This is a disclaimer.
Are you a 21-year-old heterosexual male looking for a suitable wife to marry? Or are you an 18-year-old heterosexual female wanting to marry the man of your dreams? If you answered yes to either one of the questions, then look no further, this article is not meant for you. Unless (yes, what is law without provisos?), you believe that marriages are born out of love, not gender.
This month, we are all witnessing colorful, uplifting parades, joyous festivals, workshops, picnics, and parties to proudly celebrate our LGBTQ+ community. After all we are proud citizens of a Nation that believes that a person’s sexual orientation is intrinsic to their being and any law that discriminates between persons based on their innate nature would be violative of their fundamental rights and thus, would not withstand the test of constitutional morality. In the last few years, the Supreme Court has championed the cause of individual autonomy in matters of love, sex and marriage, including in cases such as Shafin Jahan v. Asokan (AIR 2018 SC 357), Shakti Vahini v. Union of India (AIR 2018 SC 1601) and Navtej Johar v. Union of India (2018) 10 SCC 1). In Navtej Johar, not only did the Court hold Section 377 of the IPC to be unconstitutional, but it also explicitly recognized the rights of the LGBTQ+ community to express their individuality, sexual identity and love on par with heterosexuals, as fundamental to Articles 14 (right to equality), 19 (right to freedom), and 21 (right to life) of the Constitution. Even after this monumental verdict, the stigma around homosexual relationships remains widespread in India, especially in the absence of a robust anti-discrimination framework in laws, inter alia governing marriage rights, or lack thereof.
Strangers in Law
Recently, the issue of non-recognition of same-sex marriage rights as violative of various provisions of the Constitution of India came up before the Hon’ble High Court of Delhi in a PIL titled Abhijit Iyer Mitra & Ors vs UOI.
“Living together as partners and having sexual relationship by same sex individuals is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presupposes a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two,” the Centre argued before the Hon’ble Delhi High Court in the aforementioned matter.
This argument equates the concept of marriage to procreation. Simply seeking companionship is neither a necessary nor a sufficient reason to get married as per the Respondent in the instant case. This is where the limited definition of marriage becomes problematic. The Centre while advancing this one-dimensional argument has inadvertently overlooked those “heterosexual” couples that get married and decide to not have children. Assuming arguendo that this argument is accepted prima facie, then it must exclude and repudiate all such marriages the basis of which is not procreation, but companionship. If procreation were indeed so central to the concept of marriage, heterosexual couples would be required to prove their fertility and, indeed, commit to having children before being allowed to register their marriage. The members of the LGBTQ+ community “are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution” and are entitled to equal citizenship and “equal protection of law”. Therefore, once members of the LGBTQ+ community “are entitled to the full range of constitutional rights”, it is beyond doubt that the fundamental right to marry a person of one’s own choice has to be conferred on same sex couples intending to marry.
The matrimonial laws in India, including laws on marriage, divorce, and other connected issues, are essentially governed by the personal laws of the parties depending on their religion, which are codified by statute in most cases:
- Hindus: Hindu Marriage Act, 1955.
- Muslims: Muslim marriage is a contract under Muslim law.
- Christians: Indian Christian Marriage Act, 1872 and the Divorce Act, 1869.
- Parsis: Parsi Marriage and Divorce Act, 1936.
In addition to these laws, the Special Marriage Act, 1954 applies to all persons of all religions. This is a civil legislation and parties from all religions, caste or community can elect to marry under it.
Marriage Should be between a Spouse and a Spouse
The Hindu Marriage Act very specifically states that at the time of marriage, the bridegroom must be of twenty-one years of age and the bride must be of eighteen years of age. A similar provision is present in the Christian Marriage Act as well, which uses the term man and woman. Almost every Indian personal law considers marriage as a union of heterosexuals. However, it is argued that same sex marriages are not expressly prohibited under The Hindu Marriage Act. The Hindu Marriage Act lays down certain conditions for a valid marriage, and they are:
- Union of Spirits- The Act does not use specific terms such as male/female or man/woman. So, homosexuals can be very well incorporated into it.
- Between any two Hindus- The Act mentions, “A Marriage may be solemnized between any two Hindus…”
- No Express Prohibition- The Act does not expressly say marriage can only be solemnized between two individuals of opposite gender. The Act under section 2 lists down who all are entitled to marry under it.
- Customary rites and Ceremonies- Section 7 says marriage can be solemnized following customary rituals of either party. The marriage is invalidated if rites are not performed properly. These ceremonies need to be proved for a legitimate marriage under the Act.
- Bride and bridegroom- Only Sections 5(ii) and 7(2) of the Act use the term bride and bridegroom. Other provisions use neutral terms like ‘person’ or ‘party’. According to the authors, the term bride and bridegroom may be interpreted as roles which the parties may prefer in a relationship.
Therefore, it can be reasonably argued that people from the same sex can solemnize their marriage under the Act.
Another option, which ought not to raise religious hackles, is to seek an amendment to the Special Marriage Act, 1954 (‘SMA’) to permit same-sex marriages. The SMA is a secular legislation that facilitates marriages between people of different religions or those who do not wish to be bound by their personal laws. Instead of a religious ceremony, a Marriage Officer registers the marriage. In its existing form, the SMA seems to apply to heterosexual couples, since it provides that the male should have attained the age of twenty-one years and the female, the age of eighteen years. But it is not difficult to accommodate same-sex marriages within the framework of SMA. It would only be necessary to amend Section 4(c) of the Act so that it reads that a party, if male, should have attained the age of twenty-one years and if female, should have attained the age of eighteen years and to add a specific provision that same sex marriages are permitted.
Although Section 377 of IPC has been decriminalized, the law still debars LGBTQ+ community from adopting children altogether. This demonstrates that homosexual couples are not equal before the law. According to regulation 5(3) of the Adoption Regulation Act, 2017, only a couple having a stable relationship of two years is eligible to adopt a child. Further, the section uses the words “husband” and “wife” which basically means that it does not recognize the right to adoption in case of same-sex couples.
There is no denying the fact that adoption is a complex issue, and even heterosexual couples have a hard time in adopting a child considering the anti-trafficking laws. But a heterosexual couple can at least apply for adoption, while same-sex couples are not even allowed to adopt under the law. Another reasoning behind not allowing same-sex couples to adopt is that every child must be able to know the value of both a mother and a father. However, what is ironical is the fact that law can abandon a child to be raised as an orphan, without both parents, rather than being raised by homosexual and trans couples.
Disturbingly, the law continues to disentitle the LGBTQ+ couples from adopting a child even when there are more than 20 million orphans and abandoned children in India, out of which most of them are living in abysmally poor conditions
A Long Road to Happily ever After
In a society that gives marriage a lot of religious significance, the most satisfactory course would be the enabling of same-sex marriages under the personal laws. However, it would be an uphill task to seek amendments to the personal laws of all religions. Any judicial intervention in this regard would be perceived as interference in religious freedom. In India, where along with rapid modernization, there has been a growth of conservative and revivalist ideas, this opposition in the name of tradition, culture, and religion, however misguided, will be strong and will act as an impediment to liberal legislation. India’s Constitution is ready for same-sex marriages but there is a strong need to make people and the society leave the rudimentary shackles of so-called ‘values and culture’ and acclimate to the change flowing in nature.