This article has been written by Roshani Chaudhary from University of Rajasthan, Jaipur

INTRODUCTION:

In order to under understand whether the same sex marriage should be legalized or not, it is important to know the background of the issue.

Same-sex marriage is a union of two people of the same sex like marriage of a woman with a woman and a man with a man. The consensual relationship of same-sex people was considered illegal till the judgment of the Navtej Singh Johar case.

The judgment of NALSA v. Union of India explored the presence of transgender identity and other forms of queerness. Both cases concluded that the queer community is not second-class citizens.

In 2018, the court allowed same-sex relationships but on 18^th October 2023, the honorable Supreme Court disallowed same-sex marriage and said that the Court is not the right authority to make laws on marriage institutions but the Parliament is.

In the case of Supriyo Chakraborty v. Union of India, the Supreme Court held that the right to marry is not a fundamental right. Supreme Court decriminalizes section 377 of the Indian Penal Code, 1860 and it was the most progressive step for the queer community but now the same authority denies to give the right to marry to the queer community.

WHY LEGALISATION?

Many scholars argue that same-sex marriages should be legalized and there are many reasons for support. Many Indians still think this is a mental disorder and can’t accept the reality even after the allowance of “same-sex relationships”. It is necessary to throw light on the societal violence against the LGBTQIA+ community which can make the readers understand why we need to protect their rights.

When a person comes out as a part of this community then it becomes very difficult to accept yourself and then make your loved ones understand your situation. Many people hide their gender identity just to not get isolated from their own family.

Many researchers have recorded incidents of how the public reacted to the disclosure of someone’s gender identity or relationship. There was a woman who eloped with another woman to start their new life together but their family members not only separated them but beat them, stripped and paraded around the village with blackened faces and garland of shoes around the neck.

The condition of rural areas is so much at risk that they don’t have the courage to fight back for their own rights.

The people of the LGBTQIA+ community face discrimination in various forms like in public spaces. All the public services like toilets, security checkpoints, ticket counters, railway stations, and bus stands are segregated into male and female, there is no recognition for transgenders.

Many transwomen have shared their experiences that they were forced to stand in male que even as they identify themselves as female. People don’t get how uncomfortable a situation it becomes when transgenders are treated this way.

The members of this community are even discriminated when it comes to education and employment. Many schools treat them as lower class and this results in quitting. They face denial of many job opportunities just because of their gender identity.

A survey of human rights organizations shows that many transgender got rejected in interviews and even if they get a job the salary they get is way too low. It is the most heartbreaking fact that people of the queer community face the most discrimination from their own family.

They were suppressed and forced to keep quiet about their gender identity. Most of the time, they were forced to quit their education or be monitored all the time. In many cases, parents abandon their own kids when they get to know about their kid’s gender identity.

This is the societal violence they face even after the removal of Section 377 of the Indian Penal Code. According to a report, there are 3% homosexual,9% bisexual, 1% pansexual, and 2% asexual and still they don’t have the right to marry their partner.

A trans-man can marry a trans-woman and can enjoy all marital benefits, although this was a progressive step, irony does exist. In NALSA, a leap was taken from biological sex to sexual orientation but why a leap can’t be taken for the purpose of marriage?

Not giving the right to marry to the queer community is discriminatory as it shows that the judiciary thinks that they are “not fit for marriage.” Many arguments are given like same-sex marriage can destroy the “concept of family”.

However, they should understand that when people of the queer community come into a relationship, they are aware that they can’t procreate and there is nothing like any misconception.

ARGUMENTS AGAINST THE HOMOSEXUAL MARRIAGES:

1). Homosexuality is unnatural-

It was said that homosexuality is unnatural but after research, it was clear that the facts are just the opposite.

It was seen that many animals show homosexuality like lions, sheep, giraffes, and many other birds. Getting attracted to the same sex is like getting attracted to the opposite sex.

2). Homosexuality is against the Indian culture-

In Hindu mythology, there are many examples that support the existence of homosexuality in our Indian culture like Lord Shiva portrayed as “ Ardhnarishvara”, a half-male and half-female.

Even Krishna has also been shown roaming in the forest in female attire and Lord Ayyappa was worshipped in south India, he was the son of Lord Shiva and Lord Vishnu.

Not deities but temples have the same history, the temple of Khajuraho has statues and cravings on the wall that depict homosexuals clearly.

3). Legal complexities in recognition-

It has been argued that marriages are recognized only between “man” and “woman”. It is said that it will be difficult to interpret different laws in India as everything revolves around these two terms ( male and female).

This argument shows that we need to de-gender our laws. Why can’t we use gender-neutral terms like “party” or any other term that is not stereotyping?

Conclusion:

In conclusion, the question of legalizing same-sex marriage in India involves a complex intersection of cultural, social, and legal considerations. Advocates emphasize the principles of equality and individual rights, while opponents often cite traditional values.

Ultimately, the decision rests on societal attitudes and the evolving understanding of human rights, urging careful reflection and dialogue to navigate this sensitive issue.

“Queer community deserve to experience love fully, equally, without shame and without compromise”.

References

1. Supriyo Chakraborty v. Union of India,

2. NALSA v. Union of India