems begin, as both the spouse after knowing the truth, faces mental trauma and lives a life in anxiety and depression. Addition to this, their parents also forces them to carry on their marriages. As we know the fact, ‘happier mind, healthier body’ and these mental stresses cause both severe mental and physical damages to those victims of so called societal norms.These give exposure to violent deaths like suicide. Suicide rates are higher in case of LGBT youth.
Mainly transgender people get threats from their families or landlords , who even force them to live the house.Legal recognition of marriage will provide them a peaceful life.
If Court gives recognition to same-sex marriage,Adoption rate will get higher in India.India has a huge population living in orphanages and working as a child labour. In present time, LGBT couples are adopting child and taking care of them as their own child. But these parents are not getting the social acceptance as the mother or father of the children. The children also facing many troubles as they are placed in the category of irreputable social types by the makers of social regulations. Fellow children also mocks,or behaves inappropriately with them for having two same-sex parents. In this case, the children have no fault, as they learn these from the environment they are born & brought up. But marriage between two same-sex people will give those adopted children a respectful place in the society because the other children will be thought to accept both same-sex parents this way.
The older generation still sees homosexuality as a taboo.Most of the backward places believe in superstitions and sees homosexuality as a mental disorder. In this places, homosexual people are restrained from doing what they love.Some places people even physically hurt the homosexual people forcing to change their mind. The legal recognition of same-sex marriage will definitely secure rights to fight legally against those extremist for those couples.
Lack of legal marriage status creates difficulties in various aspects of the same-sex couples’ lives.They cannot transfer their properties to each others name. They even face refusal in the time of opening joint account in the bank , or nominate each other for an insurance policy. When they settled down together, another difficulty arises , i.e. difficulty to establish a permanent address. In normal situation,a wife get the address of her husband, but in case of same-sex couple, it is hard to establish.
An unified marriage law will not only provide the rights to live peacefully, but also provide legal safeguards to their rights. LGBT couple will get the right to inheritance. As we know,if there is no will, a spouse has dies intestate, the other spouse has the right to inheritance. And this right is not available for the LGBT couples. Another benefit of legally recognized marriage is getting a committed relationship. A spouse can be charged for adultery or even for divorce on some reasonable grounds. With this right to claim maintenance will also come.
In old days , people tend to need companion for emotional support. If these LGBT couples stay together as a married couple, they will not feel isolated or alone in the old age and not face mental illness or trauma in their old ages.
What is the solution?
India is a country where marriage has a religious significance and treated with honor. In Indian society, Marriage is seen as a pious bond ,which is eternal according to the Hindu personal laws. To change the mind-set of people towards Same-sex marriage, we must normalize the same-sex relationship. Though same-sex relationship is accepted by the courts, but older adults and rural people are still unaware of it. Social awareness towards these topic is must needed thing. Non-governmental organisations are doing their best to introduce these concept in the village areas. We also need the interruption of legal professionals in this topic to spread awareness among the villagers.
Positive gestures from people will also encourage.For example- We get a news that Shaadi.com , India’s one of the matchmaking websites, may start matchmaking for LGBTQ+ Community and this news has come as a ray of hope towards the persons who is searching for same-sex party to marry or the couples who wanted legal status of their marriage. If people start to come out voluntarily to encourage the same-sex couple to marry , this will build up their confidence to fight for their rights and also draw the attention of the concerned authorities.
For the legal matter, to get the judgement in favour of LGBT people, petitions should be filed with more stronger arguments, evidences etc. Catching the attention of the Government towards these matter by providing solid evidences and logic is necessary. Collecting signatures of people and a collective effort may help as nothing is impossible.
In 29 countries like Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg etc , same-sex marriage is legally performed and recognized. India also need to change its conservative attitude towards LGBT people.End of these kinds of discrimination will make our country more progressive and prosperous in near future. An uniform marriage law will not only make the lives of those people easier but also save them from mental stress and suicidal thoughts. They will be able to get the spousal benefits and constitutional safeguards. In a densely populated country like India, adoption of children will also help to control of population. For all these good reasons, Indian Judiciary should bring a Uniform civil code for marriage and legalize same-sex marriage for a better future for the country.
Author: Antariksha Dutta
Juris Centre 