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Written by: Krishnapriya M S
INTRODUCTION
Since the commencement of judgment on decriminalizing same-sex relationships the judiciary had troughed a ray of hope for the heterosexual couples to get legal recognition and to change the mindset of people. Law is an instrument to change society hence the legal recognition of their relationship is essential to remove the social stigma over them. This will be also helpful for them to seek legal remedies and they could lead a family life with their legitimate children. In the current scenario, same-sex couples could not either adopt a child or use ART techniques for the procreation of children which violates their natural right for having a child. Legal recognition of such relationships will solve the problem.
RECOGNISING SAME-SEX MARRIAGES
In personal laws marriage is considered as a sacrament institution for the procreation of children. Marriages in India are governed by personal laws and the Special Marriage Act. There are several instances in which the same-sex couple had done religious ceremonies to get married. There are instances wherein the couple had exchanged garlands, performed religious ceremonies, and entered into friendship contracts (maitrikarar). [1] The personal laws could be made gender-neutral in the case of the Hindu marriage act 1955 the terms bride and bridegrooms could be interpreted in a gender-neutral manner. But the related statutes which include Hindu adoptions and maintenance act 1956, Hindu minority and guardianship act 1956, Guardians and wards act 1890, Hindu succession act 1956 are not gender-neutral in nature so the remedies available for normal couples will not be available for homosexual couples. The case of the special marriage act which recognizes the marriage without the involvement of religion could be made a gender-neutral statute by amending sec 4 (c) of the special marriage act. The Christian marriage act specifies the age of competent men and women to enter in marital relation as 21 and 18 respectively. The Muslim laws are governed more by the shariat laws which have a very different approach from Hindu and Christian laws it is more equivalent to a contractual form of relationship for the procreation of children. All the personal law statutes and Special Marriage Act include only heterosexual unions[2]. So the amendment of all existing statutes will create a huge problem and it is commendable to have a special statute for recognition of same-sex marriages or amendment of special marriage act 1954, divorce, custody of the child, etc. This will make their relationship more legally and socially acceptable so that it will expand the hope for them to adopt a child or to use ART techniques for procreation of children a selected potion of existing laws could be made gender-neutral either by amendment or judicial interpretation. The amendments might think to be a cumbersome task, but the government should think about passing gender-neutral statutes for equal protection of all sections of society.
LIVING IN RELATIONSHIPS OF SAME-SEX COUPLES
The judiciaries have a progressive approach towards accepting living in relationships. In Navtej Singh Johar v. union of India [(2018) SC 4321] the Supreme Court had decriminalized same-sex relations hence approved live-in relations. Our country does not have a particular statute for live-in relationships but still, heterosexuals and homosexuals do not enjoy the same status. Honorable justice A K Ganguly had commented as the thing which is illegitimate past might be legitimate today with a change in social norms[3]. The same attitude is to be followed in the case of heterosexual couples as well. The domestic violence act had included women in heterosexual sexual live in relation. In the Malimath committee report, it was recommended to amend the word wife to any woman in a live-in relationship. There is no such progress in the case of heterosexual couples. Several LGBTQs are been exploited by people which makes their life miserable we have statutory provisions to protect women but not homosexual couples. We cannot generally assume that they are not exploited in their relationships. The judiciary had observed same-sex couples and heterosexuals as right and left hand respectively which is a different observation concerning observations In Kumar Koushal v. Naz Foundation [(2014) 1 SCC 1]were pre-constitutional law of criminalizing same-sex relation as a manifestation of interest of people. The child within a live-in relation is constructed to be a legitimate child for purpose of juvenile justice (care and protection of children) act 200 for heterosexual couples.[4]The status is not the same in the case of homosexual control their natural right to have children is being violated.
LEGAL RECOGNITION THROUGH CIVIL UNIONS
The legal recognition for the homosexual couple could be done by recognizing civil unions or partnerships which is a better alternative for legal recognition of such a relationship which will essentially solve the problem of legitimacy of the child which opens hope for same-sex couples to adopt a child or use other techniques. But such relationships are not recognized in India our society might be more reluctant towards such a measure compared to legalizing homosexual marriage. This policy had been enacted in the USA, Australia, New Zealand, and several Latin American and European countries.[5] This model will help to some extent but will not help in creating a social change. This status might not award them with all rights which they could enjoy in wedlock. Society is progressing with our constitution we are transforming from a medieval society to modern egalitarian society.[6] Civil unions do not have historical, social, and cultural significance. This will be an alternate option with a status lower than a marriage. This will not provide equal social status to same-sex couples.
CONCLUSION
The Navtej singh johan case had opened a platform for recognizing same-sex relationship in India which is a progressive approach had lead to extensive discussions all over the country this will hopefully lead to legalizing the marital relationship between homosexual couples even the war for decriminalizing homosexuality had faced a lot of challenges but it triumphed at last. Still, the movement should continue on the right path so that they could leave a normal life like any other couple in India. Legalizing same-sex marriage will help them to get recognition within the social and religious sector and will provide equal choice for both couples. Compared to any other form of relation marital relation will essentially give them legal and social recognition and advantages.
[1] Arvind Narrain, Queer – Despised Sexuality, Law and Social Change 79 (2004) [2] Siddharth Narrain & Birsha Ohdedar, A legal perspective on Same-Sex Marriage and other Queer relationships in India [3] Revanasidappa V. Mallikarjun (2011) 1 SCC 11 [4] Andrew Mendendz and Ors v. state of kerala 2008 (1) KarlJ 647 [5] Nicola Barker, Not the Marrying Kind, A Feminist Critique of Same-Sex Marriage 48 (2012). [6] State of Kerala v. N.M. Thomas (1976) 2 SCC 310
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