Monday, 24 January 2022

Same-Sex Marriage And Homosexuality In India: An Insight

 Same-Sex Marriage And Homosexuality In India: An Insight

By Nemi Bhavsar

Human sexuality is complicated. Accepting the distinction between desire, behaviour, and individuality affirms the complex nature of sexuality. The fact that these dimensions may not always be consistent in individuals suggests that the issues are complicated. In medical science, terms like homosexuality, heterosexuality, bisexuality, and trans-sexuality are used to refer to all related issues, whereas current social usage advocates for lesbian, gay, bisexual, and transgender (LGBT), which focuses on identities.

Homosexuality in India:

In India, homosexuality has a long history. Homosexuality can be traced back to the Rig-Veda period 1500 BC. The harems (young boys) used to be kept by Hindu nobles and Muslim Nawabs as described in the 'Kamasutra.' However, with the advent of Brahmanism and, later, British Colonialism, these experiences became correlated with hatred. It has long been considered a taboo in India. Most personal laws define marriage as a sacrament and the union of two souls between people of different sexes. Same-sex relationships are viewed as morally wrong and in violation of tradition and religious beliefs. Gay and lesbian marriages are considered unholy because marriage is a personal matter governed by one's religious faith. People in India commonly assume that it is a part of Western culture and that it is a negative influence from other countries. However, it cannot be only considered as a Western practice, because our ancient scriptures and literature reflect a similar concept.

Legal Provision in India:

So far, no such progressive changes have occurred in India, and homosexuals continue to be victims of various forms of violence supported by the state and society. There is no explicit reference to homosexuality or haemophilia in any of India's statute books. It is not possible to prosecute someone for being homosexual or homophilic.

Same-sex marriage in Indian perspective:

When it comes to human and civil rights, many developed countries have embraced same-sex marriage. For a long time, third genders have faced gender discrimination. They have fought tirelessly for legal recognition of their rights. The legal protection of homosexual relationships on an equal footing with heterosexual relationships has now become a necessity. The right to marry is regarded as a human right. However, there is no law or legislation that legally enforces transgender people's rights. But the verdict by the Hon'ble Supreme Court in the National Legal Services Authority v. Union of India & Others made the first attempt to legally recognise their gender and the fundamental rights that all people have regardless of their gender. Moreover, in the case of Navtej Singh Johar v. Union of India 3, the Hon'ble Supreme Court of India decriminalised homosexuality in the country about two years ago. Nonetheless, amidst this progressive decision, the Apex Court and the Government failed to address certain issues related to homosexual relationships. One such question deals with 'same-sex marriages.'The verdict is a relief for India's LGBTQ community, which has long faced social and state oppression as a result of the antiquated colonial section 377 of the Indian Penal Code, which has forced them to live in shame. Many appreciable things were said in this verdict, but to truly secure the rights of the LGBTQ community, legal recognition of same-sex marriages should be one of the nexus. Denying a person the freedom and choice to marry the person of their choice is a strict violation of fundamental rights and has serious constitutional implications. The Supreme Court has held in the case of Shakti Vahini vs Union of India that if the right to.Express one's own choice is obstructed, it would be extremely difficult to think of dignity in its sanctified completeness. When two adults marry out of volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so, and it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation.Though this judgment was delivered in the context of Khap panchayats and honour killing, it highlights the constitutional right to free choice and the right to marry as fundamental rights protected by Articles 19 and 21. In International Convention, even Article 16 of Human Rights Charter6 also recognizes, 'right to marry' as a universal right.

Opposing same-sex marriage: A Legal Discrimination

Section-377 discriminates against people gender and sexuality, which is prohibited by Article-15 of the Constitution. Article 15 forbids discrimination based on a variety of grounds, including gender. Article 15 establishes that there is no standard behavioural pattern associated with gender by prohibiting sex discrimination. Section-377's prohibition on non-procreative sexual acts prescribes traditional sexual relations for men and women. The legal principle of establishing a public code of sexual morality has no reasonable relationship to the classification established. Furthermore, the section's very purpose is ambiguous, unreasonable, discriminatory, arbitrary, and based on the stereotyped concept that sex is only for sexual reproduction.Section-377 violates the personal guarantee of civil laws for gay men and lesbians, as well as having other negative impacts: Section-292 of the IPC punishes obscenity; the current definition of obscenity may incriminate gay and lesbian texts. Because male homosexuality is a criminal penal offence, the assumption is that it is something depraved that can corrupt people's minds and bodies.


Marriage is interpreted differently in different cultures. It is primarily an institution that seeks to recognise an individual's personal connections, such as family and sexual relationships. It is clear that homosexuals face discrimination and hatred, as well as isolation from social structure. Homosexuality is not a crime; it is simply a way of worldly desires, a way to achieve sexual happiness or desire. Apart from narrow mindedness, there is no reason why two gay people should not be married in a wedding ceremony that grants them the same rights and security as heterosexual couples.

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