Abstract
Marriage is a ritual and socially recognized tradition in India. It is sacrosanct between two people (man and woman) and their family. Same-sex couples have no fundamental right to marry and recognition in India. The researcher has started with the introduction where he has talked in brief about whether the right to marry same-sex couples in India is a fundamental right or not and has named few countries where same-sex marriage has been legalized. Further, the researcher has talked about the “meaning of marriage in India” wherein he has discussed the meaning of marriage and talked the how the customs and law see the marriage and whether same-sex marriage is recognized by the customs and law. Further, in continuation, the researcher has discussed the “status of same-sex marriages around the world” wherein he has talked about the same-sex marriage is seen in different parts of the world and how many countries have legalized same-sex marriage and has discussed few cases related to that and has also discussed the status of same-sex marriage in India. The researcher eventually has concluded by saying that in India same-sex marriage is not legalized till now.
Introduction
The right to marry is a fundamental right under Article 21 of the Indian Constitution as part of the right to life. Individuals have the right to make the decisions as to whom to marry. Codified statutory law and uncodified personal laws govern the case of the socially recognized union of two individuals. The right to marry the same-sex couple is not a fundamental right in India and the decriminalization of Section 377 of IPC, does not guarantee the same (right to marry the same-sex couple) as only a few parts of its have been decriminalized, which says that it no longer punishes the same-sex couple in having consensual sexual intercourse but the decriminalization does not guarantee them or give them the fundamental right to marry the same-sex couple in India. Few countries around the world have legalized same-sex marriage such as Denmark, USA, Netherland, Mexico, etc. Here the same-sex marriage is allowed.
Meaning of Marriage in India
Marriage in India is a Tradition that people have followed for ages and a belief that marriage is a sacrosanct between two people, i.e., man and woman (and a relationship between two families). Different religions have different traditions for marriage, but the main motive of marriage is the same in every tradition. As the institution of family in human society is a very old institution, the same way institution of marriage is also an old institution like them. Marriage happens between man and woman to take forward their family by having child, who will further marry when they attain the legal age of marrying in India and will further take forward their family by having their child (which is known as Vansh) and so on. Codified statutory law and uncodified personal laws govern the case of the socially recognized union of two individuals in India. In other words, laws related to marriage and customs & traditions play an important role in India in the case of marriage.
Same-sex marriage is not legalized in India because it is against the belief and purpose for which marriage happens between two individuals. As we can see above that it is a sacrosanct between two people, i.e., man and woman, unlike in same-sex marriage where the two individuals will be the same, i.e., their gender identity and/or biological identity, which is against the basic structure of marriage. This is why even when the decriminalization of section 377 of being done (In the case of Navtej Singh Johar Case), only those part was decriminalized which no longer punishes the same-sex couple in having consensual sexual intercourse, but the decriminalization does not guarantee them or give them the fundamental right to marry the same-sex couple in India.
Status of Same-Sex Marriages around the World
LGBTQ have suffered various discrimination and equality problems in various parts of the world. The marriage of homosexuals is not treated as legalized unlike heterosexuals in the whole world. Netherland was the first country in the world that has legalized same-sex marriages in 2001 by passing a law. Belgium in 2003 became the second country in the world that has legalized same-sex marriages. Later from that time till now a total of 29 countries around the world have legalized same-sex marriages either through legislation, or through court decisions, or court mandating it and asked the legislature to enact the law on the same. All these countries believed that not legalizing LGBTQ marriage is discriminatory in nature and restrictions imposed on same-sex marriage should no longer prevail in their country.
In December 2005, the South Africa Constitutional Court in the case of Minister of Home Affairs v Fourie, has said that law guarantees equal protection to all citizens irrespective of their sexual orientation and by extending the definition of marriage in order to include same-sex couples in its ambit, ordered the National assembly to pass the law which will allow the same-sex couples to marry and will have legal recognition.
In 2015 the Supreme Court in the United States while dealing with the case of Obergefell v. Hodges[1] overruled the case of Baker v. Nelson[2] and stated that the State level ban which is imposed on same-sex marriage is unconstitutional. The denial of marriage licenses which were given to the same-sex couples while marrying in the State in which it was legalized and refusing to recognize those marriages in various other jurisdictions in which it is not legalized is in violation of the due process of the law and equal protection which is guaranteed to them under United States Constitution (fourteenth amendment).
But the scenario in India is different, where same-sex marriage has no recognition in the eyes of law, as the Codified statutory law and uncodified personal laws govern the case of the socially recognized union of two individuals in India and they don’t believe in and recognize same-sex marriage, as it is against the customs and traditions of marriage which is followed on and recognized since ages that marriage is the union of two individuals, i.e., man and woman. There are no legislation or law passed which will govern the same-sex marriage in India.
Earlier Section 377 was there in IPC which penalize gay couples for committing an unnatural offense. In the case of Fazal Rab vs State of Bihar,[3] the Supreme Court has given the decision on a man having a homosexual relationship with a boy and held the person liable for six months rigorous imprisonment instead of 3 years rigorous imprisonment because the Court found out that it was consensual in nature. During this time, the unnatural offense committed by any citizens in India was treated as an offense and was penalized for the same. It was later during 2018 in the Navtej Singh Johar case,[4] where the Supreme Court has decriminalized the offense that is committed under section 377 which is consensual in nature. Even while decriminalizing the act under section 377 of IPC, the Supreme Court did not say anything about the legalization of same-sex marriage in India. Parliament has also not passed any law related to the same.
The recent case of non-acceptance of same-sex marriage can be seen in India. Mr. Sengupta who is an OCI (Overseas Citizens of India) holder in India since 2011 and his partner Mr. Russell Blaine Stephens who is an American Citizen has applied for an OCI holder in India under the Citizenship Act but did not get it because they are a same-sex couple. So, they filed a case in Delhi Court for getting relief for the same. Delhi High Court has issued a notice (on 6th of July 2021) to the Central government on a plea seeking recognition of same-sex marriage under the Hindu Marriage Act, Special Marriage Act, and Foreign Marriage Act.
Conclusion
To conclude we can see that in India, the right to marry is a fundamental right that is guaranteed to the citizens under the Indian Constitution and the individuals have the right to choose their own partner but this right is recognized for the person who marries the opposite sex people as the customs and belief and definition of marriage is prevailing in India but same-sex marriage has no legal recognition in the eyes of law and no laws are made which will govern same-sex marriage in India. Few countries around the world have given legal status to same-sex marriage and they believe that law guarantees all citizens equal rights in the country, so LGBTQ should also have the legal right to marry same-sex couples if they want.
[1] Obergefell v. Hodges, 576 U.S. 644 (2015).
[2] Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971).
[3] Fazal Rab vs State of Bihar, 1983 AIR (SC) 323.
[4] Navtej Singh Johar & Ors. v. Union of India, (2018) 10 SCC 1.