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  • Kanishka Narayan Tiwari

BREAKING BARRIERS: SAME SEX MARRIAGE SHAPING A PROGRESSIVE INDIA

Kanishka Narayan Tiwari

BBD University , Lucknow

INTRODUCTION:

During early ears marriage is only considered as union of man and woman to be in relationship and to structure family it was favored by many sociologists one of them was Max Weber. But by the time this meaning of marriage changed as people stared considering love not only between man and woman but also beyond that it people started exploring their sexuality specially youth , In early ears there is considered to be only two major gender that are only consider to be attracted towards each other only :

  • Male

  • Female

But by the time major studies on human behavior, it cannot be said there is not only two genders or type of sexuality it became more complex than usual as there are major four types which can be categorized which are:

  •     Bisexual : ( attraction towards both male and female )

  •     Asexual : ( Not attracted towards anyone )

  •     Hetrosexual : ( Attraction towards opposite gender )

  •     Homosexual : ( Attraction towards same gender )

People started questioning against the rules of marriage as only man and woman can marry each other which gave the concept of  Same Sex Marriage .

Same sex marriage or Gay marriage is a form of marriage in which same gender or sex of people attracted to each other and get married. As per as report currently in the year of 2024 there are total 34 countries all over the world who legally recognize the same sex marriage or Gay marriage . Estonia is the most recent country to recognize same sex marriage legally on 1st of January.

First case of same sex marriage came into light in the year 1971 in United States when Michael Mc Connell and Jack Barker married each other.

But, currently in India same sex marriage is not legal but still there are many process are still undergoing to make same sex marriage legal in India.

In India there are major two groups of thought regarding the practice of same sex marriage:

Conservative group of thought

This group mainly constitutes of religious groups and people with conservative mind set. Their opinion regarding same sex marriage is that by legalizing this practice it will promote westernization and can cause a bad impact or influence over the youth of the country. There major concern is that this practice is against their culture and natural phenomena they oppose this kind of practice to promote their culture and safeguard their religious belief.

  • Radical group of thought  

This of group of thought supports same sex marriage or gay marriage strongly and openly  this group get major support from LGBTQ+ community and by youth of India , there idea of thought regarding same sex marriage is that India is democratic country so every citizens of India has freedom to live there life by their wish and choice and this group not only supports same sex marriage but also provide legal protection and legal recognition for LGBTQ+  community and also reduce discrimination and promote greater social acceptance in the field of education, employment , healthcare etc.

In India there are major six major important cases in the history of India for LGBTQ+   community   right these cases are mention below:

  • NAZ Foundation Vs Government of   NCT Delhi;[i]

In 2001, NAZ foundation raises question against Section 337[ii] of Indian Penal Code, 1960 under which homosexuality was criminalized, however in 2009 five judge bench of Supreme Court of India struck down Section 377 of Indian Penal Code which is consider as major victory for LGBTQ+ community. But this judgement faces many backlashes also against this judgement appeal was filed in Supreme Court of India.

  • Suresh Kumar Koushal Vs NAZ Foundation [iii]

In, 2013 under this case Delhi High Court order was overturned, in this case there are mainly three points:[iv]

1.    Section 377 of Indian Penal Code is not discriminatory as it does not target any group of people but only criminalize certain act

2.    If Section 377 of Indian Penal Code has to decriminalize than the right authority for it is a Parliament and not Court

3.    LGBTQ + community is a small fraction of population and for protection of their rights judiciary cannot interfere.

  • National Legal Services Authority Vs Union of India [v]

This case resolve around gender identity as well as Biological sex (something you are born with) and Psychological sex (something that you identified as) get distinguished with each other and Psychological sex was given importance . In this case transgender recognized as third gender.

RIGHT OF SELF IDENTIFICATION was given to transgender.

  • Justice K.S Puttaswamy Vs Union of India [vi]

Under this case the major question arise which was weather the Right to privacy is fundamental right or not. In this case Justice D.Y Chandrachud commented:

ü That rights of minorities are important as everyone’s else.

ü LGBT community cannot given hostile treatment it is impermissible

ü Right to privacy is fundamental right and sexual orientation is an essential attribute of right to privacy.

  • Navtej Singh Johar Vs Union of India [vii]

In this case homosexuality was completely decriminalized as per se section 377[viii] of Indian Penal Code regarding the consensual sex among homosexual.

Understanding this judgement by important articles;

Against the order of the nature. No intelligence differentia or rational nexus

Prohibits discrimination on the ground of sex, biological sex and sexual orientation this is considered as right approach and it reflect are improved understanding.

Justice D.Y Chandrachud commented that expression of personal identity includes sexual orientation so discriminating transgender is unconstitutional.

Right to life and liberty includes privacy, dignity, autonomy.

So, if any restriction is imposed by Section 377 – Article 14, Article 15, Article 19, Article 21 get violates. [xiii]

  • Supriya Chakraborty Vs Union of India[xiv]

In 2023, 5 judges were of Supreme Court of India for hearing of this case because substantial legal question arises for constitutional interpretation in which it includes

1.    Hindu Personal Laws

2.    Special Marriage Act

3.    Foreign Marriage Act

But parties and judges agree to listen this case only on the ground of Special Marriage Act so there will no conflict arises in personal law. As per as Special Marriage Act it defines marriage as union between only heterosexual man and woman.

So, with ratio of 3:2 it was held that same sex marriage cannot held to be legalize. But it was also held that Right to Marry is not a Fundamental Right  as well as in India there is no law that give right to marry to transgender and it can only be done by parliament and not by court .

So, in 2023 it was finally held that Same Sex Marriage is no legal and it faces many backlashes from the Radical group of thought and as well as many young youths of India who claims that it’s their right to live the way they wanted.

Conclusion

As, after many legal fights many legal rights given to transgender of India like Right to Identity as third gender but still from many rights transgender of India are not aware and still fighting for it there are many NGOs supporting them like NAZ Foundation, The Humsafar Trust (HST) , Alliance India etc. In, India Goa is considered as most friendly state for LGBTQ + community . Goa has booming in Gay tourism a number of gay friendly clubs and beaches as well. Which helps to promotes equality as well as freedom.

There are still many NGOs and group of advocates are working to legalize same sex marriage in India.

There are number of youth in support of same sex marriage me being the youth of India also support the idea of same sex marriage as it will clearly promotes equality and reduce discrimination and also empower the transgender of India to take part in daily life without any hesitation and facing discrimination.

References

[i] NAZ Foundation VS Government of NCT Delhi (2009) : 160 Delhi Law Times 277

[ii] Section 377 ( Indian Penal Code 1860) : Criminalized Homosexuality 

[iii] Suresh Kumar Koushal  and ANR Vs NAZ Foundation (2013) : Civil Appeal  No. 10972 of 2013

[v] National Legal Service Authority Vs Union of India (2014): 2014 INSC 275

[vi] Justice K.S Puttaswamy Vs UNION OF India (2017): : Writ Petition (Civil) No 494 of 2012; (2017) 10 SCC 1; AIR 2017 SC 4161

[vii] Navtej Singh Vs Union of India (2018): 2018 INSC 790

[viii] Section 377 ( Indian Penal Code 1860) : Criminalized Homosexuality

[ix] Article 14 : Constitution of India 1950

[x] Article 15 : Constitution of India 1950

[xi] Article 19 : Constitution of India 1950

[xii] Article 21 : Constitution of India 1950

[xiv] Supriya Chakrborty Vs Union of India ( 2023): W.P.C NO. 1011

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