RESEARCH PAPER

SAME SEX MARRIAGE : legitimating their status

-SAYAN KUMAR PANDA, PIYUSH AGRAWAL*

Introduction

Marriage is formally defined as the legally or formally recognized union of two people as
partners in a personal relationship1.Marriage has become such an instrumental part of a
person’s life that every individual aspires to a part of.2 Its importance is such that a battle is
waged between public policy religion and social norms everytime a group of people is excluded
from being able to marry. For ages, the concept of marriage has been hallowed as sacred. It is
believed to be an institution which binds within its boundaries certain principles and ideals that
have been upheld as sacrosanct. For a concept that is so deeply entwined in society that
everyone is expected to be a part of it,3 it has always been inclined towards a gender and sexual
orientation based approach. Its definitions, though many, can be interpreted in a myriad of ways
but the one thing that holds a strong stance is its interpretation in accordance with the societal
context. A battle between public policy, religion, and social norms is waged every time a group
of people is included, or excluded, from being able to marry. The current polarizing issue is
that of same-sex marriage.4

The Indian scenario weaves a story of its own on the tapestry of time when it comes to the
discussion of same-sex marriage. A quick jog through the pages of history and mythology sets
up numerous examples of the prevalence of such relationships. Though the texts of Manusmriti
put down any form of homosexuality as a sin, the Sutras which are considered to be
supplemental to the Vedas supported the persistence of such relationships in the past. The

*2nd year BA llb student at Maharashtra National law university,aurangabad

1
https://en.oxforddictionaries.com/definition/marriage
2
lizabeth S. Scott, A World Without Marriage, 41 FAM. LAW Q. 537–566 (2007).
3
Wendy D. Manning, Monica A. Longmore & Peggy C. Giordano, The Changing Institution of Marriage:
Adolescents’ Expectations to Cohabit and to Marry, 69 J. MARRIAGE FAM. 559–575 (2007).
4
Nancy D. Polikoff, We Will Get What We Ask for: Why Legalizing Gay and Lesbian Marriage Will Not
“Dismantle the Legal Structure of Gender in Every Marriage,” 79 VA. LAW REV. 1535–1550 (1993).
sacred texts on Hinduism have nowhere shown any direct condemnation of such relationships.
Rather, they have proved the existence of such relationships. Rig-Veda, one of the four
canonical sacred texts of Hinduism says “Vikruti Evam Prakriti “(what seems un-natural is also
natural), which some scholars believe recognizes the cyclical constancy of
homosexual/transsexual dimensions of human life, like all forms of universal diversities.5 The
Hindu God Shiva is often represented as Ardhanarishvara, i.e, the one with the congregation
of male and female attributes.6 The Ardhanareshwar is the cultural ideal which makes a Hindu
invoke a deity not on its own but as a couple.7 Apart from that, Aravan (a hero whom Krishna
married after becoming a woman); Ayyappa (a god born from the union of Shiva and Mohini,
a female incarnation of Vishnu); Bahuchara-devi (a goddess connected with trans-sexuality
and eunuchism); Bhagavati-devi (a Hindu goddess associated with cross dressing); Bhagiratha
Maharaja (an Indian king born of two female parents); Chaitanya Mahaprabhu (an incarnation
of Radha and Krishna combined); Chandi-Chamunda (twin warrior goddesses); Gadadhara
(an incarnation of Radha in male form); Gangamma-devi (a goddess connected with cross
dressing and disguises); Harihara (Shiva and Vishnu combined); Kartikeya;
Vallabhavardhana, Yellamma-devi and countless others.8

Instances of homosexuality can be found even today in a small village of Gujarat, Angaar where
transgender marriages are celebrated every year during Holi amongst the people of Kutchi
community. This unusual practice has been carried on for around 150 years which involves the
marriage of Ishaak (the bridegroom) and Ishaakali (the bride) who happen to be two men.9 The
instances of homosexuality is preserved everywhere, only the difference being, the shift in the
focus of their place in society.

This paper aims to explore the social, political, and legal aspects of same-sex marriage in India.
It also examines the roots of marriage, and why people are hesitant to acquiesce to a more
inclusive form of marriage.

5
Kavi, Ashok Row, ‘Expose the Hindu Taliban’ available at, http//:www.gaybombay.org/html/index.(Last
accessed on 22 November, 2018)
6
Pande, Alka ‘Ardhanareshwara: The Androgyne’, Rupa Press (2008)
7
Kakkar, Sudhir. “We invoke a deity not on its own but as a couple”, Pg.11, Hindustan times, 13 March, 2011.
8
Magoo, I.K. “Sexual offences and Homosexuality in India”, Capital Law House, (2009)
9
Arvind Kala, Invisible Minority: the unknown world of the Indian homosexual (Dynamic Books, New Delhi,
1994
Theoretical Explanation of Homosexuality

The reason for the sexual introduction of an individual is as of now under perception. The
general perception is that there is heaps of interlinking components that demonstration over a
term to decide person's sexual introduction. Supporting, Nature or a blend of the two is
frequently thought to decide human sexual conduct. Examines proposes that homosexuality is
to a great extent hereditary in root and it additionally states further that people with gay qualities
will feel less slanted to act heterosexually and will consequently repeat less often10. Discoveries
likewise recommend that gay men are feminized where as other investigation found that gay
men and gay ladies are manly. Another reason expressed is impersonation, a noteworthy system
of social transmission, which likewise represents some gay conduct. Sporadic dimensions of
sex hormones amid the improvement of the kid in the belly has likewise been referred to as an
impact. Family childhood may likewise have an impact by neglecting to create a solid feeling
of being male in the developing kid or by initiating blame about early hetero contacts or by
blocking introductory hetero conduct. Encounters outside the family may likewise, obviously,
support gay conduct11.
Marriage from the perspective personal laws

In India marriages are performed according to the personal laws that the person belongs to.
This means following the common features of mainstream religions is the prescription of rituals
and rules of conduct of marriage. Every major religions in India ie. Hinduism Islam and
Christanity12, prescribe their own definations and conduct of marriage . In India none of the
religion acknowledge same sex marriage

Hinduism defines marriage as association of two individuals so that they can pursue Dharma
and attain Moksha together. In Hinduism the matrimonial bond is considered to be sacred
There are both conservative and liberal views about homosexuality and same-sex marriages in
Hinduism with Hindu priests having performed marriage of same sex couples. The Kama Sutra

10
As per study conducted by Dean Hamer in 1994, wherein he studied 40 pairs of homosexual brothers,
reports that 33 pairs shared a set of five genetic markers. Hamer concluded that genetics played ‘‘some
role’’ in a minority of gays. Source : DeanHamer and P. Copeland The Science Of Desire: The Search
For The Gay Gene And The Biology Of Behavior (Simon and Schuster, New York, 1994).
11
Lane Tim Dean, Homosexuality And Psychoanalysis (The University of Chicago Press, Chicago, 2001).

12
Ministry of Home Affairs, Census of India, Distribution of Population by Religions. Issued 2011. (Accessible
at http://censusindia.gov.in/Ad_Campaign/drop_in_articles/04-Distribution_by_Religion.pdf)
acknowledges third-gender marriages wherein same-sex couples with “great attachment and
complete faith in one another” get married together13.

In Islam marriage the marriage is supposed to be a contract binding between the two persons.It
is a formally binding contract upon the parties. The consent of the bribe is necessary for the
performance of the marriage. It is not a sacrament as of Hindu law. The muslim law is very
against when it comes to the concept of same sex marriage. The sharia law imposes death
penalty of couples engaging in homosexual activity be it active or passive14.

In Christian marriage, the union between a man and a woman is instituted and ordained by God
as the lifelong relationship between one man as husband, and one woman as wife. For example,
a passage in the Bible states that husbands should love their wives as Jesus loved the church15.
Although there is no definition of marriage, most of the traditional Christian societies and
churches do not recognize same-sex unions16. They believe that marriages should be restricted
to “traditional” marriage17. Some far-right groups even believe that homosexuals should be
stoned to death due to a passage in the Old Testament18

The above mentioned examples depicts that personal laws have hesitated in providing any
legitimacy to the concept of same sex marriage. The marriage of the couples through the
personal law seems like a far cry in today’s India. The legislature should come up with ways
to inculcate the provisions for marriage of such couple in legal framework. One way out is
same sex marriage act with all the necessary provisions to be brought before the parliament

13
"Information & Support for LGBTI Vaishnavas & Hindus; "Kama Sutra 2.9.36"". www.galva108.org.
14
Jim Wafer, Muhammad and Male Homosexuality, in STEPHEN O.MURRAY &WILL ROSCOE, ISLAMIC
HOMOSEXUALITIES:CULTURE, HISTORY, AND LITERATURE, at 89 (NYU Press) (1997)
15
5:25-32, Ephesians, KING JAMES BIBLE
16
Rory Mc Veigh & Maria-Elena D. Diaz, Voting to Ban Same-Sex Marriage: Interests, Values, and
Communities, 74 AM. SOCIOL.REV. 891–915 (2009).
17
Ibid
18
http://www.nytimes.com/aponline/2015/03/23/us/ap-us-rel-bob-jones-gays.html (last visited August 29th,
2015); 18:22, Leviticus,KING JAMES BIBLE
Progress through the ages

The legal battle against Section 377 started back in 1990s when AIDS Bhedbhav Virodhi
Andolan19(hereinafter referred to as ABVA), filed a writ petition20 before the Delhi
High Court in 1994 in response to the refusal of Kiran Bedi, the then inspector general
of the Tihar Jail, to avail condoms for the jail inmates because it would encourage
homosexuality. The ABVA demanded the free supply of condoms to the jail inmates
and thereby proclaiming that Section 377 should be declared as unconstitutional.
Despite of full-heart effort of ABVA, the petition was dismissed by the court in 200121.
This judgment created a spark among the homosexuals to fight for their own rights and
live in equal dignity with other people.

After the above petition was dismissed, the Naz Foundation, an NGO indulged with HIV/AIDS
sufferers, filed a writ petition in the case Naz Foundation v. Government of NCT of Delhi and
others22 before the Delhi High Court challenging the constitutionality of the Section 377 on the
ground that the expression “of unnatural offences” has been in the penal provisions since 1861
and has been effectively construed as criminalizing (penalizing) consensual sex between same
sex individuals and therefore it violated fundamental rights guaranteed under Article 14, 15,
19 and 21 of the Indian Constitution. The petitioner’s locus standi was based on the ground
that its effort on fighting the spread of HIV/AIDS was being hindered by discrimination faced
by the LGBT community due to Section 377 and this leads to violation of fundamental rights
and harassment, and assault of the public authorities being faced by the LGBT community23.
In 2004 the case was dismissed by the High Court on the grounds that merely academic matter
had been submitted and same could not be scrutinized by the court. The same reason was
provided while dismissing the review petition as well. The NAZ foundation in 2006 filed a
Special Leave Petition challenging both the orders of the Delhi High Court and in return the
Supreme reinstated the case to the High Court on the fact that it involves an issue of public
interest.

19
It was India’s first AIDS activist movement, based in New Delhi and was founded in 1988.
20
AIDS Bhedbhav Virodhi Andolan v. Union of India & others, (Civil Writ Petition No 1745 of 1994)
21
Id.
22
WP(C) No. 7455/2001
23
Jarlath Clifford, Naz Foundation vs. Govt of NCT and Delhi and Others, 4 Equal Rights Review 71, 71 (2009)
available at http://www.equalrightstrust.org/ertdocumentbank/case%20note.pdf [Last accessed on 1st December,
2018]
In 2009 the decision of the Delhi High Court came as a surprise for homophobic people but the
decision was lauded and appreciated by the homosexuals mainly for two reasons. Firstly, the
judgment was a landmark victory for the gay and transgender community and secondly, the
judgment was based on the strong legal reasoning. The High Court concluded its judgment by
stating that “Section 377 IPC, insofar as it criminalizes consensual sexual acts of adults in
private, is violative of Articles 14, 15 and 21 of the Indian Constitution”.24

This judgment was considered to be the outset for the legal recognition of the same sex
marriage and also for the rights to the homosexuals in regard to divorce, maintenance, adoption,
property, and succession, before the Supreme Court overruled it in the case Suresh Kumar
Koushal and others v. NAZ Foundation and others25.

The judgment of the Delhi high court was challenged before the Supreme Court in Suresh
Kumar Koushal and others v. Naz foundation and others, and in 2013 the panel of two Supreme
Court judges allowed the appeal and overturned the Delhi high court decision, finding it to be
“legally unsustainable”. The Supreme Court in the end found that Section 377 does not violate
the Constitution and hence dismissed the writ petition filed by the Respondents. The reasoning
provided by the Supreme Court while dismissing the writ petition was that it stated that the
high court fail to observe the fact that “a miniscule fraction of the country’s population
constitute lesbians, gays, bisexuals, or transgenders” and for over 150 years and so less than
200 people had been prosecuted under Section 377 and therefore the court concluded “this
cannot be made sound basis for declaring the section ultra vires of the provisions of Articles
14, 15 and 21 of the Constitution”. 26

The decision gave a set-back to the homosexuals as it took away their rights to choose partner
and violated their fundamental rights.

In the meanwhile, in 2014 the Supreme Court in NALSA v. Union of India27, directed the centre
and state governments to grant legal recognition of gender identity to all person whether a male,
female or transgender.28

24
Id at 72-73
25
Civil Appeal No. 10972 of 2013
26
Id.
27
(2014) 5 SCC 438
28
Id.
The above judgment was contradictory to the findings of the Supreme Court in Suresh Kumar
Koushal v. Naz foundation in many ways.

After the judgment of the Supreme Court in Suresh Kumar Koushal case, fresh petitions were
being filed which were admitted by the court on 8 January, 2018 in the case Navtej Singh Johar
v. Union of India29, whose hearing began on 10 July 2018 and concluded on 18 July. The court
while ruling in favour of the Petitioners recognized that the gender identity is one of the most
essential aspects of life which refers to person’s native sense of being a male, female or
transgenders.

Justice K.S. Radhakrishnan, speaking on behalf of the court, concluded the judgment by
holding that discrimination on the basis of sexual orientation or gender identity includes any
discrimination, exclusion, restriction or preference, which has the effect of nullifying or
transposing equality by the law or the equal protection of laws guaranteed under our
Constitution.30

The above judgment restored the faith of the homosexuals upon the Supreme Court and it can
be consider to laid the foundation for the legal recognition of homosexuals and embodying
them with all the basic human rights including right to marriage, property, adoption and many
more.

The above case was expressly concerned with Section 377 and the marriage issue was
addressed only by Justice Chandrachud, who stated that all persons should be eligible for this
institutional recognition of their love irrespective of sex and gender.31 This case hasn’t provided
any marriage rights to LGBT community.

Status of homosexual couple in india

If world over developments are taking place for accepting the homosexuals the Indian legal
system has not yet taken the high road. The homosexuals have been victimised to various forms
of violence which gives rise to their common vulnerability. At present india has 2.5 million
homosexuals who have evolved to break open the opacity about their identity. They have drawn
links all across the country between various cities to associate online as well as offline32. It can
be seen that the homosexuals are more vocal about their rights in the major cities for example

29
WP(Cr.) No. 76 of 2016
30
Supra note at 9.
31
Supra note at 11.
32
http://www.haworthpress.com/store/E-Text/View_EText.asp?a=3&fn=J236v07n01_09&i=1%
Delhi and Mumbai being on the top( with 5 lakh gays ) and also Bangalore and Calcutta33. The
large towns like Delhi, Mumbai ,Calcutta, pune, Hyderabad tend to give a considerable latitude
to the homosexuals to assert their rights34 by providing them a favourable premise to grow like
chat rooms, help lines, drop in centres etc35. In recent past the homosexual community of
Calcutta, Mumbai and Banglore also hosted the gay pride march36. Therefore India is not alien
to homosexuality because with the liberation of thought in the society homosexuals are coming
out of the closet to be a powerful community.

Same sex marriage in countries around

The same sex marriage was first introduced in The Netherlands in the year 2000 and
subsequently in Belgium,spain and Canada and by the year 2017 about 26 countries have
recognised same sex marriage in the their country’s legislation37. The newest entry to the list
is of Australia which recognised same sex marriage in the year 2017.In Mexico same-sex
marriage has been legal since 2009. Since then, the country of Mexico has taken steps to extend the
right of marriage to same-sex couples. In 2010, the Supreme Court of Mexico affirmed the validity of
the marriages performed in Mexico City and set the stage for nationwide recognition. Today, same-sex
marriage is legal in 12 states and Mexico City, and same-sex couples do have the right to seek an
injunction against any state attempting to ban the practice.

CONCLUSION
The status of same sex marriage in India is under ambiguity because there is no legfislation.
The personal laws either term it as unethical or unnatural. The judgement on scarping of section
377 of ipc 1860 came as a ray of hope for these people, but still their right to marry is not as
recognised as a result of their they are not able to avail the benefits of marriage like
maintenance .succession .The society in India is yet to dissolve in the concept of same sex
marriage. Though their have been instances where the same sex marriage has actually taken
places, but because these marriages are not recognised by the judiciary and hence they cant get
it registered.

33
According to Shaleen Rakesh, Coordinator, Milan project, Naz Foundation, New Delhi.
34
http://www.ilga.info/index.html
35
https://www.tribuneindia.com/2004/20040319/world.htm
36
findarticles.com/p/articles/mi_m2065/is_n1_v50/ai_20344099/pg_4 - 28k -
37
Same sex marriage around the world http://ilglaw.org/same-sex-marriage-around-the-world/