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Is India ready for same-sex marriage

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Naman Shukla
Naman Shukla
Naman Shukla is a Corporate and Financial law post-graduate from O. P. Jindal Global University, Haryana. He is currently working as an Assistant Professor of Law at IFIM Law School, Bangalore. He has his law graduation in B.A.LL.B. (Hons.) from the School of Law, Fair Field Institute of Management and Technology, New Delhi affiliated to Guru Gobind Singh Indraprastha University (GGISPU) New Delhi.

Over the years, India has made progress towards adopting more liberal regulations and embracing the LGBTQ+ population. However, especially in terms of same-sex marriage, the nation has not yet completely acknowledged the rights of the community. The most recent Supreme Court case involving Anjali Chauhan and Sukhdeep Kaur, who filed a petition seeking formal recognition of their marriage, has lately brought this issue back to the fore.

The case has sparked a discussion over whether India is ready for same-sex Marriage. Different viewpoints have been expressed on both sides of the debate regarding same-sex marriage in many different nations. Even though some nations have made same-sex marriage legal, others have not, and India is one of those nations. In this article, we will analyse why same-sex marriage is not yet acceptable in India, taking a look at a variety of aspects including cultural views, governmental policies, and popular perceptions. To give a thorough study of the problem, we will also look at precedents and instances from other nations.

Anjali Chauhan and another filed a petition to have their marriage recognised legally in the case Anjali Chauhan and another v. Government of NCT of Delhi and others. The Special Marriage Act, which permits interfaith and intercaste weddings, was used by the pair to be married in 2019. On account of the fact that they were both women, the registrar of weddings refused to allow them to register their marriage. The petitioners claimed that Articles 14 (right to equality) and 21 (right to life and personal liberty) of the Constitution guaranteed them the freedom to marry.

Article 14 of the Indian Constitution states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” This implies that everyone should be treated equally under the law, regardless of gender or sexual orientation. According to Article 21 of the Constitution, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This means that everyone has the freedom to live their life whatever they choose, provided it doesn’t damage other people.

The petitioners referred to the Supreme Court’s judgement in Navtej Singh Johar v. Union of India, which had overturned Section 377 of the Indian Penal Code and acknowledged the rights of LGBTQ+ people. The Navtej Singh Johar decision, which decriminalised homosexuality and increased the community’s legal protections, was a landmark decision. The court ruled that adult voluntary sexual actions performed in private between consenting adults cannot be criminalised and acknowledged the right to privacy as a basic right.

The Navtej Singh Johar case, however, did not immediately address the problem of same-sex marriage. The ruling did not recognise same-sex partnerships or offer any kind of legal protection for LGBTQ+ people in relationships; it just decriminalised homosexual activities. The Anjali Chauhan and Sukhdeep Kaur case aims to close this legal loophole and advance same-sex marriage’s legalisation in India.

It’s a complicated question to ask if India is prepared for same-sex Marriage. On the one hand, there are many who contend that same-sex marriage would be an unacceptably radical departure from conventional norms in India’s conservative society. They also note that legalising same-sex marriage may spark opposition because many Indians still have traditional attitudes on homosexuality.

On the other side, they contend that India is prepared for same-sex unions and that it is past time for the nation to acknowledge the rights of LGBTQ+ people. Citing the hijra community and other marginalised groups, they emphasise that India has a long history of accepting gender and sexual diversity. They also contend that legalising same-sex marriage would be a logical extension of the Supreme Court’s ruling in Navtej Singh Johar v. Union of India, which was a step in the right direction.

Problems :

  1. Cultural Principles:

The cultural views of India are one of the main reasons why the country is not ready for same-sex unions. Marriage is only recognised between a man and a woman in India since it is seen as a holy institution. For instance, a man and a woman are united during a traditional Hindu wedding ceremony, which has its own rituals and traditions. In addition, India is a nation that places a high priority on family and community. Since maintaining family ties is important, it’s not unusual for kids to continue living with their parents well into adulthood. In India, the idea of a nuclear family, which consists of a spouse and their kids, is still not very common. Given this cultural setting, the concept of same-sex marriage is frequently perceived as an anomaly that defies societal norms and traditional values.

  • Political and legal systems:

The legal and political structures that govern India are another reason why it is not ready for same-sex unions. Indian law is founded on the Constitution, a constitutional democracy that guarantees equality and against discrimination. However, same-sex marriage is not expressly permitted by the Constitution. In addition, Section 377 of the Indian Penal Code, which prohibited consensual sexual actions between adults of the same sex, was only repealed in 2018, decriminalising homosexuality.

Additionally, the political climate in India does not support the legalisation of same-sex unions. Political parties in India, a nation with a rich religious and cultural history, hold varying views on the subject. While some political parties are in favour of same-sex marriage, others are against it, and the topic is frequently used as a political ploy to win over voters. It seems doubtful that the Indian government would adopt a progressive posture on the subject of same-sex marriage anytime soon given this situation.

Examples from the Globe

India is not yet ready for same-sex marriage, although other nations have adopted a more liberal policy. The Netherlands was the first nation to legalise same-sex unions in 2001, and a number of other nations have subsequently done the same. As an example, the United States legalised same-sex marriage in 2015 because of a significant ruling by the Supreme Court in the case of Obergefell v. Hodges {135 S. Ct. 2584 (2015)}

Following a national postal survey in which 61.6% of respondents voted in favour of the change, same-sex marriage became legal in Australia in 2017. The ruling was eventually upheld by the Australian parliament, establishing legality for same-sex unions there.

In recent years, same-sex marriage has also been legal in nearby nations like Taiwan and Nepal. Taiwan became the first nation in Asia to legalise same-sex unions in 2019, while Nepal was the first nation in South Asia to do so in 2008. These instances show how cultural norms and judicial systems may develop and alter through time, paving the road for the acceptance of LGBTQ+ rights.

It is important to remember that these developments did not occur overnight and were the product of years of lobbying and activity on the part of LGBTQ+ people and their supporters. It is crucial to understand that every nation has a different background, and that what works in one place would not necessarily work in another.

In conclusion, cultural beliefs, legal and political structures, and public perceptions all contribute to the fact that India is not yet ready for same-sex marriage. This does not imply, however, that the nation will never be prepared for it. Change is taking place, however slowly, as seen by the growing understanding of LGBTQ+ rights and the increased visibility of LGBTQ+ people in India. The political and legal systems may change to promote the acceptance of same-sex marriage as more people become informed about the topic and comprehend the value of equality and non-discrimination.

Even while India might not be prepared for same-sex unions right now, it is crucial to keep the dialogue going and seek to build a culture that is more tolerant of everyone, regardless of their sexual orientation or gender identity. We can create the conditions for a better and more equitable future for everybody by taking lessons from other nations’ experiences and applying them to the Indian environment.

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Naman Shukla
Naman Shukla
Naman Shukla is a Corporate and Financial law post-graduate from O. P. Jindal Global University, Haryana. He is currently working as an Assistant Professor of Law at IFIM Law School, Bangalore. He has his law graduation in B.A.LL.B. (Hons.) from the School of Law, Fair Field Institute of Management and Technology, New Delhi affiliated to Guru Gobind Singh Indraprastha University (GGISPU) New Delhi.
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