LEGALIZATION OF MARRIAGE AMONG CONSENTING ADULTS: A WAY TO SOCIAL ACCEPTANCE

Author- Harshita Gupta*

Editor- Shuvasmita Nanda

Abstract

Marriage is a fundamental civil right of a human being that flows from the idea of equality of all humans. Despite that, members of the LGBTQ community struggle to obtain legal recognition and acceptance of their marriage in our society.

This paper aims to understand the rights given to the LGBTQ community in India. This paper also provides an analysis of marriage laws in India. It further suggests how these laws can be amended to make them more accommodating to the needs of the members of the LGBTQ community. This research presents a comparative study of the concept of same-sex marriage worldwide with that of our country. This study additionally expresses the advantages of the legalization of same-sex marriage and how it can help achieve greater social acceptance.

Keywords: Marriage, legal recognition, social acceptance, marriage, equality

Introduction

“Marriage should be between a spouse and a spouse, not a gender and a gender.” [1]

-Hendrik Hertzberg

Marriage is a socio-legal contract between two individuals, which leads to the establishment of legal rights and obligations between them. In some countries, same-sex marriage is celebrated, while in other countries, it is opposed by punishments. People worldwide continue to face violence and daily discrimination based on sexual orientation, gender identity, or expression. They are physically attacked, kidnapped, raped, bullied, and murdered. It also includes the denial of marital rights to them. Societies worldwide have tried but failed to resolve the complex issue of sexuality, marriage, and reproduction among the LGBTQ community.

Society and its opinions are convoluted as few consider the legalization of same-sex marriage as a fundamental civil and human right while some consider it divergence from societal norms. The right to marry is a component of Article 21 of the Indian Constitution, which guarantees all citizens the right to life and personal liberty. Denial of the same to the LGBTQ community has been widely debated in our country for an extended period.The legitimate social acknowledgment of same-sex marriage in states shifts from an admission of the same to its criminalization if done so. The option to marry your loved ones is a crucial joy for numerous individuals living in the country, while unacceptance is making things more abhorrent.

There has been a significant expansion in the number of nations perceiving LGBTQ rights whether marriage or human rights; however, many countries still contradict the possibility of same-sex marriage, also condemning gay relationships. Because of which, there seems to be a long battle lying ahead to achieve a global consensus on recognizing marriage amongst the LGBTQ community. Legalizing will lead to a more accepting society. It will reduce homophobia and violence inflicted towards the members of the LGBTQ community.

LGBTQ marital rights in India ( with reference to same-sex marriage)

In India, the right to marry is provided under various personal laws such as the Hindu Marriage Act 1955, The Parsi Marriage And Divorce Act, the Special Marriage act, and many more. None of them explicitly states the marriage to be a union between a male and a female. In the case of Navtej Singh Johar & Ors. Vs. Union of India Secretary Ministry of Law and Justice [2] lead to the decriminalization of all consensual sex among adults including the homosexual. It was held that the criminalization of sexual acts among consenting adults led to a violation of the right to equality as enshrined under Article 14 of the Indian constitution. However, this landmark judgment only provided the fundamental right to companionship but not marriage.

In the Indian context, marriage is a socially and legally recognized union between two people, governed by personal laws or statutory regulations. Same-sex marriage is not illegal in India, i.e., it does not attract any form of penalties or punishments. But it lacks the legal sanction. Lack of legal sanction makes the members of the LGBTQ community strangers. They are kept devoid of fundamental rights such as opening a bank account, family insurance, etc. Recently a petition was filed before Delhi high court by two same-sex couples seeking legal sanction for their marriage. The petition argued that lack of legal sanction leads to the violation of fundamental rights such as the right to life and personal liberty, right to equality, and freedom of expression. Justice Menon called out the need to shed the inhibitions and realize that the laws are gender-neutral. Marriage is the right of every citizen. [3]

India is witnessing gradual progress towards providing the members of the LGBTQ community the same status as that of others in the country. Which includes the decriminalization of same-sex relations among the consenting adults[4], recognition of transgender people as a citizen of the country and providing them with all the fundamental rights and providing them with the status of the third gender in the landmark judgment of National legal service authority of India vs. Union of India[5]. Despite the fact, there is no provision for same-sex marriage registration either under the special marriage act 1954 and the foreign marriage act 1969.

Marriage laws in India

● Hindu marriage act 1955

Personal laws provide for the rules of marriage, succession, inheritance of property. The word Hindu applies to Buddhists, Sikhs, and Jain. Section 5 of the Hindu marriage act states the conditions for a Hindu marriage. The act states that marriage can be solemnized between any two Hindus. The requirements are not gendered; hence it can be extended to all Hindus irrespective of their gender identification.

In the case of Arun Kumar & Other Vs. The Inspector General Of Registration & Others[6], The court validated the marriage between a transwoman and a male both belonging to the Hindu religion. The court, in the judgment, observed that the word bride cannot be rigid and should adopt the meaning as per the present legal context.

● Special marriage act 1954

Special marriage act 1954 allows all the citizens and Indian nationals in foreign countries to marry irrespective of their caste, religion, faith. But it does not provide for the registration of same-sex marriage. It is observed that the legislators believed that the law should be made gender-neutral as no gender-specific words are used. The use of "any two persons" reflects the fact that the laws can be extended to the members of the LGBTQ community.

● Uniform civil code

Uniform civil code is seen as a hope for the members of the LGBTQ. The main change proposed is to give lesbian, gay, bisexual, transgender, and queer (LGBTQ) people equivalent rights to others, have their non-conjugal intimate relations perceived, go for adaptation, get separated and acquire property.

Same-sex marriage rights around the globe

There has been a substantial increase in the number of countries recognizing LGBTQ rights, but the same is uneven. The first country to legalize same-sex marriage was the Netherlands back in 2001. 29 countries have so far legalized same-sex marriage. The process of legalization is through legislation, court decisions, and court mandates. While it should be considered that these couples from 29 different countries don't share similar rights and advantages. The legalization of marriage in countries varied with legislation; for example, in Argentina, where the family laws are regulated by the national civil code, accepting same-sex marriage just required the change of meaning of the term marriage in the legislation.

In the USA, the constitution guaranteed marital rights to same-sex couples in the year 2015. The majority of states providing the right to marry are from western Europe, while eastern Europe lacks support for the same. South Africa is the only sub-Saharan African country where same-sex couples can marry. Same-sex relations are illicit on a significant part of the mainland and deserve death in Mauritania and Sudan, just as in Nigeria and Somalia.

Same-sex relations are also illicit in quite a bit of South and Central Asia. The exception being Bangladesh and Pakistan, who recognize the third gender in their official documentation. In certain nations, same-sex couples likewise experience additional limitations. For instance, in Taiwan, same-sex marriage is simply accessible to Taiwanese residents or residents of an outside country who perceives same-sex marriage with a Taiwanese resident[7].

Perks of legalization of LGBTQ marriage

Society often sees members of the LGBTQ community as individuals, not as couples. They fail to acknowledge the wellbeing and practical effect of the legislation on individuals, their families, and society. The denial of marital rights leads to rejection of the right to adoption, social security, economic and emotional independence. Lack of legal recognition of their relationship also prevents them from medical benefits.

Legal recognition of all marriages will strengthen the institution of marriage, leading to a more accepting society. It will reduce homophobia and violence inflicted towards the members of the LGBTQ community. In new york, 260 million was added to the economy every year following the legalization of same-sex marriage; the wedding business is a huge one. Permitting the conjugal rights will give the marriage business a monetary, given the privilege to marriage, they would be able to channel their commitment towards building society[8].

Conclusion

Although marriage is a fundamental human right recognized under the constitution and under various laws of countries worldwide, the members of the LGBTQ community continue to struggle to get the legal recognition of their relationship. This lack of legal recognition subjects them to discrimination, violence, and assault of all kinds, either physical, mental, or emotional. Despite various developments towards the inclusion of LGBTQ, India is among those countries that yet to give same-sex marriage legal recognition.

There is a substantial increase in the number of countries providing legal status to same-sex marriage despite that opposition to same-sex couples still thrives in many parts of the world where LGBTQ relationships are viewed as a deviation from natural relationships. People living in countries that provide legal recognition to same-sex relationships flourish in all areas. The legalization of marriage is not a favor but a right of the LGBTQ community, which we must help them to achieve as an educated, developed society.

REFERENCES

1. American psychological assocoation, https://www.ipthe couples to make economic decisions such as investing, healthcare etc.l.org/essay/Same-Sex-Marriage-F3X84WHESCP6 (last visited on 9th March 2021)

2.Navtej Singh Johar & Ors. versus Union of India W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016

3. In 1st response to same-sex marriage, Centre cites 5,000 yrs of Sanatan Dharma,https://www.hindustantimes.com/delhi-news/delhi-high-court-seeks-govt-response-on-pleas-of-2-same-sex-couples-for-legal-recognition-of-marriage/story-X Sk27xFFj4oTQ1 (last visited on 19/03/2020)

4. Know Thy Judge| Justice AM Khanwilkar,(https://www.scconline.com/blog/post/tag/navtej-singh-johar/ )( last visited on 23/03/2021)

5. National legal service authority of India vs. Union of India AIR 2014 SC 1863

6. Arun Kumar & Other Vs. The Inspector General Of Registration & OthersW.P. (MD) NO.4125 OF 2019 AND W.M.P. (MD) NO. 3220 OF 2019

7. Human Rights Campaign ,(https://www.hrc.org/resources/marriage-equality-around-the-world)(last visited on 28/03/2021)

8.How-legalizing-same-sex-marriages-benefits-everyone(https://www.iqphoto.com/info/how legalizing-same-sex-marriages-benefits-everyone)(last visited on 4/03/2021)

*The Author is a second year BBA LLB student from Indraprastha University.

Disclaimer: The opinions and views in this article are personal and independent opinions of the author. VAIDHA doesn't hold any liability arising out of this article.