Anthropology of Marriages in India: Are Same-Sex Marriages Need of the Hour?

Introduction:

According to the Universal Declaration of Human Rights, the founding document of human rights law, “the family[1] is the natural and fundamental group unit of society and is entitled to protection by society and the State”. The family is the fundamental structure notwithstanding for the assurance of human rights, including the privileges of freedom and respect. Notwithstanding, for the transgender networks, the experience of the family is alarmingly extraordinary. The establishment of the family assumes a critical job in the underestimation of transgenders as opposed to shielding their youngster from the viciousness exacted by the more extensive society, the family in actuality gives a field to showcase the prejudices of the more extensive society. With regards to outrageous brutality and narrow mindedness, the main social space accessible for transgenders in India is the transgender network.

In today’s era of the 21^st century, many countries are recognizing the rights (physical intercourse, marriage, etc.) of the LGBT community and recently Supreme court of India decriminalizes consensual intercourse between persons of the same-sex in the case of Navtej Singh Johar and Others V. Union of India[2] and join the community of nations where homosexuality is legal but not join the community of nations where the marriage of homosexuals is also legal. India is a vast nation with a huge population and has a very diverse culture and all persons are given the freedom to do marriage, divorce, inherit property by their respective personal laws and the LGBT people also has some religion but they cannot use their religious specific personal laws to do marriage or inherit the property because all law only talks about a marriage between a male and a female. India is a progressive nation and there is a need for laws regarding same-sex marriages and laws of inheritance for the transgender community so that the LGBT community can be fitted under article 14 of the Indian Constitution which talks about the Right to Equality.

In the light of the above issues this paper will discuss the following points:

1. Why same-sex marriage should be recognized in India?
2. What are the marriage laws applicable during the time of same-sex marriage and what are the problems to be faced after same-sex marriage?
3. How divorce can happen in the case of same-sex marriage and what are the problems to be faced during such divorce?

Why recognition is necessary?

Same-sex couples’ personal and committed relationships, like heterosexual couples’, give reciprocal support and constitute the bedrock of family life in our society. In the event that a lawful responsibility, duty, and security that is marriage is beyond reach to LGBT people group as a class, the stain of dishonor that follows on people and families contradicts the fundamental sacred obligation to fairness and right to life on the grounds that sexual self-sufficiency and the option to pick a partner is an inborn part of the right to life and right to choose[3]. While the Supreme Court of Canada has given marriage an expansive construction by accepting same-sex unions (in Re: Same-sex marriage ), it has also made the following observation:

“The “frozen concepts” reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”

Until the end of the 20th century, there never was a nation or a culture that recognized the marriage between the people of the same-sex, so maybe one of the reasons can be that most of the nations were operating independently based solely on irrational stereotypes and prejudices and it takes time to see stereotypes and to see the common humanity of people who are once ignored or excluded, the other reason can be that there arises no need for such law in many nations. But as the world is moving forward, people who are earlier afraid to enter into a same-sex relationship are now entering into such relationships and also asking for the decriminalization of same-sex consensual intercourse where it is considered to be a crime like in India where recent Supreme Court judgment[4] decriminalize section 377 of Indian Penal Code, 1860. The first nation to recognize same-sex marriage in the Netherlands where same-sex marriage is included in marriage laws[5]. Now many legally developed nations like the United stated, Canada, New Zealand, Ireland, etc. recognizes same-sex marriages. India is a progressive nation and should take steps to recognize same-sex marriage.    

Recognition of same-sex marriage is also important because suppose two persons of same-sex do the marriage and the same-sex marriage is not recognized by the state then there can arise many problems for the couple like-

1. Maybe society will not allow them to live as a couple and may arise cases of honor killing.
2. Maybe they will not be allowed by the state to do adoption of a child.
3. If there arises any dispute between the couples, how will they approach the court because their marriage is not recognized by the state and because marriage is not recognized by the state then there is no marriage and the court will also say that when there is no marriage then there arises no problem of marital disputes?
4. They will fear to live in society freely and openly and fear to participate in community gatherings as couples. Equal participation will not be there.
5. The same-sex couple could not form their separate Joint Hindu Family because their marriage is not recognized by the state and therefore cannot avail the benefits also which a Joint Hindu Family gets.

If one says that allowing same-sex marriage would harm the conventional marriage because they can’t procreate then it is not correct because many heterosexual couples also don’t want a child after marriage, some couples are there who cannot procreate, yet they marry and suppose there is a state which thinks that the sole purpose of marriage is only procreation and not emotional commitment and support than the state will say that we are not giving marriage licenses to anybody who doesn’t want children, so when people come and ask for a marriage license they just ask a simple question: do you want children? And if the answer is no, the state says no marriage license for you, then it is again unconstitutional because it is an invasion of the privacy of the couple. Therefore procreation cannot be solely regarded as the only purpose of marriage. A couple in a same-sex marriage knows that they can’t procreate but still they want to marry then it can be inferred that there cannot be a more noble purpose than to remain together forever and that’s the sacredness of marriage and they understand it. For them marriage doesn’t mean only procreation, they want to enjoy other attributes of it also. In the case of Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors.[6] Supreme Court of India while making a comparative analysis between Section 375 and Section 377 of Indian Penal Code, 1860 said that:

“In the contemporary world where even marriage is now not equated to procreation of children, the question that would arise is whether homosexuality and carnal intercourse between consenting adults of opposite sex can be tagged as ‘against the order of nature’. It is the freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature. Therefore, sex, if performed differently, as per the choice of the consenting adults, does not per se make it against the order of nature”  

Why same-sex marriage can’t come under the ambit of the present law on marriage in India?

All the personal laws in India which talk about marriage or divorce only talk about heterosexual marriages and not about same-sex marriages like-

1. In The Hindu Marriage Act, 1955 it is one of the conditions that “the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage”[7] which means that for marriage could be conducted a bride and bridegroom of the legal age are necessary and there is no space for a Hindu same-sex couple to marry under Hindu Marriage Act, 1955.
2. In The Parsi Marriage and Divorce Act, 1936 it is stated that “Punishment of bigamy – Every Parsi who during the lifetime of his or her wife or husband, whether a Parsi or not, contracts a marriage without having been lawfully divorced from such wife or husband, or without his or her marriage with such wife or husband having legally been declared null and void or dissolved, shall be subject to the penalties provided in sections 494 and 495 of the Indian Penal Code for the offence of marrying again during the lifetime of a husband or wife”[8] which means that offence of Bigamy can only be done in a heterosexual marriage because the words “his or her wife or husband” denotes that the act is talking about a husband cheating on his wife and wife cheating on her husband, so the Parsi Marriage and Divorce Act, 1936 does not cover Parsi same-sex marriages.
3. In the Christian Marriage Act, 1872 when reading section 18 it states that parties intending to marriage i.e. man and woman until any one of them i.e. he or she declares that “there is not any impediment of kindred or affinity, or other lawful hindrance, to the said marriage, and, when either or both of the parties is or are a minor or minors”[9] a certificate of marriage cannot be issued. Also in section 60(1) of the Christian Marriage Act, 1872 it is one of the conditions that the age of the man intending to be married shall not be under twenty-one years, and the age of the woman intending to be married shall not be under eighteen year which also clarifies that the Christian Marriage Act, 1872 also talks about only heterosexual marriages and does not cover Christian same-sex marriages.
4. In the Special Marriage Act, 1954 one of the conditions for solemnization of marriage is that “Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the form specified in the Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Officer”[10] and the Third Schedule indicates that groom needed to make one of the presentations that he isn’t identified with the lady of the hour inside the levels of disallowed relationship and lady likewise needed to announce that she isn’t identified with the spouse inside the levels of precluded relationship which implies that the Special Marriage Act, 1954 just focuses on the marriage between male and female and its arrangements are not that a lot more extensive than can cover same-sex relationships moreover.
5. The Muslim Women (Protection of Rights on Divorce) Act, 1986 and 2019 Act[11] which criminalizes “triple talaq” both starts with the lines “An Act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto”[12] which states the purpose and object to be achieved by this act. In these lines the words used are “Muslim women who have been divorced by or have obtained a divorce from, their husbands” makes it clear that Muslim marriage laws also talk about heterosexual relationships only and recent will not able to cover the same-sex relationships.

From the above analysis, it is can be interpreted that no personal law in India can cover same-sex marriages.

Problems to be faced after Same-Sex Marriage

The problems discussed below are assumed after same-sex marriage is recognized in law.

1. If suppose the same-sex marriage is done then unlike the opposite-sex marriages in which bride goes to the house of the bridegroom, in same-sex marriage both are of the same gender than who will go to whose house may become a problem for the same-sex couple.
2. If suppose during the same-sex marriage conflict arises between the couple and they wish to go for the divorce then who will give maintenance to whom will again be a problem and also the problem regarding spousal property can arise after a divorce.

Conclusion

In the United States of America, its Supreme Court in the judgment of Obergefell versus Hodges[13]recognized same-sex marriages and give legal status to them at par with heterosexual marriages. But in India judiciary cannot do it because same-sex marriage is a matter that comes under the ambit of personal laws in India and Courts in their various judgments have denied that the personal laws fall within the coverage of Article 13 of the constitution of India like in case of State of Bombay v. Narasu Appa Mali[14] , Gajendragadkar, J., observed:

“……….it is competent either to the State or the Union Legislature to legislate on topics falling within the purview of the personal law and yet the expression “personal law” is not used in Article. 13, because, in my opinion, the framers of the Constitution wanted to leave the personal laws outside the ambit of Part III of the Constitution (viz., Fundamental Rights). They must have been aware that these personal laws needed to the reformed in many material particulars and in fact they wanted to abolish these different personal laws and to evolve one common code. Yet they did not wish that the provisions of the personal laws should be challenged by reason of the Fundamental Rights guaranteed in Part III of the Constitution and so they did not intend to include these personal laws within the definition of the expression “laws in force”.

The views of Bombay High Court were reiterated in various Supreme Court[15] and High Court[16] judgments. Therefore, the courts cannot give recognition to same-sex marriages and thus the duty devolves on the legislature to give legal status to same-sex marriages. Keeping in mind the sacredness of marriage and the benefits out of it which the couple enjoys same-sex marriages should be recognized.

Since the Indian legislature is still struggling with the Transgender bill only, recognition for same-sex marriage would be a very far cry. Yet, to accomplish the reason for Articles 14 and 21 of the Constitution of India and giving the LGBT people group what they merit, same-sex relationships ought to be legitimately perceived.

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References:

[1] Article 16, Universal Declaration of Human Rights, 1948

[2] AIR 2018 SC 4321

[3] Shakti Vahini v. Union of India,(2018) 7 SCC 192; Shafin Jahan v. Asokan K.M., AIR 2018 SC 1933

[4] Navtej Singh Johar and Others V. Union of India, AIR 2018 SC 4321

[5] Dutch Civil Law (DCL), Book 1, Title 1.5

[6] Supra at page 1, Para. 226

[7] Section 5(iii) of Hindu marriage act, 1955

[8] Section 5 of the Parsi Marriage and Divorce Act, 1936

[9] Section 18(a), Christian Marriage Act, 1872

[10] Section 11, Special Marriage Act, 1954

[11] Muslim Women (Protection of Rights on Divorce) Act, 2019

[12] Purpose and Object of the act, The Muslim Women (Protection of Rights on Divorce) Act, 1986

[13] https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf , (last accessed on 11:30 p.m., 18^th August, 2019)

[14] AIR 1952 Bom 84

[15] Krishna Singh v. Mathura Ahir, AIR 1980 SC 707

[16] Srinivasa Aiyar v. Saraswati Ammal, AIR 1952 Mad 193; Ram Prasad v. State of UttarPradesh, AIR 1957 All 411