India does not recognize SAME-SEX MARRIAGE or civil unions, though same-sex couples can attain the rights and benefits as a live-in couple, as per the Supreme Court of India (SC) landmark decision in August 2022. Presently, SC is hearing petitions filed by various people, including those belonging to LGBTQ (Lesbian, Gay, Bisexual, Trans sexual, and Queer) community and gay couples for allowing same-sex marriages. SC had asked the government’s opinion on this matter. The Central government’s affidavit filed in the SC, states that “ the SC’s 2018 verdict to de-criminalise homosexuality does not confer any right to the LGBTQ community to claim legal recognition for same-sex marriages”.
The Central Government’s opposition to legal recognition for same-sex marriage states that “ there is much legislation pertaining to adoption, maintenance, rape, dowry, prohibition, cruelty etc, that recognize only heterosexual couples and these laws can not be applicable in same-sex marriage as it is neither possible nor feasible to term one as husband and other as a wife”. The government further submitted that “ the parliament has designed and framed the marriage laws in the country, which are governed by personal laws/ codified laws relatable to customs of various religious communities, to recognize only the union of a man and woman to be capable of legal sanction, and thereby claim legal and statutory rights and consequences”. Referring to the approval of same-sex marriage, and difficulty in implementing various laws pertaining to adoption, maintenance, prevention of dowry, matrimonial disputes, etc, and their special rights to wives/women, any recognition over and above the conventional relationship of marriage between man and woman would cause irreconcilable violence to the language of the marriage”.
Above is the Central government’s stand on the issue of same-sex marriage, and changing so many other laws, which will be applicable to same-sex marriage is going to be a herculean task for the government.
Now let us see what is the global scenario about same-sex marriages:
Over the last century, the definition of homosexuality has shifted significantly. It has ceased to be abnormal behavior since 1974 and has been excluded from the mental disorder categories. Homosexuality in several nations has been since de-criminalised.
Currently, in many countries including the Netherlands, Belgium, Canada, Brazil, South Africa, and Germany, same-sex marriages have legal status. In Australia, Denmark, Finland, France, Switzerland, Israel, New Zealand, Norway, Portugal, Slovenia, Sweden, and the UK-the bulk of civil partnerships and other forms of formal acceptance to same-sex partners give, though not any privileges of civil marriages are practiced. Australia’s region and some territories in the USA provide civil unions with certain rights and responsibilities.
Here are people who oppose homosexual relationships:
In some countries, Afghanistan, Iran, Nigeria, Pakistan, Saudi Arabia, Sudan, the UAE, and Yemen, homosexuality can be punished with execution, and there are 70 other countries where it is considered a heinous offence. In countries like Burma, Bhutan, Georgia, Indonesia, Maldives, and Yemen etc, if found homosexuality could lead to even incarceration.
It is not democratic but instead a theological issue. A great many men are against it particularly in India, because we find it uncouth and immoral-these are the words of Dr. Manmohan Singh ex-PM of India when he was told about the Canadian rule on gay partnerships. Some people do not consider it normal because they can not replicate babies. This is religious, God only produced Man and Woman (Adam and Eve) because God wanted a heterosexual society to exist. Why misrepresent the rule of God? Cultures all over the world are built on the marriage and partnership of men and women.
In India, same-sex marriages are happening under Personal Laws and Special marriages Act, but most of the people who are getting married under these laws, are generally advised by some legal experts about the loopholes in the law. It is a known fact that in India same-sex marriages are still not legal.
Since no other solution seems to be practicable, same-sex marriages in India can only achieve legal status, if and only if the laws are amended by the parliament. This will be problematic owing to a prominent segment of society being against the LGBTQ culture. It would also be seen as interference in religious groups’ practices and customs. Going for such a diverse change in laws, will not be any Indian government’s priority.
Now, if the SC directs the government to frame the laws to legalise same-sex marriages, suppose government frames these laws, but it will be always very difficult to get these laws passed in two houses of parliament.
The case in the SC is still continuing, let us wait and watch for further developments on this issue.
Waiting for your views on this blog.
Anil Malik
Mumbai, India
13th March 2023