2021-08-12 13:42:46

SAME-SEX MARRIAGE IN INDIA

INTRODUCTION

Every time we talk about the protection of human rights, as well as the rights of the citizens, a lot of developed countries enter into same-sex marriages. For a long time, it is the third-generation charge of discrimination on grounds of sex. They fought hard for the legal recognition of their rights. The protection of gay relationships is legally equivalent to that of straight people, has now become acceptable. The right to marry is a basic human right. There exists no laws nor any legislation which legally enforces such rights of transgender. They got a lot of that is, when the Supreme Court ruled in the NALSA case. This is the first attempt to legally define gender, and the fundamental rights and freedoms that are the result of all persons, regardless of the gender of the person.

Marriage is considered to be one of the most important elements of a person's personality and the political, legal, and socioeconomic terms. It is an institution, which, by law, is subject to personal rights, and to identify the relationship between the two parties. It has a great social significance, for it is of the greatest importance in relation to their rights and obligations, such as property, inheritance rights, and other related rights. These rights are derived from their marriage. In today's world, the institution of marriage is not only a civil right, but has received international recognition as a result. The right to marry shall be binding on the State. In India, you have the right to marry is now recognized as a constitutional right, and that gives a person the freedom to choose a spouse on their own.

In Olga Tellis and Ors. Vs. The Bombay Municipal Corporation and Ors, held, that Article 21 of the Constitution confers the freedom of life and liberty that amounts to more than just having physical existence, but it is of a quality and fulfilling life, with dignity. Human dignity is a necessary condition for ensuring the exercise of the rights referred to in article 21 of the Constitution. The right to marry is of fundamental importance for the preservation of the dignity of persons, as well as the preservation of human life, and that is the reason for the courts to consider marriage as an important right under article 21 of the Constitution.

HOMOSEXUALITY AND THE INDIAN PERSPECTIVE

Homosexuality can be defined as any form of sexual or romantic or sexual, between two people who are in the same class, and gender. This is nothing more than stubborn, tends to be the experience of a sexual attachment to people of the opposite sex. In order to answer the question of why homosexuality occurs in humans, scientists have a lot of studies have been conducted. Some of the biological theories suggest that the cause of a person's sexual orientation is genetic factors, or that the early environment of the womb (uterus), or both. It is a normal and natural variation that is not controlled by a human being. However, even in the 21st century, it is a part of society considers that it is dysfunctional.

In India, it was considered taboo for a long time. Most of the personal laws as describing marriage as a sacrament, and as the union of two souls, between people of different generations. Same-sex relationships are considered to be, immoral and a violation of customs, and religious beliefs. Because marriage is a personal area and it is regulated by a person's religious beliefs, gay and lesbian marriages are to be regarded as a non-believer. People in India are often believed to be a part of the Western culture and have been heavily influenced by foreign countries. However, this is not a foreign practice, because of our ancient scriptures and literature and reflects a somewhat similar concept. In the Rig Veda, the sacred scriptures of the World, speaking of a 'Vikriti Evam Prakriti', which means that what seems unnatural, is also natural.

SAME-SEX MARRIAGES UNDER THE HINDU MARRIAGE ACT

In this religion, marriage, the law is very specific saying that, at the time of the marriage, the groom must be twenty-one years of age, the bride-to-be eighteen years old. A similar provision was included in the Law of Christian Marriage, in which the term "man and woman". Almost every Indian personal law treats marriage as a Union of heterosexuals. However, same-sex marriage is not prohibited by the Hindu Marriage Act. In order to recognize them in accordance with their own laws, you can make several of these approaches:

• The existing laws should be interpreted in such a way that allows same-sex marriage.

• The LGBT (lesbian, gay, bisexual, and transgender), can be regarded as different communities, and to the customs for the granting of same-sex marriage.

• The interpretation of this Law in such a way as to allow the same sex as a marriage, if it doesn't, it would be unconstitutional.

• Make relevant amendments to the act.

In addition, the use of the term "groom" and "bride," by the act is neutral. Same-sex marriages may also be allowed, on the condition that one of them (a homosexual couple) is defined as the "groom" and the other as a bride. In one case, the same approach has been followed up by a lesbian couple, one has been introduced as the bridegroom, and the second was identified as the bride-to-be.

UNDER SPECIAL MARRIAGE ACT

The Special Marriage Act, 1954 is allowed in a special form of marriage between the parties, regardless of their faith or religion, who does not want to be bound by their own rules. In the alternative, that it is not allowed to incite religious hatred, and it is a modification of the Special Marriage Act, making same-sex marriage is made easier. Marriages, under this act, is not necessary, in religious rites, and practices of a valid marriage, in opposition to marriages under the Hindu Marriage Act.
However, in its current form, the Law only applies to heterosexual couples, but it sets the age of the criteria and with the use of words such as" male "and “female".

The same-sex marriage in the Law, it will require an amendment to article 4 (c), or the addition of any special provisions, and expressly giving to the same thing. In the meantime, patching, and it is the best option, but it can be quite difficult as a result of the existing BJP government. While at the Convention, and the Consumer Price Index (CPI) (M) both included decriminalization in their manifestos for the Lok Sabha elections, the BJP has clearly supported the decision – a party leader commenting that homosexuality is an unnatural act that cannot be supported.

The decision of Naz Foundation is referred in article 15 of the Constitution, which prohibits discrimination on the basis of caste, race, sex, gender, religion, and place of birth. The Court noted that the term "sex" in article 15 to includes sexual orientation. The various foreign courts, which are described in the support of these claims. It would be discrimination, and a violation of article 15, and against same-sex couples as for the provisions, and the rights of the ban on the basis of their sexual orientation.

It is, therefore, clear that if the Special Marriage act allowed same-sex marriage, an argument can be made. However, in the Suresh Kumar Koushal vs. Naz Foundation’s decision could be used to argue the Special Marriage Act, it is in line with the Constitution, as it was enacted after the constitution came into force. After the Supreme court decriminalized section 377 of the Indian Penal Code, there were some significant cases, as people, from the homosexual committee, are coming out to stand and demand their status and rights. In fact, Shakti Vahini V. Union of India has ruled that the right to choose a partner is a fundamental right.

CONCLUSION

The interpretation of marriage varies from culture to culture. In short, it is an institution that is trying to find out personal information, such as the family, and sexual relationships of one person. It is clear that homosexuals face discrimination and bigotry and to the exclusion of the normal life of society. The reason for this may be private or public. Currently, 29 of 195 countries are legalizing same-sex marriage.

However, it is still perceived as a taboo subject in India, as they are referred to as unholy, and it is unnatural. The anti-discrimination judgment of Naz Foundation needs to be built, and even more in the direction for overruling Koushal and to achieve the recognition of same-sex marriage is legal and social. The best way would be to have gay marriages in their own rights. However, the changes in the personal and property rights and to recognize the legitimacy of same-sex relationships are difficult because the interference with individual rights can be seen as an attack on the freedom of religion. Another alternative is to make the changes you want to the Special Marriage Act, to the fact that it is discriminatory to homosexuals, by legally not the "right to marriage" of the community, and, hence constitutionally is invalid.