Alibi and Witness: Key Differences

 Legality Of Homosexual Laws In India

Homosexual marriage is the union of two people of the same sex who recognize each other as their lifetime partner by adhering to the rites and customs that they adhere to. However, due to the conventional public cast of minds, this practice has long been met with hostility from society. Since time immemorial, the LBTQ+ community has fought for this acknowledgment, and properly so.

They are also equal citizens of the country, with the same constitutional rights and liberties as any other heterosexual Indian national. It is also regrettable that India has yet to pass laws granting this community exclusive rights to marriage, adoption, guardianship, succession, maintenance, pension rights, and health advantages that married couples enjoy but homosexual couples do not.

Without neglecting the historical cis normative and heteronormative structuring of Indian laws, the courts' challenge in dealing with the complexities surrounding LGBTQIA+ matters is not at all perplexing. At the same time, certain judgments have brought relief to the affected coterie and prepared the door for later relaxation.

Also Check: LGBT LAWS IN INDIA: AN OVERVIEW

For the first time, the Supreme Court's landmark NALSA decision in 2014 recognized their constitutional rights. Following decisions, such as Justice K.S. Puttaswamy (Retd.) & anr. vs Union of India & ors. (2017) and Navtej Singh Johar & ors. against Union of India Thr. Secretary Ministry of Law and Justice (2018), did the same for sexual minorities.

This project was initiated in response to the country's lack of sufficient legislative regulations governing same-sex marriages. Previous decisions have undoubtedly prepared the road, but the rights must now be translated into suitable legislative regulations to secure their acceptance. Recent hearings in the Delhi High Court on live streaming of proceedings in the lawsuit concerning the recognition and registration of same-sex weddings have made this necessary.

Favour

Proponents of legalizing homosexual marriage call for the inclusion of an equality clause in the constitution. They consider the lack of protection for same-sex couples to be discriminatory and hence unlawful. Several foreign courts have ruled that legislation barring or restricting same-sex marriages are unconstitutional, using the due process and equal protection clauses.

The courts explicitly stated that the right to marry, as an individual right to liberty, includes the equality component. A certain group of persons cannot be denied the right to marry provided to others unless there is a very strong reason, which the courts determined did not exist.

Some people further believe that the Hindu Law is ambiguous because it does not directly reference marriage being solemnized between two opposing sexes, but rather between two Hindus. However, the use of'she/her' pronouns in Section 13 of the act clearly indicates the legislature's aim to limit the concept of marriage to heterosexual couples only. As a result, the correct understanding of this law is highly disputed and vulnerable to multiple interpretations.

Supporters further point to the Delhi High Court's decision in the Naz Foundation case[1] that the term "sex" in Article 15 includes sexual orientation and hence forbids discrimination based on it. The Uttarakhand High Court also stated in June 2020 that same-sex couples' live-in relationships are not unconstitutional. According to the court:

"It is a fundamental right given to a person under Article 21 of the Indian Constitution, which is broad enough to preserve an inherent right of self-determination about one's identity and freedom of choice regarding sexual orientation and choice of partner."

Similarly, the Orissa High Court and the Punjab and Haryana High Court have decided in favor of the constitutional legality of same-sex live-in partnerships, citing Article 21 of the Indian Constitution.

According to Homer Clarke, a scholar, the most important purpose of marriage nowadays is that it provides emotional satisfactions that are not obtained in other partnerships. Many people regard it as a haven from the coldness and impersonality of modern life. This implies that marriage is a sacred bond that transcends gender limits and, as such, should not be denied to anyone.

Several films, like 2019's Ek Ladki Ko Dekha toh Aisa Laga and 2004's The Journey, show homosexual relationships, the latter inspired by two real-life lesbian lovers. Celebrities such as Vikram Seth and Karan Johar have openly admitted to being members of the third gender society. Swami Laxmi Narayan Tripathi of Thane, Maharashtra, was the first transgender person to represent Asia Pacific at the United Nations.

Overall, this proportion believes that same-sex marriage should be legalized since India is the world's largest democracy and the constitution guarantees equal rights and protection to all.

Opposition

On February 25, 2021, the government petitioned the Delhi High Court to dismiss the cases seeking legislation for same-sex marriages, claiming that "marriage is based on age-old customs, rituals, practices, cultural ethos, and societal values, and that there exists a legitimate state interest in preventing same sex couples from marrying."

Again, on May 24, 2021, the government asked the court to postpone hearings on four petitions, claiming that "nobody is dying as a result of the lack of marriage registration" and that their priority was urgent and imminent pandemic-related matters.

Tushar Mehta, the Solicitor General of India, stated that the terms "spouse" and "marriage" in the Citizenship Act solely pertained to heterosexual couples, thereby excluding same-sex couples. Furthermore, the government was at ease with this viewpoint.

He further claimed that because the Navtej Singh Johar[2] case decision decriminalized private, voluntary same-sex behavior, it could not be credited to granting homosexual individuals marital rights. According to another statement issued by the Union Ministry of Law and Justice, the "legitimate state interest lay in confining the institution of marriage to heterosexual couples alone in an attempt to safeguard societal decency."

The Apostolic Alliance of Churches and the Utkal Christian Council (Orissa) opposed the repeal of Section 377, claiming that "the decriminalization of Section 377 IPC will open a floodgate of social issues that the legislative domain is not capable of accommodating, as same-sex marriages would become social experiments with unpredictable outcomes."

It is stated that children from such unions will be denied the affection of either mother or father, which will have a harmful impact on their natural development. Psychologists, on the other hand, believe that it is the love and devotion of parents, not the gender, that makes the difference.

Several cases involving third-gender rights were dismissed by the courts; a brief summary is provided below:

2019- The Delhi High Court dismissed a petition under the Hindu Marriage Act of 1955 to set rules and regulations respecting same-sex laws.

Women in the state of Uttar Pradesh were denied marriage recognition by the local registrar in 2019, citing a lack of applicable legislative provisions.

2020- A lawsuit was filed in the Kerala High Court after being denied the right to marry under the Special Marriage Act, citing violations of the principles of equality, non- arbitrariness, individual dignity, and personal autonomy enshrined in articles 14,15(1), 19(1)(a), and 21 of the Indian Constitution.

2022- The Allahabad High Court dismissed a case filed by a Hindu lesbian couple seeking to marry under the Special Marriages Act. The court also denied a habeas corpus petition filed by the mother of one of the women.

Instances of Same-Sex Marriages in India

There must have been a number of same-sex marriages in the country, but only a small percentage of them have been documented. We'll look at a couple of them in this section.

In 1987, the national press covered the story of two police officers who married using Hindu rituals and customs in Central India. The majority of reported cases are from rural areas and small towns. Families may approve at times while rejecting at others.

Hrishi Mohankumar Sathawane (40), a Yavatmal native, married Vinh, reported to be a Vietnamese, on December 30, 2018, just days before the constitutional legitimacy of Sec 377 was to be decided. Another occurrence in Agra involved two lovers marrying, with one of them changing their look to that of a boy. After a week, the family discovered the truth and thrashed the other daughter. Following this, the girls threatened to kill themselves if they were separated.

Nikesh Usha Pushkaran and Sonu MS married in the precincts of Guruvayur Temple in Thrissur, Kerala, in 2018. In December of 2021, a gay couple in Hyderabad married in a same-sex ceremony.

In June 2020, a lesbian couple from Gujarat's Mahisagar area petitioned the Gujarat High Court for police immunity from their family and acknowledgement of their right to cohabit. In order to legitimize their connection, the pair signed a "friendship pact." On July 23, 2020, the High Court granted their request and directed the Mahisagar police to protect the pair.

Some examples show how determined these couples are to have their relationships legally recognized and safeguarded. As previously said, there are likely several unreported incidents, but they are in no way less serious than the instances described here. It is past time for this community's efforts to be recognized and their relationships to be legally sanctioned.