In 2009 Naz foundation v Government of NCT of Delhi questioned the constitutional validity of section 377, which makes sexual activities against the order of nature. The court said that a person cannot enjoy his life without dignity and privacy provided under article 14 and section 377 is violative of the same under constitution of India. It discriminates a person on the basis of sex and Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth i.e the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them and thereafter looking into this matter the court contended that the section must be decriminalised. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution. 

The Naz foundation case also mentioned that Sex does not only mean biological sex but also sexual orientation and discrimination on the basis of sexual orientation would also be violative of Article 15 of our constitution. So In 2018, a Five Judge bench in the famous landmark judgement of Navtej Singh Johar (Navtej Singh Johar v Union of India Ministry of law and Ors) scrapped section 377 of Indian Penal Code and unanimously decriminalised section 377. After two years of decriminalisation of section 377 still same sex couple rights are not recognised in india. They face trouble while getting their marriages registered as it is said that our country does not recognise same sex marriages. Marriage is only between a man and a woman.

The Special Marriage Act was enacted to provide a special form of marriage by any person in India and all Indian nationals in foreign countries irrespective of the religion. Focusing on ‘any person’, that means any person irrespective of their caste, religion and sex .

Section 5 under Hindu Marriage Act,1955 mentions Conditions for a Hindu marriage. A marriage may be solemnized between any two Hindus, if the conditions are fulfilled and the condition does not mention marriage of opposite sex only. InFact the marriage is a valid marriage irrespective of the sexuality of couples.

However with all these issues after two years the rights in marriage of same-sex couple are at our doorstep. Recently a petition was filed in Delhi high court seeking a declaration for rights of same sex couples marriage under Hindu Marriage Act, 1955. The petition was filed on behalf of the LGBTQ activist, “allowing ‘any two hindus’ to marry without discriminating between homosexuals and hetrosexuals. Despite the fact that there is no bar under any law against gay marriage , the same is being not registered throughout the country”, the activist argued.

The Supreme court has recognised the right to choose sexual identity as a fundamental right as part of the right to privacy and individual autonomy under article 21 of the constitution. It says that without dignity and privacy a person cannot live it’s life freely. It has, through a long history of jurisprudence, passed judgements and aimed at protecting couples and relationships that went against societal norms. These contentions where put through by it’s landmark judgements in NALSA Case(2014) and Navtej Singh Johar case (2018) which legalise homosexuality. Discriminating on the basis of sexuality and not allowing them to choose their life partner is a violation of right to equality.

Right to marry has also been stated under human rights charter within the meaning of the right to start a family. The right to marry is a universal right and is available to everyone irrespective of their sexual orientation and gender identity. In no way it’s validity can be questioned. Section 8 clause 5 of Hindu Marriage Act, Registration of Hindu marriages says, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry. Somewhere or the other way even our laws does not refuse to accept same sex marriage it is only because of the societal issue that they have been declined to enjoy their right to marry.

Our Solicitor General Tushar Mehta opposed the petition and said that a marriage is between husband and wife and the judgement of supreme court on Navtej Singh Johar was only to decriminalise consensual homosexual activity “nothing more and nothing less” and our country’s legal system does not accept same-sex couple marriages. The court had different points on it and understood the issue,said that firstly the couple should try getting themself registered and if in any case they face issues regarding the registration of their marriage, they may reach out to court for help.

Apart from the emotional and social benefits of having one’s union officially recognised ,right to property or inheritance is also one of the practical benefits same sex couple would enjoy. For example a company’s medical insurance covers only husband/wife meaning only hetrosexual couples are recognised then a same sex partner won’t get the benefits of life insurance.

In tamil Nadu, the term bride was redefined by the Madurai bench of the Madras High Court in 2019. The court said, “the term ‘bride’ as per the hindu marriage act would also mean a transexual and not just refer to someoe who has been born as a woman. The term bride cannot have a static and immutable meaning.”

It is definitely not easy for society to accept this but as our generation is evolving, it becomes important that with time our laws should also keep on changing according to the requirement and best for our development. Our constitution provides us liberty to life to live with dignity. Discrimination on such issues would not only harm the community and let them feel as aliens on this earth but also violates our very basic fundamental right. Not only hindu marriage act or special marriage act needs reformation but every law should be reformed which bars same sex couples to enjoy their right to life and liberty to choose their partner.

The majority in our society is yet to open up to the rights of sexual minorities. Hence, measures of mass awareness and public sensitization regarding the rights of sexual minorities are important. 

References:

https://indiankanoon.org/doc/168671544/
https://www.livelaw.in/top-stories/our-culture-law-does-not-recognize-the-concept-of-same-sex-marriages-centre-tells-delhi-hc-162902
https://indiankanoon.org/doc/100472805/
https://indiankanoon.org/doc/590166/
Author: Ashi singh, University of Delhi