INSUBCONTINENT EXCLUSIVE:
The law of India does recognise same-sex relationships and it is time for courts in this country to declare the law and
bring relief to millions of LGBTQ individuals who live in India.
The law of this country works on a general principle that
unless prohibited, it is permitted
For example, you do not need explicit permission to comb your hair
There is no law that prevents you from doing so, so you may
The law that enables this is what we call freedoms
Most of our freedoms are codified under the constitution, some other freedoms exist merely because the legislature is yet to infringe on
those freedoms.Which brings me to the point on same-sex marriage and relationships in India
On Monday, while the Delhi High Court was hearing an application concerning LGBTQ persons being unable to register their marriages, the
Solicitor General of India made the following statement before the court: "Our laws, our legal system, our society and our values do not
recognise marriage, which is a sacrament, between same-sex couples".He is, to put it bluntly, wrong
The law of India does recognise same-sex relationships and it is time for courts in this country to declare the law and bring relief to
why I think the Solicitor General was incorrect in the statement he made to the Court
One was wherein he mentioned that marriage is a sacrament
This is not universally true
It is only true for the Hindu and Christian community
Islam has and always will recognise marriage as a contract between two persons
This is why Muslim law in India has always provided for there to be divorce while this had to be legislated in the cases of Hindu Law and
Christian Law.That being said, the idea that marriage is a sacrament therefore is not a universally true proposition and the Solicitor
General ought not to advance it as such
Marriage in India means many different things to different people.In India we have the secular personal law (Special Marriage Act) and the
Consequently, more than one type of marriage is recognised under the law of India
It would also be interesting to note that the conditions under Section 5 are gender neutral in their application
post Navtej Singh Johar - Ors
v Union of India (2017) 10 SCC 1 is evident
The only legal prohibition to a marriage between two persons of the same sex would have been the offence under Section 377 while they
engaged in marital relations
Therefore, there is no longer a legal impediment to prohibit same sex relationships.There can be an argument advanced, that the scheme of
persons of opposite sexes only
But that argument does not make sense considering Article 14, which provides for the equal protection of the laws, and Article 15(1) which
explicitly prohibits discrimination on the grounds of sex
The law must be read considering these two articles, in particular Article 15(1)
The previous idea that marriage was limited to opposite parties, occurred where there could have been a rational basis to limit the law to
rights.The law already allows for people to adopt irrespective of their sex or marital status
Further, non-commercial surrogacy is already is a part of the law of India
LGBTQ people today can cohabit and raise families together
The only issue is to ensure that the family is a creature of law, so that both parties in the relationship have rights concerning the child
Neither the Hindu Marriage Act, 1955 nor the Special Marriage Act, 1954 provide for the marital estate to be looked at purely on the grounds
In fact, men who were in marriage maintained by their wives, can and do seek maintenance from their wives at the time of divorce
Therefore, it would be untrue to say that same sex marriage continues to remain something against the fundamental policy of the law of
India.Lastly, on the argument of culture
Culture can never override constitutional rights
focus, guaranteeing civil and political rights in Part III and embodying an aspiration for achieving socio-economic rights in Part IV."It is
settled law that in India, the individual is the centre of the Constitution and not the society
By not permitting LGBTQ marriages, we deny marital equality to LGBTQ persons who are entitled to have their relationships recognised on the
same terms as heterosexual persons
Government of India trying to make a political case before the Court in order to prevent it from upholding a politically inconvenient
However, the rights of individuals cannot be subject to the convenience or dikats of the political executive
The whole meaning of Part III would be lost if it were such a case.To sum up, same sex-marriage is presently not prohibited, it is just not
recognised and the non-recognition is an issue that one hopes the Court will intervene and resolve in accordance with the Constitution
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