Legislation To Legalize Same-Sex Marriages Is Abysmally Overdue

Context: Denying individuals matrimonial and other rights that emanate from matrimony solely for their sexual orientation is unjust.

Same-sex marriage legal position in India

• In Navtej Singh Johar vs Union of India case 2018, the SC decriminalized homosexuality.
• In Shakti Vahini case, 2018, SC observed it would be impossible to think of dignity in its hallowed wholeness if freedom to “express one’s own choices” is impeded.
  • Right to marry a person of one’s choice thus been included as an inherent part of Article 21.
• The Uttaranchal high court in Madhubala vs. State case upheld the live-in relationship of a same-sex couple but observed that partners could not enter wedlock.
• Legal void: Thus, India does not consider same-sex marriages ‘illegal’ per se, but there are no laws relating to marriage that explicitly authorize same-sex unions.

Need for legalizing same sex marriages:

• Human rights perspective: Denial of matrimonial and other civil rights that emanate from association of marriage to individuals based solely on their sexual orientation is a grave injustice.
• Upholding fundamental right: One’s decision to marry a person of one’s choice is essentially a part of an individual’s freedom and thus a fundamental right.
• Merely decriminalizing homosexuality is ineffective: As it failed to provide homosexual partners with the right to marry and does not give same-sex couples a sense of recognition and belonging in society
• Along global trend: The Netherlands was the first country to legalize same-sex marriage in 2000, followed by other countries, and now a total of 29 countries have recognized same-sex marriages.

Challenges in bringing in same-sex marriage legislation

• Against religious sentiments of society: As in Islam, homosexuality is typically considered a sin; in Christianity, it is usually condemned, and Hinduism, although relatively lenient, tends to portray marriage as a procreative institution.
• Restricts legal reforms: As legal principles are often drawn along the lines of religious and moral sentiments of a country’s majority.
  • Thus, same-sex marriage laws cannot emanate from existing personal laws but from secular, individualistic laws which are socially in the backfoot.

Way forward: Legal reforms to accord same-sex unions legal sanction and social acceptance

• Comprehensive legal framework conferring partners rights of succession and maintenance, economic, adoption and pension rights and protection against domestic violence.
• The onus of this lies on the legislature, as the judiciary can only direct the government to take appropriate measures for justice.