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LGBT RIGHTS: STRUGGLING FOR SAME-SEX MARRIAGE RIGHTS ?

LGBT RIGHTS : STRUGGLING FOR SAME SEX MARRIAGE RIGHTS ? /THELEGALLOCK.

SAME SEX-LGBT MARRIAGE

Special Marriage Act of 1954 lays down provision for people of India and all Indian nationals
in foreign countries allowing them to marry irrespective of their faith, caste and religion. So, while the marriage laws in India have evolved progressively with time but there is no such provision for the same-sex couples to marry, which seems reasonable also considering it’s
only been two years when the Supreme court decriminalised homosexuality. However,
sooner or later the legislature has to deal with these questions

ALSO READ- LGBT RIGHTS – ENSURING EQUALITY – VIOLATIONS AND ROLE OF JUDICIARY

There are several petitions on same-sex marriages pending with the courts. So, the next
onus on the LGBT activists is to encourage and demand from the government to formulate legislation permitting LGBTQ couples to marry, adopt and inherit their spouse’s property.

However, the fact is that although the Union government, in 2018 left it for the court to
decide on the legality of section 377, but has also indicated that it is likely to oppose any petition for same-sex marriage.

But this seems to be contradictory in the light of the judicial pronouncements considering
that if we really want to adhere to the principle of equality in the context of LGBT people
then the right to marry, bequeath property, share insurance (medical and life) are all part
of this.

Therefore, denial of these basic rights only on the basis of sexual orientation is objectionable and unconstitutional violating the constitutional rights of right to equality (Article 14) and liberty (Article 19). 

In India, marriages and weddings are considered as a sacred thing. Marriage has been one
of the strongest and most important institutions of human society. With time it has evolved and changed its forms but what didn’t change is that marriage continues to be a universal
fact. This has more relevance especially in the case of India, where the concept is so deeply entwined that everyone is expected to be a part of it.

The denial of marriage rights to LGBTQ+ people deprive same-sex couples of social and legal recognitions as well as the state benefits that married persons enjoy. However, it is essential
to point out that the institution of marriage since its inception has been exclusionary towards certain communities of people and whenever any group of people has been included or excluded from being able to marry, it has always been accompanied with a battle between public policy, religion, and social norms.

Right to marry is not expressly mentioned in the constitution. But, in the landmark case of
 Lata Singh v. State of Uttar Pradesh AIR 2006 SC 2522 the supreme court interpreted it to
be a part of Article 21 of the Indian constitution. The supreme court in this case of inter-caste marriage stated that after a person becomes major, he/she can marry whomsoever he/she likes.

The court further opined that the maximum the parent can do is that they can cut all their
ties from the children but can’t threaten or kill them. Right to marriage is also recognised
at international level in human rights charter under the heading of “right to have a family”
and under various other covenants, but are these laws inclusive enough to include
same-sex marriages is still a big question.

However, this reason cannot be a valid justification to deny the whole LGBT+ community
the right to marry just because they have a different sexual orientation from others. Apart from this, it also raises another very pertinent question that whether the opinion of the majority holds more significance in the eyes of law that it can deprive an individual of the personal autonomy and basic right to his/her own life.

Despite there being no legislation in India governing same-sex couple marriages. LGBT
people still marry and there have been instances when the courts have recognised these
kinds of union.

After the decriminalisation of homosexuality in 2009, the Haryana court effectively
recognised marriage between two lesbians. But a more significant judgement came in
2019 after the scrapping of Section 377 by the Supreme court. In 2019 a bench of Madras
High court
upheld the marriage between a biological man and a trans woman under the Hindu
marriage act 1956 and the court further directed to register their marriage.

Some similar instances of acceptance of same-sex marriages can also be found at the community level. In 1988 two police women married each other in a Hindu ceremony
Though not registered but their marriage was accepted and supported by their families
and the community. Apart from this, similar kind of same-sex marriages have been
happening in small village Angaar in Gujarat amongst the Kutchi for the past 150 years,
where both the bride and bridegroom are men.

Further, it’s also very important to note that most such same-sex marriages, especially
lesbian marriages, have largely happened between small-town, lower-middle-class or
between non-English speaking women who are not even connected to the LGBT RIGHTS movement.

In the Navtej Singh Johar judgement, Justice Chandrachud observed that the manner in
which an individual wants to exercise intimacy is beyond the legitimate interest of the
state. But despite granting everyone the right to intimacy the judgement did not direct
the government to frame or amend laws to recognize such alternate forms of union or otherwise.

As essentially speaking when Justice Misra recognised the right to the union under Article 21, the word “union” was used in the context of companionship and not in the reference to marriage.

It is also important to point out that the LGBT rights activists have suggested various
reforms to the law commission to make the family laws inclusive for same-sex couples
as well but the same has not received any due consideration from the law commission.

However, with the Supreme court decision in NALSA judgement and more recently in
Navtej Singh Johar judgement, some of these restrictions can now be potentially
challenged under the robust framework of equality and non-discrimination that has
been recognised.

LGBT RIGHTS: MARRIAGE LAWS INCLUSIVE OF LGBT+ COMMUNITY

In order to recognize same-sex marriages, some new laws will have to drafted, modified
or inserted, as the present laws cannot be applied in the case of LGBT marriage. There
are 3 ways by which the LGBT marriage laws can be made LGBT+ inclusive.

  1. One view suggests that same-sex marriages can be permitted after reinterpreting, modifying or amending the existing laws or by making the language of the act gender-neutral.
  2. The second view suggests that same-sex marriages should be permitted after drafting a whole new Act by considering the LGBT+ as a separate community.
  3. The third view suggests that considering India is still not progressive enough and open to the idea of LGBT marriages, the legislature instead of legalising same-sex marriages can rather give them a different status such as that of a civil partnership, where they may not have all the rights of marriage but can still enjoy various other significant rights like sharing of insurance, filing joint tax returns etc. i.e. it can be rather recognized as a relationship based on emotional and economical interdependency.

COUNTRIES WHERE SAME SEX-MARRIAGE IS LEGAL(TIMELINE), LGBT RIGHTS ENSURED.

A growing number of governments around the world are considering whether to grant legal recognition to same-sex, LGBT marriage. So far, 30 countries and territories have enacted national laws allowing gays and lesbians to marry, mostly in Europe and the Americas. In Mexico, some jurisdictions allow same-sex couples to wed, while others do not.

Below is a list of countries that have legalized the practice, with the most recent countries to do so shown first.

Costa Rica (2020)

In May 2020, Costa Rica became the first Central American country to legalize same-sex LGBT marriage. 

Northern Ireland (2019)

In October 2019, same-sex, LGBT marriage became legal in Northern Ireland. Although Northern Island is a constituent of the United Kingdom, with its own parliament at Stormont, the change in its marriage laws ultimately came about due to action by the UK’s Parliament in London. 

Ecuador (2019)

On June 12, Ecuador’s Constitutional Court ruled that that same-sex couples have a right to marry (LGBT MARRIAGE RIGHT10. The decision, which went into effect immediately, makes the Andean Mountain nation the fifth country in Latin America to allow gays and lesbians to wed.

Taiwan (2019)

On May 17, 2019, Taiwan’s legislature passed a bill legalizing same-sex, LGBT Rights to marriage and making the island nation the first country in Asia to permit gays and lesbians to wed.

Austria (2019)

On Jan. 1, 2019, Austria joined the vast majority of Western European countries in legalizing same-sex marriage.

Australia (2017)

On Dec. 7, 2017, the Australian Parliament passed legislation allowing gay and lesbian couples to legally wed. Passage came just three weeks after Australians voted in favour of legalizing same-sex marriage, by a 62% to 38% margin, in a non-binding, nationwide referendum. Along with New Zealand, Australia became the second country in the Asia-Pacific region to make same-sex marriage legal.

Malta (2017)

Malta’s parliament almost unanimously voted to legalize same-sex marriage in July 2017, despite opposition from the Catholic Church on the small Mediterranean island.

Germany (2017)

On June 30, 2017, Germany became the 15th European country to enact legislation allowing same-sex couples to wed.

Colombia (2016)

On April 28, 2016, Colombia became the fourth country in Catholic-majority South America to legalize same-sex marriage, following Argentina, Uruguay and Brazil.

United States (2015)

Eleven years after same-sex marriage was first made legal in Massachusetts, the U.S. Supreme Court ruled that the Constitution guarantees it throughout the country. 

Greenland (2015)

Greenland, an autonomous territory of Denmark, was not subject to Denmark’s same-sex marriage law, which was enacted in 2012. However, legislators in Greenland passed a bill in May 2015 to legalize same-sex marriage on the world’s biggest island.

Ireland (2015)

On May 22, 2015, Catholic-majority Ireland became the first country to legalize same-sex marriage through a popular referendum. More than six-in-ten Irish voters (62%) voted “yes” to amend the Constitution of Ireland to say that “marriage may be contracted in accordance with law by two persons without distinction as to their sex.”

Finland (2015)

Same-sex marriage became legal in Finland starting in 2017.

Luxembourg (2014)

On June 18, Luxembourg’s parliament, the Chamber of Deputies, overwhelmingly approved legislation to allow gay and lesbian couples to wed and to adopt children.

Scotland (2014)

On Feb. 4, 2014, the Scottish Parliament voted overwhelmingly to approve legislation legalizing same-sex marriage. In addition to allowing same-sex couples to wed, the measure gives churches and other religious groups the option of deciding whether or not they want to conduct such marriages.

England and Wales (2013)

On July 17, 2013, Queen Elizabeth II gave her “royal assent” to a bill legalizing same-sex marriage in England and Wales.

Brazil (2013)

On May 14, 2013, Brazil’s National Council of Justice ruled that same-sex couples should not be denied marriage licenses, allowing same-sex marriages to begin nationwide. (Previously, about half of Brazil’s 27 jurisdictions had allowed same-sex marriage.)

France (2013)

On May 18, French President Francois Hollande signed into law a measure legalizing same-sex marriage, making France the 14th country to grant gays and lesbians the right to wed.

FEW MORE COUNTRIES ARE;

NEW ZEALAND (2013), URUGUAY (2013), DENMARK (2012), ARGENTINA (2010), PORTUGAL (2010), ICELAND (2010), SWEDEN (2009), NORWAY (2008), SOUTHAFRICA (2006), SPAIN (2005), CANNADA (2005), BELGIUM (2003), THE NETHERLANDS (2000)

CONCLUSION

 LGTBQ community needs an anti-discrimination law that empowers them to build productive lives and relationships irrespective of gender identity or sexual orientation and place the onus to change on state and society and not the individual. 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. More than two dozen countries have legalized same-sex marriage.

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