This article is written by Srishti Agarwal of 3rd Semester of Maharaja Agrasen Institute of Management Studies, an intern under Legal Vidhiya
Abstract
Marriage is an institution that has long been embedded in human society. It reflects cultural, religious, and legal norms. Marriage was traditionally defined as the union of one man and one woman, but it has expanded to include a wide range of relationships. In this article, we look at how same-sex marriage has changed the landscape, its history, the global movement toward acceptance, and its deep societal and legal implications.
Keywords
marriage, Same-Sex Marriage, Personal Laws, Indian law, Sex Discrimination, Equal Protection
Introduction
Same-sex marriage or gay marriage is a type of union where two men or two women marry each other Marriage is a union of two individuals (of any gender) who pledge to love and cherish one another romantically and to share the responsibilities and rewards of domestic life. It is a union of the heart and mind, enriched by any form of sexual intimacy that both partners enjoy.
Although many countries have recognized same-sex marriage this type of marriage is not recognized in India. However, there has been an ongoing effort to legalize as of 2023 there are 34 countries that have legalized same-sex marriage. There were days when people were ashamed because of their choices but today people have started to realize that society has started to include all kinds of people irrespective of their choice if someone is not attracted to the opposite sex it does not mean they are wrong we just need to understand that they can have their individuality. They can love anyone they want.
In India, same-sex relationships have been a taboo topic for a long time. Marriage, according to most personal laws, is a solemn act between two people of the same gender. As marriage is a private matter that is subject to one’s religious beliefs, gay and lesbian marriage is considered to be an unholy practice. Many in India believe that this practice is a result of Western influence, but this is not the case, as our ancient texts and literature suggest otherwise. Same-sex marriage is still a concept that evokes hatred and revulsion. The Indian culture is deeply rooted in the concept of dowry, which is why same-sex marriage is discouraged. If both partners are male, or if both are female, who would be expected to pay the dowry? Furthermore, same-sex relationships are seen as unnatural or against the natural order of things. Indian society is heavily rooted in tradition, which is reflected in the legal system when it comes to interpersonal relationships, as intimacy of any kind is not accepted unless it is sanctioned through marriage, where socially sanctioned sexual intercourse takes place.
Despite the recognition of the fundamental right to marry by one’s will, the current situation does not provide homosexuals with the opportunity to assert their rights. The LGBT community faces difficulties in exercising their fundamental rights, and the legislators are not taking any steps to ensure their fundamental right to marriage is safeguarded. Most developed countries have incorporated same-sex marriage into their laws to guarantee equal legal and social protections for gay and lesbian couples. However, the advantages that heterosexual couples enjoy, such as maintenance, inheritance, and pension rights, are not available to homosexual partners.
Article 21 of the Constitution guarantees individuals the right to a life of freedom and liberty, which is not limited to physical existence, but also to a life of quality and dignity. The right to marry is essential for preserving individual dignity and for the enjoyment of a meaningful human existence, which is why courts have consistently interpreted marriage as a fundamental right under the Constitution.
The High Court of Delhi’s decision to decriminalize consensual sex between adults was overturned by the Naz Foundation in its petition against the Government of NCT of Delhi. This case highlights the need to provide homosexuals with the legal rights they are entitled to, rather than simply decriminalizing same-sex acts. It is important to note that this is not a question of legality, but of fundamental rights that affect the lives of many people. In a country such as India, modernization is accompanied by revivalist and conservative ideologies, which can impede liberal legislation. The High Court of Delhi initially dismissed the petition filed by the Naz Foundation, claiming that there was no cause for action and that it was an academic matter. Subsequently, the petition was challenged in a separate leave petition, and the Supreme Court subsequently remanded the petition for a new decision. Therefore, it is essential to note that, in the case of Koushal, a progressive approach should not be taken.
History
The fight for the legalization of same-sex marriage has been a long and difficult one. It is the result of decades of advocacy, litigation, and social shifts. The process of marriage equality began at the end of the twentieth century, with the Netherlands becoming the first country to legalize same-sex marriage in 2001. Subsequently, other nations have followed suit, accepting that love transcends gender.
Legal Landscape of Same-Sex Marriage
India does not recognize same-sex marriage but in 2018 the Supreme Court of the Republic of India ruled in the Navtej Sing Johar v Union of India[1] that homosexuality should be decriminalized in the country. However, in the wake of this landmark decision, the Supreme Court and the Government of India have failed to resolve several issues concerning homosexual relationships, including the issue of same-sex marriages. this act was introduced by the British Sec 377 of the Indian penal code which criminalizes homosexuality and was there for a long time even after independence. Section 377 is discriminatory on the grounds of sexual orientation, which is prohibited by Article 15 of the Indian constitution, which prohibits discrimination on several grounds, including Sex. By prohibiting sex discrimination, Article 15 implies that there is no uniform behavioural pattern associated with sex. Consequently, the prohibition on non-productive sexual acts imposed by Section 377 imposes traditional sexual relations on men and women. The provision thus discriminates against homosexuals because it constitutes discrimination on the grounds of sexual orientation.
In India, marriage is primarily regulated by personal laws, which are based on the religious beliefs of the individual. The various religious communities in India, such as Hindus, Muslims, Christians, and others, have their laws regarding marriage, and these generally do not permit same-sex unions.
The LGBTQ+ community continues to face considerable obstacles in India, including social stigma, legal exclusion, and limited legal protection.
Same-sex marriage has not yet been legally recognized by the Government of India. In 2017, the High Court of Delhi declared that the fundamental right to marry for same-sex individuals was a fundamental right and that the denial of marriage to same-sex individuals constituted an infringement of their fundamental rights. Subsequently, the Supreme Court annulled the judgment, ruling that the decision to recognize same-sex marriages was a matter for the legislature to decide. The Indian government and the judiciary have made some progress towards recognizing and safeguarding the rights of LGBTQ+ individuals, however, there is still a considerable distance to go before full equality and acceptance of the community is achieved. The implementation of the same-sex marriage law and the implementation of comprehensive anti-discrimination legislation is yet to be completed, and further advocacy and education efforts are necessary to guarantee the full protection of LGBTQ+ rights.
Same-sex marriage has a profound impact on individuals and society at large. It offers legal advantages to same-sex couples, such as inheritance rights, healthcare coverage, and immigration benefits. Additionally, it conveys a strong message of tolerance and equality, thereby promoting a more inclusive society.
Countries That Have Recognized Same-Sex Marriage
In recent years, there has been a marked increase in global acceptance of the rights and equality of LGBTQ+ individuals. By the time of my most recent knowledge update, which took place in January of 2022, a number of countries had legalized the marriage of same-sex couples, such as the United States of America, Canada, the United Kingdom, Germany, Australia and a number of other countries. These legal developments reflect a global movement towards recognizing the basic right of every individual to marry their partner of the same sex, regardless of their gender. There were still some regions in which same-sex marriages were still illegal or controversial, however, the trend was in the direction of a more open and equitable world in which love and commitment is celebrated without prejudice. It is important to note, however, that the legal situation may have changed further since I last updated, so it is recommended to consult the most current sources for the latest information.
At present, 34 countries have legalized same-sex marriage. Denmark was the first country to legalize registered partnerships for same-sex couples in 1989, which is an alternative to marriage.
Countries that have legalized in 2023
Andorra-it became the 34th country that legalized same-sex marriage. On 21 July 2022, the Parliament of Andorra voted to grant same-sex couples the right to enter into civil unions, which entered into force at the beginning of 2023. This was the first time same-sex couples had been granted the right to enter civil unions in Andorra, which had been established in 2014.
Countries that have legalized in 2022
Slovenia- On 9 July 2022, the Court of Constitutional Law of the Republic of Slovenia unanimously declared the constitutional prohibition of same-sex marriages and adoption to be invalid. The ruling took effect immediately. The Court of Constitutional Law gave the Parliament six months to modify the legislation to comply with the decision. In October, the Parliament approved an amendment that codifies same-sex marriages.
Cuba-Following a national referendum held on September 25, 2022, same-sex marriage was officially legalized in Cuba. A majority of Cuban citizens voted in favour of a family code that provided for the legalization of same-sex marriage and the adoption of children, as well as other provisions targeting women, children, and the elderly.
Mexico-Marriages between same-sex couples in Mexico were legalized for the first time in the capital city of Mexico City after the passage of a law in 2009. In 2015, Mexico’s Supreme Court declared that state laws prohibiting same-sex unions were invalid, however, it took several years for certain states to accede to the ruling. The last of Mexico’s 32 states to legalize same-sex marriages was Tamaulipas, which did so in October 2022.
Countries that have legalized in 2021
Chile-In 2021, the President of Chile signed a legal act granting same-sex couples the right to marry in the South American nation, with the implementation of the law set for March 2022. This vote marked the culmination of four years of efforts, which began with the presentation of a draft law in 2017.
Countries that have legalized in 2020
Costa Rica-In 2018, following a request from the Inter-American Tribunal on Human Rights, Costa Rica’s Supreme Court declared the constitutional prohibition of same-sex marriage to be invalid and to be automatically annulled within 18 months unless legislative measures were taken. Consequently, at midnight on 26 May 2020, Costa Rica became the first Central American country to legalize same-sex marriage.
Countries that have legalized in 2019
Austria-In 2017, the Austrian Supreme Court ruled that the prohibition of same-sex marriage based on sexual orientation constituted discrimination. Legalization began on January 1, 2019.
Taiwan-Legislators in Taiwan have passed a bill to legalize same-sex marriage, making it the first Asian country to do so. This comes almost two years after Taiwan’s Constitutional Court declared a law defining marriage as a union between a male and female person to be invalid.
Ecuador-A majority of Ecuador’s Supreme Court ruled in favor of a homosexual couple challenging the country’s civil registry, which had previously rejected their marriage application on the grounds of their sexual orientation. The ruling entered into force in July of the same year.
Countries that have legalized in 2017
Australia-Following the results of a postal survey, the Australian Parliament voted in favor of the legalization of same-sex marriages, with the majority of Australian citizens voting in favor of the amendment. The majority of Parliamentarians approved the measure, which defines marriage as the union of two persons.
Germany-At the end of June 2017, German lawmakers approved a bill that was overwhelmingly supported by the public. At the same time, German Chancellor Angel Merkel abstained from voting on the bill but allowed members of her ruling coalition to abstain based on their religious beliefs. On October 1, 2017, Germany celebrated the first legal marriage between same-sex couples.
Malta-Maltese legislators approved the decriminalization of same-sex marriage on the Mediterranean island of Malta on Wednesday, in line with President Joseph Muscat’s pledge to introduce such legislation during his first term in office.
Finland-In November 2014, the Finnish Parliament approved a legal act to recognize same-sex marriages in Finland. The act was signed into law by the President of Finland in February 2015 but did not enter into force until March 2017.
Countries that have legalized in 2016
Columbia-Colombia legalized same-sex marriage at the end of April 2016, following a ruling by the country’s highest court that same-sex marriage is constitutional. This was the second time in Colombia that same-sex partners were allowed to join a civil partnership.
Countries that have legalized in 2015
Luxembourg-Luxembourg legalized same-sex marriage on January 1, 2015, after the Chamber of Deputies approved a bill in June 2014. Luxembourg’s Prime Minister, who is openly homosexual, was one of the first European Union leaders to marry his partner.
Ireland-Ireland became the first country in the world to legalize same-sex marriage by a popular referendum at the end of May 2015. In 2017, the country elected Leo Varadkar as its first openly gay Prime Minister.
USA-It took until June 2015 for same-sex marriages to become legally recognized across the United States, following a shift in public opinion in favor of the practice. This occurred after some states approved same-sex marriages in 2003, but it was not until June 2015 that the United States Supreme Court upheld the constitutional right to marry same-sex partners and mandated that states recognize same-sex marriages.
Countries that have legalized in 2014P
United Kingdom-In 2020, Northern Ireland became a legal marriage partner for same-sex couples six years after England and Wales did so. Scotland adopted its legislation in 2014.
Countries that have legalized in 2013
New Zealand-In April 2013, the New Zealand Parliament passed a legal act granting same-sex couples the right to marry. The act was given Royal Assent a few days later, making New Zealand the first country in Asia-Pacific to recognize same-sex marriages, with the first ceremonies taking place in October.
Uruguay-Uruguay became the second Latin American country to legally recognize the marriage of same-sex partners after Argentina in May 2013, following the signature of the bill into law by the former President of the Republic of Argentina, Jose M. Mujica. Before this, Uruguay had previously permitted same-sex individuals to enter into civil unions.
France-In May 2013, French President Francois Hollande signed a bill into law, which had faced considerable opposition from the country’s conservative opposition party.
Brazil-In 2013, the National Council of Justice of Brazil declared that same-sex marriage licenses should be granted to same-sex couples.
Countries that have legalised in 2012
Denmark-In 2013, the National Council of Justice of Brazil declared that same-sex marriage licenses should be granted to same-sex couples.
Following the passage of the same-sex marriage law by Denmark’s legislature in June 2012, Denmark’s queen Margrethe gave her royal approval for same-sex marriage days later. Same-sex domestic partnerships were first recognized in Denmark in 1989.
Countries that have legalized in 2010
Portugal- In Portugal, same-sex marriage was legalized in June 2010, following the passage of legislation earlier that year. The Portuguese Parliament approved the law in January, the country’s Constitutional Court reviewed it in April, and the President of Portugal ratified it in May.
Iceland- On June 11, 2010, the Icelandic Parliament passed a bill to legalize gender-neutral marriages unanimously. In February 2009, Iceland’s first female Prime Minister, Johanna Sigurdurdardottir, became the world’s first openly gay Prime Minister.
Argentina- Argentina legalized gay marriage in July 2010, making it the first country in Latin America to do so.
Sweden-Sweden legalized same-sex marriage on May 1st, 2009, after the Swedish Parliament approved the marriage law in early April. Same-sex civil unions have been allowed in Sweden since 1995.
Norway-Norway legalized same-sex marriage on January 1, 2009, after a law was passed by Norwegian parliamentarians in June of the previous year. The 2008 law replaced the 1993 law that allowed same-sex civil unions.
South Africa-The South African Parliament approved same-sex marriage at the end of November 2006, almost a year after South Africa’s Constitutional Court declared the country’s previous marriage laws invalid. South Africa was the first African country, and the first in the Southern Hemisphere, to legalize same-sex marriage.
Canada-The legalization of same-sex marriage in Canada began in 2003 with several court cases across the country. In July 2005, Canada’s federal legislature passed a law that legalized same-sex marriage across the country.
Spain-In Spain, the movement for the legalization of same-sex marriage was largely initiated in 2004 under the administration of Prime Minister Jose Luis Rodríguez Zapatera. The following year, the Spanish Parliament approved an enabling act in late June 2005, which entered into force at the beginning of July.
Belgium-Belgium legalized same-sex marriage at the end of January 2003, following a parliamentary vote in favour of a new law that provided same-sex couples with rights analogous to those enjoyed by heterosexual couples. The law entered into force later that year.
Netherlands-In late December 2000, same-sex Dutch couples were granted marriage and adoption rights, which entered into force the following April and paved the way for future legislation around the world.
FUTURE OF SAME-SEX MARRIAGE
By the early 21st century, it was evident that the development of same-sex marriage rights depended to a large degree on the interaction of a nation’s institutional forces. Parliamentary unitary systems such as the Netherlands Spain and the United Kingdom relied heavily on legislatures and their successors to pass or repeal such laws. In other countries, such as the United States and Canada, which have federal political structures and powerful courts, and play an important role. For another group of countries, including Switzerland and many states in the U.S., institutional rules allowed voters to directly influence legislation.
In some countries, such as those affected by war or natural disasters, gay marriage is simply not a pressing issue. In other countries, the wide range of ideas about sexuality and the meaning of marriage, combined with national pluralism and the fact that secularism and religious belief often clash in complicated and unexpected ways, means that the debate will not end anytime soon or easily.
CHALLENGES FACED BY SAME-SEX COUPLE
In India, same-sex partnerships face a variety of difficulties due to the absence of legal recognition and wider societal attitudes. These same-sex partnerships often face legal obstacles and social challenges in terms of adoption and surrogate parenting. Indian laws regarding adoption and surrogate parenting are not always clear and can lead to difficulties in terms of property rights and financial arrangements, as well as the dissolution of the partnership. The same-sex couple may also face difficulties in terms of healthcare services, particularly in cases where the same-sex partner is not recognized as a legal family member. This can hurt the couple’s mental and emotional well-being.
LGBTQ+ individuals in India often face the stigma and discrimination associated with coming out to their family members. Many of them are afraid of being rejected by their family, which can have a detrimental effect on their relationships, leaving them isolated or even homeless. They may face prejudice, harassment, or outright rejection from their family, community, or workplace.
In India, there has been progress in recognizing the rights of LGBTQ+ individuals and the decriminalization of same-sex relationships, however, the process of legal recognition of same-sex unions is still in progress. This is a multifaceted and intricate issue, which is affected by legal, social, and cultural elements. As the law changes and attitudes evolve, it is hoped that India will eventually recognize same-sex unions and guarantee equality and fairness for all its inhabitants.
Importance
It has long been argued that the importance of same-gender marriage in the promotion of an inclusive society cannot be overstated, as the country is overcrowded and the encouragement of marriage equality could lead to a decrease in population growth while simultaneously increasing adoptions of orphans. However, the seeds of prejudice in our society are not easily eradicated, as our traditions and social construct differ from those of Western societies. It may take decades or even centuries to bring about a change in mind-set, but it must start somewhere. Acknowledging that all individuals are equal and that their preferences and choices regarding whom they choose to marry should not be grounds for discrimination is essential for achieving this.
Marriage vs Same-Sex Marriage
Civil Union is a legal form of marriage that provides the same legal protection to same-sex couples as marriage does to heterosexual couples. Marriage is a legally recognized religious institution that permits two individuals (usually a man and a woman) to legally marry. As same-sex marriage does not fall within the scope of the religious definition, the Civil Union was created to provide the same legal protection for same-sex couples who choose to marry.
It is a fundamental violation of human rights to deny a person the right to express their own choice to marry. If the right to express one’s choice is denied, it is difficult to consider the sanctity of the marriage in its entirety. When two consenting adults marry, they do so of their own volition; they have consummated their relationship; and they believe that they are entitled to do so and that any violation of this right is a violation of the Constitution. This is a fundamental right protected by Article 19 and Article 21 of the Constitution, as well as by Article 16 of the International Convention on Human Rights.
Conclusion
The legal and social landscape in India has been characterized by a complex and ever-evolving landscape of challenges. Same-sex marriage is still not recognized by Indian law, thus depriving same-sex individuals of the same rights and protections as heterosexual couples. Despite these difficulties, some progress has been made in recent years, with 2018 being the first year in which same-sex consensual relationships were decriminalized. This represents a major step forward in the recognition of LGBTQ+ rights and human rights in India.
The potential solutions to the issue of same-sex marriage are numerous and intricate. However, it remains to be determined whether such an approach is desirable and feasible. There is a growing consensus that the current policy of criminalizing same-sex sexual activity does not serve the interests of homosexuals or society as a whole. Therefore, it is necessary to legitimize same-sex marriage to progress towards human rights.
The progressive movement towards marriage equality in India has been a long and difficult process, but it is indicative of the larger global effort to improve the rights of LGBTQ+ individuals. Efforts are ongoing to combat discrimination and foster acceptance of same-sex couples. The experiences and difficulties of same-sex marriage in India are a reminder that the battle for equality and recognition is far from over, and progress is being made incrementally. We strive to ensure that all individuals in India, regardless of gender or sexual orientation, will be able to marry their partner in the future.
REFERENCES
[1]AIR 2018 SC 4321, (2018) 10 SCC 1
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