When Same-Sex Relationship Is Legal In India Then Why Not Same-Sex Marriage?

The issue of giving legal recognition to gay marriage is not only related to the right to be a citizen, but also comes under the ambit of natural rights as a human being. 

According to estimates, there are about 140 crore citizens in India at present. As a citizen, everyone’s right to a dignified life is not only his/her constitutional right, but it is also linked to his/her existence. 

This right is ensured for every citizen only through the provisions in Article 21 of the Constitution. 

Along with this, the issue of legal recognition of gay marriage is also related to the fundamental right to equality.

When same-sex relationships are legal in our country, then recognition of same-sex marriages should be the next step. 

On 6 September 2018, the Supreme Court had declared homosexuality out of the ambit of crime while giving a historic verdict. 

The five-judge constitution bench, headed by the then Chief Justice Deepak Mishra, gave this decision unanimously. The current Chief Justice of India DY Chandrachud was also included in that bench. 

At present, the bench headed by him is hearing the case related to the recognition of same-sex marriage.

While giving the verdict in 2018, the Supreme Court bench had said that homosexual sex between consenting adults is not a crime and the provision of Section 377 to criminalize such sexual relations violates the right to equality and dignity guaranteed by the Constitution. Violations happen. 

The Supreme Court, while decriminalizing consensual same-sex relationships, had said that it was irrational, sheer arbitrary and indefensible. 

However, the top court had also made it clear that if homosexual sex is done without the consent of either of the two adults, then it would come under the category of crime under section 377 of the IPC and would be punishable. 

Through this, the Supreme Court had considered adulthood and consent to be paramount even in such relationships.

At that time, the Supreme Court said in its order that the LGBTQ community also has the same constitutional rights as other citizens of the country. 

Describing sexual orientation as a ‘biological phenomenon’ and ‘natural’, the court had said that any kind of discrimination on this basis violates fundamental rights. 

The Supreme Court considered Section 377 to be based on the system of society running on the old pattern. In a landmark judgement, the Supreme Court had said that Section 377 has been used as a weapon to harass members of the LGBTQ community, resulting in discrimination.

At that time, Justice Indu Malhotra, who was on the bench, had said in his decision that the delay in providing relief to the members of this community and their families, who had suffered slander and ostracism for centuries, should be recorded in history with regret. 

Justice DY Chandrachud had said that because of Section 377, members of the LGBTQ community were forced to live in hiding and as second-class citizens.

In fact, when we analyze the decision of the Supreme Court of 2018, it is clear that the people of LGBTQ community should also get all the rights like other citizens, which we get as citizens from the constitution and other laws of the country. 

If gay marriage is not given legal recognition, then the people of this community will not only be treated as double standards, but it is also a kind of violation of what was said in the 2018 decision of the Supreme Court.

Now we all know that this tendency is innate in people having homosexual relations and this fact has been well accepted in medical science as well. 

As far as the social beliefs are concerned, many social beliefs that have been going on for centuries have been changed by making legal provisions according to the time. This is not a new thing.

One thing has to be understood that those who are in a homosexual relationship, their connection is also based on the same kind of feelings as it is between a common boy-girl or a woman-man. 

Legal recognition of marriage only means that in a way that relationship should be provided with social as well as legal protection. Same-sex couples can live together, adult couples can also have sex with their consent. 

Legally there is no objection in this, but due to lack of legal security, they have to face many problems.

It is also true that after the decision of the Supreme Court of 2018, the practice of marriage among such couples is increasing and such couples are living together after getting married according to their own customs. 

But as a couple they can neither adopt a child nor buy a house. They should also have every right to secure each other’s future through bank deposits or insurance. 

But due to lack of legal recognition of marriage, it becomes a distant dream for these couples at the moment. 

Like a normal couple, legal provisions related to divorce are also not available in case of a quarrel between them, so that the economic security of the weaker party in that relationship can be ensured.

The LGBTQ community in India fought a long battle when homosexual relations were decriminalized. 

This fight was a long one, but first of all, in 2009, the Delhi High Court, while giving its verdict in the Naz Foundation case, declared section 377 of the IPC as illegal, leaving homosexuality out of the ambit of crime. 

However, in 2013, the Supreme Court, overturning the Delhi High Court’s decision in the Suresh Kumar Kaushal case, re-criminalised gay sex. 

After that, in September 2018, in the Navtej Singh Johar case, a 5-judge bench of the Supreme Court changed its old order and decriminalized homosexuality.

With this decision, the people of the LGBTQ community as well as their families got a lot of relief. But now when people having such relations and their families are also converting such relations into marriages, it is imperative that they get social as well as legal protection.

It has been more than four and a half years since homosexuality was decriminalized in India. In fact, after that decision, the central government itself should have taken the initiative to give legal recognition to same-sex marriage. 

Even at that time, the Supreme Court had said that the LGBTQ community should not be considered a stigma, for this the government should campaign and the officers would have to be sensitized for this. 

Along with this, the people of this community should consider themselves safe in the society and have a feeling of being a part of it, from this point of view, giving legal recognition to same-sex marriage will also be beneficial.

However, the central government argues that this will create inconsistencies in the family, social system and the various laws currently in place. 

According to the government , having a relationship between people of the opposite sex is an essential aspect of family and marriage. 

The central government says that similar interpretation of husband and wife has been given in laws like marriage and divorce in India. I believe that after the legalization of homosexual relations, these arguments have no importance. 

These arguments could be considered correct as long as homosexuality was considered a crime in the country. 

But now the situation has changed and from that point of view also there should be change in all the laws related to marriage like Hindu Marriage Act, Special Marriage Act. All these laws were made at a time when homosexuality used to be a crime in our country.

It is a fact in India that there are many couples who are gay and have been living with each other for years. 

Now even in the eyes of the law, their relation is not wrong. So if we think of the relationship between man and woman to lead to the stage of marriage, on the same lines the relationship between homosexuals will also lead to marriage, it is a very natural process just like the relationship between opposite gender.

If India gives legal recognition to gay marriage soon, it will serve as an example for many countries of the world. At present, there are very few countries in the world, where such marriages are recognized. 

This right is available only in most western countries. Taiwan is the only country in Asia that legalizes same-sex marriage. 

In countries like Japan, South Korea, Greece, Thailand, Singapore and Hong Kong, debates and agitations have been going on for such a demand for a long time. 

If this happens in India, then in those countries also the demands of the LGBTQ community will be strengthened. 

Kyle Knight, who does research on LGBTQ issues at Human Rights Watch, also believes that if this happens in India, recognition of same-sex relationships will get a huge boost globally.

You will be surprised to know that after removing homosexuality from the category of crime in America, it took a decade to recognize same-sex marriage. 

In this direction, India can leave America behind and become the country to do so in half the time, if the Supreme Court decides in favor of legal recognition of these marriages. 

At present, homosexuality is outlawed in 133 countries of the world, but only 32 of these countries have legal recognition of same-sex marriages. 

Gay marriage is legal in most of the American countries and European countries, but there is still a long way to go in this direction in African and Asian countries and India’s decision will affect African and Asian countries, this is also certain. 

Just like in 2018, now once again the hopes of people in same-sex relationships have rested on the Supreme Court. 

Now only the Supreme Court of the country can ensure the right of marriage for every citizen of this country. 

Just as in 2018, the Supreme Court held that criminalizing homosexuality in Section 377 of the British-era IPC violates the fundamental rights conferred by Articles 14, 15, 19 and 21 of the Constitution, this also applies to not giving legal recognition to the marriage.

 For this reason, the people of the LGBTQ community are once again hopeful of a decision in their favor. 

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