“They might be a minority, but the majority cannot decide the rights of the minority,” utters the Supreme Court advocate during the hearing on same-sex marriage.
Same-Sex Marriage in India
On January 6, 2023, the Supreme Court of India decided to address the pending petitions for same-sex marriage pending in different high courts.
Homosexuality was decriminalized in India in 2018. But, same-sex marriages are still not accepted by the law.
However, in a discussion during parliament on the same petition, BJP minister Sushil Modi’s position was completely different. According to him, “Same-sex marriages go against Indian culture.” He also added, “Same-sex marriage is neither recognized nor accepted in any uncodified personal law.”
The statement from the BJP MP manifested a completely different outlook and belief for the Indian government regarding same-sex marriages. Marriage laws in India are governed by personal laws, which vary based on an individual’s religion.
Currently, Indian law defines marriage as a union between a man and a woman. Hence, the concept of same-sex marriage is a hard pill to swallow for Indian culture and society.
Legalizing Same-Sex Marriges – Fighting for Equality
The current situation of the LGBTQ+ community in India is not yet entitled to the same legal recognition as other communities. The LGBTQ+ members often live in shadows, rejected by their families or society at large.
Their efforts to legalize same-sex marriage in India are still ongoing, with various advocacy groups and individuals working towards achieving marriage equality with little hope in sight.
In 2018, the Supreme Court of India decriminalized homosexuality. According to the law, same-sex couples can live together legally in India.
Then a question might arise – what could be the reason behind not legalizing same-sex marriage?
Understanding What is the LGBTQ+ Community-Fighting?
Here, the battle is to legalize same-sex marriage and get the same legal rights and protections that heterosexual couples enjoy or gain in India.
According to the law, a same-sex couple cannot adopt a child. The law also allows a single woman to adopt a child of any gender. But a single man is eligible to adopt only a male child.
Thus, LGBTQ+ individuals can apply for the adoption of a child as a single parent. But their partner will not have legal rights to the adopted child. Thus, supporters of LGBTQ+ rights emphasize how such laws give rise to prejudice in society.
In India, there are many family laws that regulate matters of adoption, surrogacy, inheritance, etc. However, in all such laws, “Marriage” plays a crucial part. As LGBTQ+ couples cannot legally marry, they are deprived of rights afforded by these laws.
Moreover, the LGBTQ+ couple is not eligible to get life insurance for their partner. They cannot buy a joint home loan as there is no legal recognition of their marriage, and they experience a lack of safety and security from society and the government. Further, there is no law specifying who inherits the property in case of the absence of a will. Thus, the LGBTQ+ community wants to legalize same-sex marriage in India.
The On-going Arguments by LGBTQ+ supporters
The LGBTQ+ supporters argue that the Supreme Court of India has intervened in many inter-caste and inter-religious marriages in the past. Then, why can’t the Supreme Court support same-sex marriages? Many legal experts have pointed if we legalize same-sex marriage, we do not necessarily involve in changing the articles of the Constitution.
All it requires are a few amendments to the Special Marriage Acts. Legal experts claim that the act should be made gender-neutral. That is if a man’s marriage to a woman is a legal procedure, then same-sex marriage should be legally recognized under the Act.
Changing the Law
The second argument that LGBTQ+ supporters proposed is that by changing the law. They argue that by changing the law, the people’s opinions towards them will also change.
According to the reports, after the decriminalization of homosexuality, there has been an increase in societal acceptance of the LGBTQ+ community.
Existence of Same-Sex Relationships in the History
The third argument that LGBTQ+ supporters proposed is that same-sex relationships in India date back to the past. According to Harbans Mukhia, a well-known historian, homosexuality in India was criminalized by the British government under Indian Penal Code 377 in the 19th century due to their Christian belief system.
But both Hindu and Muslim histories show multiple mentions of homosexual relationships in India. For example, the Khajuraho temple in Madhya Pradesh has an ancient sculpture chronicling four women having homosexual or the Hindu text Kamasutra.
Moreover, Devdut Patnayak, the famous Indian author, shared that in the Rigveda, Mitra, and Varuna, both male gods, are said to have a child. In the Mahabharata, the story of Shikandi, who was responsible for the death of Bhisma. She was born as a daughter but raised as a man.
In Muslim history, Shah Hussain, the Sufi poet, is believed to have fallen in love with a Hindu boy, Madho Lal. Even a Mughal Emperor had a similar experience. In his Memoir, Baburnama, Babur enunciates his attraction towards a boy named Baburi in Kabul.
However, the counterargument is: Indian history may have seen same-sex relationships, but there is no evidence of same-sex marriages.
India Is Not Ready for Same-Sex Marriage
The people who oppose the legalization of same-sex marriage in India argue that same-sex marriage violates the fundamental unit of our society—the family. Many also argue that legalizing same-sex marriages is an acceptance of Western culture and a violation of Indian values.
Moreover, Indian society also believes that marriage is not just an instrument of enjoyment but it is procreation. As same-sex couples can’t procreate, what’s the use of their marital union?
However, India’s society and culture are designed on the basis of exceptions, which makes India not ready. Moreover, to make Indian society accept such a community, the first thing it needs is a change in their perspective of thinking and adoption of what is truthful and natural.
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