Same-sex marriage in India
Same-sex marriage in India
Recently there has been large amount of discussion surrounding the legalisation of same-sex marriage has been. These discussions started as the Supreme Court started listening to petitions regarding same-sex marriage since April 18th.
After years of struggle and getting arrested under a colonial law, In 2018, the Supreme Court of India partially decriminalized homosexuality by striking down Section 377 of the Indian Penal Code, which criminalized consensual same-sex sexual activities. The ruling was a significant milestone for LGBTQ+ rights in India, as it recognized the right to individual privacy and upheld the principles of equality and non-discrimination. While striking down the colonial-era law, the judges also said that "history owed an apology to LGBT people and their families for the ignominy and ostracism they have faced". But even though homosexuality has been decriminalized since this judgement of Navtej Singh Johar v Union of India, the community is yet to receive any legal right to marry. The Indian legal framework still defines marriage as a union between a man and a woman. Same-sex couples in India do not have the legal right to marry or enjoy the same benefits and protections as heterosexual couples.
As the hearing of petitions started from April, the Solicitor General Tushar Mehta, who's representing the government in the Supreme Court, questioned the court's right to hear the matter at all. He said it was not an issue to be decided by five individuals - the judges - and only the parliament could discuss the socio-legal issue of marriage. But disregarding the government's objections, the judges said they would look at whether the Special Marriage Act of 1954 - which allows marriages between people of different castes and religious - could be tweaked to include the LGBTQ+ people. The petition has been receiving backlash based on Social Morality as the argument is that same-sex marriage goes against the social norms and cultures of our country. The Indian government has urged the top court to reject the petitions, saying that a marriage can take place only between a man and a woman who are heterosexual. The government also submitted another 102-page document in court saying that the "petitions merely reflect urban elitist views" and that recognition of same-sex marriage would mean a "virtual judicial rewriting of an entire branch of law", which is a highly problematic statement as there has been mentions of marriage in the LGBTQ+ community even in various mythological stories. The petitioners argued that the Constitution of India, gives all citizens the right to marry a person of their choice and prohibits discrimination on the basis of sexual orientation and their petition should be allowed since "constitutional morality is above social morality".
The community doesn’t merely seek for a declaration of their right to marry, but an interpretation of the Special Marriage Act that would allow them to register their marriage. A change in marriage laws will cause a chain effect in other subsequent laws such as the adoption laws, inheritance laws, etc. which are integral to the functioning of a family.
Currently all the LGBTQ+ community still waits for the decision of the court about their marital status as the judgement is to take place in a few months.
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