It is said, “love has no boundaries”, and thus, same-sex marriage is no longer a weird fare and just limited to heterosexual couples. Many countries have legalized the marriage of heterosexual couples, giving them the freedom to enjoy their rights equally to the LGBTQ+ community. However, the Indian Constitution still has not shown a green flag to the idea of heterosexual marriage.
LGBTQ and Hindu Mythology
It can be established that homosexuality was prevalent in ancient India from the epics of Ramayana, Mahabharat, and the temples of Khajuraho. Many instances of deities transforming into the opposite gender to serve a sacred purpose have been mentioned in these epics, such as the ‘Ardhanarishvara’. Lord Vishnu took the form of the charmer, Mohini to trick the demons to hand over ‘Amrita- the elixir of life’. Even ‘Arjun’, one among the Pandavas, is an example of gender variance where he took the form of ‘kliba’, a member of the third gender as a result of the curse, and took the name of ‘Brihannala’, which helped him survive the last year of exile. Many other instances have been mentioned in the epics about such gender variance and homosexual interactions, although it had sacred purpose than mere sexual pleasure.
Recently, the Central Government opposed couple in Delhi supreme court stating that a wedding in India is often recognized as long as it’s between a “biological man” and a “biological woman” capable of producing children. Living together as partners or during a relationship with a same-sex individual is “not comparable” with the “Indian family unit concept” of a husband, wife and youngsters, the govt said, arguing that the institution of marriage features a “sanctity”. “In our country, marriage necessarily depends upon age-old customs and societal values” despite statutory recognition of the connection of marriage between a biological man and a biological woman,
However, on 6 September 2018, the Supreme court of India decriminalized gay sex marking a historic judgment in the Indian judiciary. The court defined love to be without boundaries.
Supreme Court’s judgment within the Navtej Singh Johar case “does not extend the proper to privacy to incorporate a fundamental right within the nature of a right to marry by two individuals of the same gender”. The government also said that while the court can look over existing rights for this, it cannot create a new right. It is not “permissible” for the court to override the legislative intent regarding limiting the legal recognition of marriage to heterosexual couples, the Centre said. Marriage between two individuals of the same gender is “neither recognized nor accepted in any uncodified personal law or any codified statutory law”, the Centre said.
“Any interference with the existing marriage laws would result in the balance of personal laws within the country and it would bring further irregularities in laws governing marriages of Christian or Muslim faith”.
The reply was in response to 3 petitions filed last year. In one among the petitions, Dr. Kavita Arora, a psychiatrist, and Ankita Khanna, a therapist, sought enforcement of the fundamental right to ‘choice of partner’, after their application for validation of marriage under the Special Marriage Act was rejected by a wedding Officer in Delhi because they’re a same-sex couple.
The second petition was filed by Parag Vijay Mehta, a foreign Citizen of India cardholder, and Vaibhav Jain, an Indian citizen, who got married in Washington DC in 2017. His application was rejected for registration of marriage under the Foreign Marriage Act by the Consulate General of India.
The third PIL was filled by defence analyst Abhijit Iyer Mitra and three others, for recognition of same-sex marriages under the Hindu Marriage Act.
The government in response to the three petitions seeking validation of same-sex marriages said there exists a “legitimate State interest” in limiting the popularity of marriage to persons of the opposite sex. It is important to keep in considerations of “societal morality” which is relevant in validating law and based upon the Indian ethos the Legislature has to enforce societal morality and public acceptance, said the Ministry of Law and Justice says.
A marriage in India majorly depends upon “age-old customs, cultural ethos, rituals, practices and societal values”, which contributes to the Section 377 of the IPC covering homosexuality, the Supreme Court had only decriminalized “a particular human behavior” but “neither intended to, nor did actually, legitimize the human conduct in question”, the Centre told the Delhi High Court.
Homosexuality has always been an affair of controversy for society. But having a different sexual orientation than the maximum of the world’s population should not be a reason for not providing them with the same rights as others.
Many such people are afraid of accepting their sexual orientation in front of society because of the humiliation and social exclusion they have to face.
An anti-discrimination law needs to be enforced that empowers the LGBTQ community and helps them build a productive life and relationship irrespective of gender identity or sexual orientation. The focus should be placed on changing the mindset of the state and society and not the individual.
Many countries have already legalized same-sex marriage. Now, India should also step forward with a progressive mind and legalize same-sex marriage as it is causing no harm to other individual’s rights in any way.
Same-sex attraction has existed since ancient times and is not something new that has arrived unprecedentedly with the new trends and styles of living.
Same-sex marriages should be legalized and given the right to be performed like every other marriage. The rituals and traditions should not differ between same-sex marriage from a heterosexual marriage.
When the government can decriminalize homosexuals or same-sex couples to indulge in sexual acts, then why can’t same-sex marriage be legalized? Marriage is a sacred practice of two souls unite for the love and care of each other, why can’t homosexuals wanting live a married life with the one they want to spend the rest of their life be allowed to perform this sacred ritual? India can’t just develop with the advancements of industries, innovation of technologies, and broadening of roads, but has to broaden up its thinking and accept the ones among them who are not in majority. This taboo needs to be acknowledged and the individuals should be given the same rights as others to be enjoyed.