Looking beyond the binary to a spectrum on same sex marriage

Context:

• Recently, when the cases surrounding the question of same-sex marriages came up before the High Court of Delhi, the Union Government had the matter adjourned and overlooked the basic notion that the plight of persons in same-sex and queer relationships looking after each other — without the legal protection of marital relationships — was exacerbated by the pandemic.
• Nevertheless, given the march of law — both international and domestic — in the direction of expanding human rights, jurisprudence necessarily means that the provision of marriage rights to same-sex and queer couples is only a matter of time.

Relevance:

GS-II: Polity and Governance (Judiciary and Important Judgements), GS-I: Indian Society, GS-II: Social Justice (Government Interventions and Policies, Issues arising out of the design and implementation of Government Policies)

Mains Questions:

A delay in the provision of marriage rights to same-sex couples would fall foul of constitutional guarantees, judgments. Discuss. (10 marks)

Dimensions of the Article:

1. Courts and civil rights regarding same-sex marriage
2. Recently in news: Government opposed same-sex marriage in HC
3. Examples of International jurisprudence
4. Important Supreme Court Decisions in India regarding same-sex marriage
5. Expanding scope of marriage
6. Way Forward

Courts and civil rights regarding same-sex marriage

• In India, marriages solemnised under personal laws such as the Hindu Marriage Act, 1955, Indian Christian Marriage Act, 1872, Muslim Personal Law (Shariat) Application Act, 1937 and so on.
• At present, though same-sex and queer marriages are not clearly recognised in India, we are not bereft of judicial guidance.
• In the case of Arunkumarand Sreeja vs The Inspector General of Registration and Ors. [W.P.(MD)No. 4125 of 2019 & W.P.(MD)No. 3220 of 2019], the Madurai Bench of the High Court of Madras employed a beneficial and purposive interpretation holding that the term ‘bride’ under the Hindu Marriage Act, 1955 includes transwomen and intersex persons identifying as women.
• Therefore, a marriage solemnised between a male and a transwoman, both professing the Hindu religion, is deemed to be a valid marriage under the Act. The import of this judgment cannot be overstated as it expands the scope of a term used in the Hindu Marriage Act, 1955 in a progressive manner and sets the stage for re-imagining marriage rights of the LGBTQIA+ community.

Legality of same-sex marriages in India

• The right to marry is not expressly recognized either as a fundamental or constitutional right under the Indian Constitution.
• Though marriage is regulated through various statutory enactments, its recognition as a fundamental right has only developed through judicial decisions of India’s Supreme Court.
• Such declaration of law is binding on all courts throughout India under Article 141 of the Constitution.

Recently in news: Government opposed same-sex marriage in HC

• Petitions, seeking recognition of same sex marriages under the Hindu Marriage Act (HMA), 1955 and the Special Marriage Act (SMA), 1954, were filed in 2020 and in the hearing, the Central Government opposed same-sex marriage in Delhi High Court stating that a marriage in India can be recognised only if it is between a “biological man” and a “biological woman” capable of producing children.
• The Central Government said that fundamental right under Article 21 is subject to the procedure established by law and it cannot be expanded to include the fundamental right for same sex marriage to be recognised under the laws which in fact mandate the contrary.
• The Government also argued that there exists a “legitimate State interest” in limiting the recognition of marriage to persons of opposite sex. The considerations of “societal morality” are relevant in considering the validity of a law and it is for the Legislature to enforce such societal morality and public acceptance based upon Indian ethos.
• The primary line of argument was that interference with the existing marriage laws would cause complete havoc with the delicate balance of personal laws in the country.
• One of the Government’s arguments was also that living together as partners or in a relationship with a same-sex individual is “not comparable” with the “Indian family unit concept” of a husband, wife and children, arguing that the institution of marriage has a “sanctity”.

Examples of International jurisprudence

• In 2005, the Constitutional Court of South Africa unanimously held that the common law definition of marriage i.e., “a union of one man with one woman” was inconsistent with the Constitution of the Republic of South Africa, 1996. As a result of the verdict, the Civil Union Act, 2006 was enacted, enabling the voluntary union of two persons above 18 years of age, by way of marriage.
• In 2007 in Australia, the reforms to civil rights of queer community were prompted by then judge of the High Court of Australia asking for the judicial pension scheme to be extended to his gay partner. After initial opposition from the Federal Government, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 came to be enacted to provide provide equal entitlements for same-sex couples in matters of, inter alia, social security, employment and taxation.
• Similarly, in England and Wales, the Marriage (Same Sex Couples) Act 2013 enabled same-sex couples to marry in civil ceremonies or with religious rites.
• More recently, in 2015, the Supreme Court of the United States decided that the fundamental right to marry is guaranteed to same-sex couples. While doing so, the Supreme Court of the United States held the denial of marriage rights to same-sex couples to be a “grave and continuing harm, serving to disrespect and subordinate gays and lesbians”.
• Across the world, the recognition of the unequal laws discriminating against the LGBTQIA+ community has acted as a trigger to reform and modernise legal architecture to become more inclusive and equal.

Important Supreme Court Decisions in India regarding same-sex marriage

Shafin Jahan v. Asokan K.M. and others 2018

• While referring to Article 16 of Universal Declaration of Human Rights and the Puttaswamy case, the SC held that the right to marry a person of one’s choice is integral to Article 21 of the Constitution.
• The Judgement held that the right to marry is intrinsic to the liberty which the Constitution guarantees as a fundamental right, is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty.

Navjet Singh Johar and others v. Union of India 2018

• The SC held that members of the LGBTQ community “are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution” and are entitled to equal citizenship and “equal protection of law”.

Expanding scope of marriage

• The domain of marriages, including religious marriages, cannot be immune to reform and review. Self-respect marriages were legalised in Tamil Nadu (and subsequently, in Puducherry) through amendments to the Hindu Marriage Act, 1955.
• Self-respect marriages, commonly conducted among those who are part of the Dravidian Movement, have done away with priests and religious symbols such as fire or saptapadi. Instead, solemnisation of self-respect marriages only requires an exchange of rings or garlands or tying of the mangalsutra. Such reform of the Hindu Marriage Act, 1955 to bring self-respect marriages under its very umbrella, is seen as a strong move towards breaking caste-based practices within the institution of marriage.
• Similarly, understanding the needs of the LGBTQIA+ community today, the law must now expand the institution of marriage to include all gender and sexual identities. At least 29 countries in the world have legalised same-sex marriage. It is time that India thinks beyond the binary and reviews its existing legal architecture in order to legalise marriages irrespective of gender identity and sexual orientation.

Way Forward

• The 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.

-Source: The Hindu