Same Sex Marriage in India

Alok Aanand

SAME SEX MARRIAGE 

Marriage is considered as the purest bond. It is the legally recognized union of two people as life partners and personal relationship. When we say “two people”, it usually means a male and a female but with the changing times we see that it is not always a male and a female by which I mean it can be two males or two females. Now, this can be considered normal in other countries but in country like India, gay marriage is still unacceptable. In this blog, I shall discuss about the same sex marriage, its possibilities and rights of LGBT (lesbian, gay, bisexual and transgender) couples. 

PROBLEMS OF LGBT 

Homosexuality was considered a taboo in Indian Society. The Section 377 of Indian Penal Code states that sex or marriage between the same genders is punishable by law. It was on September 6, 2018, the supreme court of India legalised Section 377, thereby making gay sex legal. It was a long fight and struggle for LGBT people to get their rights and respect in a society. Earlier, they were not even considered as normal people and were discriminated in every aspect. On July 2, 2009, the Delhi Constitution held the provision to be unconstitutional in Naz Foundation vs. Govt. of NCT of Delhi. 

ON 11 December, 2019, the Supreme Court of India overturned the ruling. Many foundations such as Naz Foundation, The National Aids Control Organisation, National Human Rights Commission of India, Union Health Ministry and etc. have stood for homosexuality and fought for decriminalizing it in India. After all these movement we see the mentality of people slightly shifting and the gay couples can now live their life with dignity. 

CHALLENGES FACED BY SAME SEX COUPLES 

Same sex marriages are still considered punishable in many parts of the world. In India, same sex marriage was a criminal offence till 2009 under Section 377 of IPC which thereby made it an offence for people of same sex have carnal intercourse against the order of nature. In a research it was seen that the law was used to harass sex workers, HIV/AIDS prevention activists and other LGBT groups. As per the document reports 4 men were arrested in 2001 and another four in year 2006. Not only this, homosexuals also have to face a bitter world outside as the imagination of two people of same caste marrying draws a picture of hatred and disgust. 

Marriage in India has a ritual of dowry which is too a criminal offence but is encouraged in many Indian societies. Now if we talk about same sex marriage, then the question arises that who is entitled to dowry and thus same sex marriage discourages dowry. Not ignoring the face that same sex marriage is considered unnatural. Living a life of dignity and getting respect was one of the biggest challenge for same sex couples especially in a country like India which believed that homosexual marriage will destroy the concept of a traditional family marriage. 

HOMOSEXUALILTY AND RELIGIOUS BELIEVES 

Hinduism If we see history then we will find enough existence of homosexuality in ancient history of India. Rig-Veda which existed back in 1500 BC and ancient sculptures found in temples at Khajuraho, the character of “Sikhandi” in Mahabharata depicts homosexuality clearly. With the advent of British Colonialism and Vedic Brahmanism, homosexuality lost its existence. The Manusmriti provides punishment for females engaged in sexual activity with another female. Later with the destruction of images on the buildings in British period the sexual expressions became more systematic. 

Muslim Islamic law is derived from both Quran and Muhammad Sunnah. Under Islam, homosexuality is just not considered a sin, but a punishable crime against God. Muhammad said anyone engaged in such activity should be killed and also that they should be thrown out of houses. His followers adopted the same thoughts and thus, even now homosexuality is unacceptable. 

Christianity Acceptance of homosexuality is still considered as a dilemma in Christianity. There is two group of which one condemns the idea as a whole, whereas other group believes that the concept of homosexuality should be accepted. The modern Western nations have legalised homosexuality. However, some people still condemn homosexuality in Christianity. 

HOMOSEXUALITY SHOULD BE LEGALISED 

There are many reasons which stands in favour of homosexuality. Stated below are some of the reasons:- 

Violation of Article 21 which stands for Right to Liberty which includes private consensual relationship and thus prohibits the state from interfering with the private activities of the Individual . In the case National Coalition for Gay and Lesbian Equality Vs. Ministry of Justice, the South African court declared that everyone has a right to private intimacy and thus give rights for a nurture human relationship without any hindrances. This clearly states that right to privacy has been accepted in favour of lesbians and gays.       

Criminalization of homosexual conduct is meaningless and arbitrary. Everyone has a right to equality. Section 377 of Indian Penal Code criminalizes all the sexual activities which is unnatural and against the nature of law and thus punishes unnatural sex. Natural sex is one which is performed for procreation and so the non-procreative sex is considered a crime. The legislative intent of creating a public code of sexual ethics has no rational link with the classification created and so is totally unreasonable, vague, is discriminated and is based on the stereotype opinion that sex is only for procreation.       

Article 15 forbids discrimination on the basis of sexual basis which includes sex. Section 377 discriminates on the basis of sexual orientation to which Article 15 says that there is no behavioural pattern attached to the gender. Thus, Section 377 discriminates against the homosexuals.       

Section-377 assaults the enjoyment of civil laws and homosexual. Section 292 of Indian Penal Code penalizes obscenity and so any writings about the homosexuals can be criminalized as it is treated as immortal. 

CONCLUSION 

Love comes in all forms and it would be unjustified to say that a person cannot love someone just because of their gender. The world is developing and so should be the mentality of people. No social forms can be used to restrict people from asserting their fundamental rights. Everyone has a right to equality and every individual deserves to live a life of dignity. Same sex marriage is found to be more of a religious debate than political one. There is nothing wrong in homosexuality, rather it is just a mentality. A person has all the rights to lead his or her life the way then want despite of their sexuality. Thus legalising same sex marriage is a way to move forward in the direction of human rights.