Introduction
Marriage is regarded as one of the most important aspects of a person’s identity in political, legal, and socioeconomic terms. It is a legal entity that recognizes two parties’ relationship under various personal laws. It is extremely important to the general public because it carries a lot of weight in terms of rights and responsibilities like property, inheritance, and other similar rights. These are the rights that come as a result of a marriage[1]. In today’s world, marriage is not only a civil right, but it has also gained international acceptance. In India, the right to marry has been recognized as a constitutional right, allowing an individual to choose their own spouse. When it comes to human and civil rights, many developed countries have embraced same-sex marriage. For a long time, LGBTQ people have been fighting for legal recognition of their rights. It is now a legal requirement to protect homosexual relationships on an equal footing with heterosexual relationships. The right to marry is considered a fundamental human right. However, there is no law or legislation protecting the rights of transgender people. They were given a ray of hope when the Supreme Court issued the NALSA decision.
It was the first legal attempt to recognize their gender and the fundamental rights that all people, regardless of gender[2]. Article 21 confers freedom of life and liberty, which is defined as a qualitative and meaningful life with dignity, not just physical existence, according to Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors.[3] Because the right to marry is necessary for maintaining personal dignity and living a meaningful life, courts have interpreted marriage as a fundamental right under Article 21 of the Constitution. The majority of the debate has focused on how to effectively overturn the Supreme Court’s decision in Suresh Kumar Koushal v. Naz Foundation[4], which upheld the constitutional validity of section 377 of the Indian Penal Code, which criminalizes carnal intercourse against nature’s order. The term sex includes sexual orientation, and discrimination based on sexual orientation is prohibited under both criminal and civil laws. Currently, only heterosexual marriages are recognized by personal law, effectively depriving homosexual couples of legal and social recognition, as well as the benefits that these laws confer on married people.
Common Law Marriage
Non-ceremonious marriage, also known as sui iuris marriage, informal marriage, or marriage by habit and repute, is a legal framework under which a couple can be considered married even if their relationship has not been formally registered as a civil or religious marriage. A common-law marriage is one that is considered valid by both partners but is not formally recorded with a state or religious registry or celebrated in a formal civil or religious service, as defined by the original definition. In effect, the couple is married because they present themselves as married to others and organize their relationship accordingly. The term “common-law marriage” refers to relationships that aren’t legally recognized as marriages. Regardless of any legal or religious implications, it is frequently used in a colloquial or media context to refer to cohabiting couples. This could lead to misunderstandings about the term and unmarried partners’ legal rights.
In ancient Greece and Rome, marriages were private agreements between individuals and estates. The fact that a marriage was recognized by the community defined it for the most part. The state had little interest in determining the legality of marriages. Ordinarily, civil and religious officials did not attend weddings and did not keep records. There were a variety of formal and informal ceremonies to choose from. It was fairly common to cohabit without a ceremony, and cohabiting for a reasonable amount of time was enough to make it a marriage. Cohabiting for the purpose of marriage had no social stigma attached to it. Canon law governed marriage in mediaeval Europe, and any marriage in which the parties stated that they took each other as wife and husband was valid, even if no witnesses were present.
Elements of Common Law Marriage
When a couple lives together for a period of time and presents themselves as married to their friends, family, and community, but without ever having a formal ceremony or obtaining a marriage licence, they are said to be in a common law marriage. Four of the most common requirements are listed below.
- You must live together.
- You and your partner must both have the legal right to marry (also known as “capacity to marry”)
- Both parties must be over the age of eighteen
- Both parties’ mental health must be in good working order
- They are not allowed to marry anyone else
- You must both want to marry each other.
- You must present yourself to your friends and family as a married couple
- Sharing a last name with someone else
- Addressing each other as husband, wife, or spouse in public is not a good idea
- Having joint bank accounts and credit cards is not a good idea
Indian Perspective
Homosexuality is defined as a romantic or sexual attraction between two people of the same sex group. It’s nothing more than a long-term desire to be sexually attracted to people of the same gender. A number of studies have been conducted in order to answer the question of why homosexuality exists in humans. Few biological theories suggest that an individual’s sexual orientation is influenced by genetic factors, the early uterine environment, or both in combination. It is a normal and natural variation that is uncontrollable by an individual, according to research. Some people, even in the twenty-first century, believe it is dysfunctional.
In India, it has long been considered taboo. According to most personal laws, marriage is a sacrament and a union of two souls between individuals of different sexes. Relationships between people of the same gender are frowned upon as immoral and in violation of religious beliefs[5]. Because marriage is a personal matter governed by one’s religious faith, lesbian marriages are considered unholy. People in India frequently believe it is a product of western culture and a negative influence from other countries. However, it is not a Western practise, as our ancient scriptures and literature reflect a concept that is similar. Vikriti Evam Prakriti, according to the Rigveda, one of Hinduism’s sacred texts, means “what appears unnatural is also natural.”
The Hindu Marriage Act
The Hindu Marriage Act regulates any marriage between two Hindus, as well as related issues like divorce. It applies to anyone who is a Jain, Buddhist, or Sikh and lives in India. According to the Act, marriage in the Hindu religion has a divine origin and is a sacred union of two individuals for the purpose of performing religious duties. The most practical course of action in the current climate would be to recognize marriages between people of the same gender under personal laws. At the time of marriage, the bridegroom must be twenty-one years old and the bride must be eighteen years old, according to the Hindu Marriage Act[6]. To make a similar provision, the Christian Marriage Act uses the terms man and woman. Marriage is regarded as a heterosexual union in almost all Indian personal laws. Same-sex marriages are not expressly prohibited by the Hindu Marriage Act. The following are a few approaches that can be used to recognize them under personal laws: Existing laws can be interpreted in a way that allows for same-sex marriages. Lesbian, gay, bisexual, and transgender (LGBTQ) people can be thought of as a distinct group whose traditions permit same-sex marriages. The Act will be declared unconstitutional if it is not interpreted in a way that allows same-sex marriage. Finally, make any necessary amendments to the Act.
Except for the use of the terms bridegroom and bride, the Act is gender-neutral. If one partner is designated as the groom and the other as the bride, a same-sex marriage is legal. In one case, a lesbian couple did the same thing, with one dressed as the groom and the other as the bride. The interpretation tries to blend same-sex marriage with other traditional forms of marriage, despite the fact that it violates statute interpretation rules and is inconsistent with the common understanding of the terms used (bride and groom). The second strategy is to acknowledge the LGBT community as a distinct group with its own set of customs and practises that allow same-sex marriage. Arya Samaj and Anti-Brahmin both took a similar approach. They embarked on a journey of self-respect, developing their own marriage rituals and practises in the process. It became legally recognized when section 7A was added to the Act by an amendment in 1967.
The third option is to interpret the Act in a way that allows for same-sex marriage. If not, the Act could be declared unconstitutional on the grounds that it discriminates against women based on their gender and denies them a basic right. The Delhi High Court agreed with this argument in the case of Naz Foundation v. Govt. of CT of Delhi[7]. Courts may be less willing to favor such viewpoints after Koushal. In the case of State of Bombay v. Narasu Appa Mali[8], the Bombay High Court ruled that personal laws cannot be judged on the basis of fundamental rights. The final option is to change the relevant personal laws to achieve the desired results. It is the most practical option among the alternatives. It may, however, prove to be the most difficult and controversial at the same time due to a few sections of society’s disapproving behavior toward the LGBT community.
Religious Perspectives on The LGBTQ Community Marriage
Hindu
In Hindu mythology, homosexuality and other issues were mentioned in various ways. In the Mahabharata, Shikhandi, a female character, disguises herself as a man and marries a woman. According to legend, Arjuna transforms into a woman named Brihandala while in exile and later becomes a dance teacher for a princess. “Vikruti evam Prakriti,” or “diversity is what nature is all about,” or “what appears unnatural is also natural,” according to the Rig Veda. Homosexual men are referred to as tritiya-prakriti in the Kama Sutra, a text on human sexual behaviour, and their anatomy and practices are described in detail. Lesbians are also mentioned, and they are referred to as svairini. Transgender people worship the deity Ardhanarishvara, who is the androgynous incarnation of Lord Shiva and his wife Parvati. Lord Ayyappa, the son of Lord Shiva and Lord Vishnu’s female incarnation Mohini, and Aravan, the hero whom Lord Krishna married after transforming himself into a woman, are both examples of homosexuality and transgender in Indian culture. Every year in South India, the Koovagam festival honours heterosexual and transgender Hindu women who marry. The Kutchi community in Angaar, Gujarat, has had a ritualistic transgender marriage performed during the Holi festival for the past century. It’s unusual that both the bridegroom and the bride, Ishakali, are men. As a result, these residues show that in Hinduism, homosexual unions have always been recognized.
Christian
When we look at Christian preaching, it’s clear that homosexual relationships are forbidden. “You shall not lie with a man as a woman; it is an abomination,” and “If a man lies with a man as a woman, both of them have committed an abomination they shall undoubtedly be put to death; their blood is upon them.” There are two verses in the Bible that expressly condemn homosexuality. In various verses, Genesis, Romans 1, I Corinthians, and I Timothy express discontent and contempt for homosexual unions. The clergy, on the other hand, has been welcoming to members of the LGBT community, including priests and preachers who identify as homosexuals. Churches have now routinely solemnised the marriages of same-sex couples in countries where homosexual marriages are legal. This marks the acceptance of homosexuals by the Christian world.
Islam
In Islam, the Quran is the most important source of law. According to the Quran, the people of Lot were destroyed by God’s wrath because they engaged in lustful carnal relations between two men. According to Muslim law, homosexual acts are punishable by death. However, there are numerous instances of homoeroticism in the Mughal Empire, indicating that homosexuality was tolerated at the time. Same-sex marriage is a punishable crime and a sin in Islam, according to the provisions of the Qur’an and Hadith of the Prophet (SAW). Because it destroys the family and the institution of marriage, it clashes with the natural order in which God created human beings. The four Islamic schools of jurisprudence dealt with same-sex marriage in different ways, but all agreed that homosexuality is punishable by death. In the Hanafi School, the homosexual is first punished with a severe beating, and if he or she repeats the act, the death penalty is imposed. The Hanafi distinguishes between the two acts because homosexuality may include anal sex [which is prohibited regardless of orientation], whereas adultery and fornication involve the penis/vagina (which are reproductive parts). As for the Shafi`i school of thought, the punishment for homosexuality is the same as for adultery (if he or she is married) or fornication (if not married). This means that if the homosexual is married, he or she will be stoned to death, whereas if the homosexual is single, he or she will be whipped 100 times. As a result, the Shafii compares the punishment for homosexuality to that for adultery and fornication.
Against this, the Hanbali School held that Sodomy is a form of adultery that carries the same penalty as adultery, namely death. In several hadith, the Prophet (SAW) was quoted as cursing sodomites and recommending the death penalty for both active and passive partners in same-sex acts, according to some scholars. “Whoever you find committing the sin of the people of Lut (Lot), kill them, both the one who does it and the one to whom it is done,” the Prophet Muhammad (SAW) is said to have said. He even went so far as to condemn the outward signs of homosexuality, cursing effeminate men and masculine women and telling his followers to “throw them out of your houses.” His later successors naturally adopted this anti-homosexuality ruling. A homosexual was burned at the stake by Caliph Abu Bakr. Caliph Ali ordered the stoneing of homosexuals and even had one thrown from a mosque’s minaret. These actions clearly predate any influence of Western thought on Islamic thought. The overall moral or theological principle is that a person who engages in such behavior (luti) disrupts the harmony of God’s creation and thus represents a rebellion against God.
Same Sex Marriages
The Hindu Marriage Act regulates any marriage between two Hindus, as well as related issues like divorce. It applies to anyone who is a Jain, Buddhist, or Sikh and lives in India. According to the Act, marriage in the Hindu religion has a divine origin and is a sacred union of two individuals for the purpose of performing religious duties. The most practical course of action in the current climate would be to recognise marriages between people of the same gender under personal laws. At the time of marriage, the bridegroom must be twenty-one years old and the bride must be eighteen years old, according to the Hindu Marriage Act. To make a similar provision, the Christian Marriage Act uses the terms man and woman. Marriage is regarded as a heterosexual union in almost all Indian personal laws. Same-sex marriages are not expressly prohibited by the Hindu Marriage Act. The following are a few approaches that can be used to recognize them under personal laws: However, in light of recent judicial decisions, this appears to be contradictory, as the right to marry, bequeath property, and share insurance, must all be included if we truly want to adhere to the principle of equality in the context of LGBT people. As a result, denying these basic rights solely on the basis of sexual orientation is both objectionable and unconstitutional, as it violates the constitutional rights to equality Article 14 and liberty Article 15.
Same-Sex Marriages in Certain Circumstances
Despite the fact that there is no legislation in India that regulates same-sex couple marriages. LGBT people can still marry, and the courts have previously recognised such unions. After homosexuality was decriminalised in 2009, the Haryana court effectively recognised marriage between two lesbians. The repeal of Section 377 by the Supreme Court in 2019 was a more significant decision. Under the Hindu Marriage Act 1956, a Madras High Court bench upheld a biological man’s marriage to a trans woman in 2019, and the court also ordered that their marriage be registered. Similar examples of same-sex marriage acceptance can be found in the community. Two police officers were married in a Hindu ceremony in 1988. Despite the fact that their marriage was not registered, it was accepted and supported by their families and the community. Aside from that, same-sex marriages have been taking place among the Kutchi in the small village of Angaar in Gujarat for the past 150 years, with both the bride and groom being men. It’s also worth noting that the majority of same-sex marriages, particularly lesbian marriages, have occurred among small-town, lower-middle-class, or non-English-speaking women who aren’t even LGBT activists.
Conclusion
Marriage is interpreted differently in different cultures. It is primarily a place where personal connections, such as a person’s family and sexual relationship, are recognised. It is self-evident that homosexuals face discrimination and intolerance, as well as social exclusion. It’s possible that the reasons are personal or social in nature. In 29 of the world’s 195 countries, same-sex marriages are now legal. Marriage is interpreted differently in different cultures. It is primarily a place where personal connections, such as a person’s family and sexual relationship, are recognised. It is self-evident that homosexuals face discrimination and intolerance, as well as social exclusion. It’s possible that the reasons are personal or social in nature. Marriages between gays and lesbians are now legal in 29 of the world’s 195 countries. Another option is to amend the Special Marriage Act on the grounds that it is constitutionally invalid because it discriminates against homosexuals by not legally recognising the community’s “right to marriage.” If the Koushal decision is overturned, it is likely that the Naz Foundation principle, which prohibits discrimination based on sexual orientation, will be applied to discrimination under Article 15. Various decisions, including Navtej Singh Johar v. Union of India[9], Naz Foundation, and NALSA, have taken preliminary but significant steps toward removing the stigma associated with the LGBT community. It is now up to the country’s citizens to address and enforce the principles established in these rulings. Throwing money at the hijra community and putting them down every time is an insult to humanity. Such actions and treatment will only exacerbate the struggle of the LGBT community. As a result, it is critical to enact and strictly enforce black-and-white laws for them in order to properly recognise the affected community’s human dignity.
References:
[1] Ruth Vanita, Democratising Marriage: Consent, Custom and the Law, in Law Like Love, 351, (Arvind Narrain & Alok Gupta eds., 2011).
[2] National Legal Services Authority v. Union of India & Ors, (2014) 5 SCC 438.
[3] Olga Tellis and Ors. v. Bombay Municipal Corporation & Ors, (1985) 3 SCC 545
[4] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1
[5] Sunil Khilnani, The Idea of India 180 (2004).
[6] Hindu Marriage Act, 1955.
[7] Naz Foundation v. Govt. of NCT of Delhi, (2009) 160 DLT 277
[8] State of Bombay v. Narasu Appa Mali, (1951) 53 Bom LR 779.
[9] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
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