Marriage law in India has always been a matter of communal governance. Adopting the model of division between religion and state and yet cooperating with each other in the governance of the country, marriage, as a part of the family law, has been governed by religions and traditions of the major communities of the country. Hindus, Muslims, Christians and Parsis have their own personal law and therefore, have their own rules that govern the institution of marriage in India. However, the rules have been applicable strictly to the heterosexual couples in India.
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The Acceptance of Homosexuality in India
In 1973, the concept of homosexuality being diagnosed as a ‘sexual deviation’ was removed from the contents of the second edition of Diagnostic and Statistical Manual (DSM) by the American Psychiatry Association. Since then, there have been mass movements across the world advocating the rights of LGBTQ+ community. The first country to accept same-sex unions and provide them legal recognition in the form in registered civil partnerships in 1989 was the country of Denmark It was nothing short of a trailblazer movement and provided the impetus to other countries to follow suit. Netherlands, in the year 2000 passed a bill that legalised marriage between same-sex couples, thereby making it the first country to do so.
Consequently, several countries, some of which were extremely catholic, like the country of Spain, gave the nod of acceptance and legal recognition of same-sex couples within their society. India, however, has been far too reluctant to accept homosexuality as part of its social fabric. Several movies in the 90s and early 2000s depicted the gay characters in a supporting light, often evoking disgust of the main characters. The overall attitude towards homosexuality was dismissive and comical. The stigmatising and repetitive portrayal has contributed to the overall development of the social opinion towards the LGBTQ+ and the transgender community. Despite marches and social demonstrations held in favour of the community, the deeply-patriarchal mentality has been embedded in the legal and political decisions. The acceptance has often been perceived as half-hearted and riddled with lack of information.
In India, marriage is a secular and a religious institution. The union of two individuals is regarded as sacred. The focus is upon procreation permissible under the religious and social structure, rather than companionship. Such deep-seated hetero-normative ideals make it difficult for same-sex couples to thrive happily. Thus, in 2018, the Supreme Court reversed the decision of Delhi High Court in the case of Suresh Kumar Koushal vs. Naz Foundation and reinstated the constitutionality of section 377 of the Indian Penal Code. After what felt like an eternity, in 2018, the Supreme Court, in the case of Navtej Singh Johar vs. Union of India, the Supreme Court decriminalised section 377 of the Indian Penal Code. This opened up the floodgates. The court was applauded for its progressive attitude and for the acceptance of same-sex and non-binary relations within the Indian society. The judgement, however, was not in tandem with the mentality of a lay person.
Comparison with the International Scenario
Relatively, efforts taken by India to assimilate LGBTQ+ community and the couples therein with the rest of the population have been inadequate. In 2003, the Supreme Court of the United States of America, in the case of Lawrence vs. Texas overruled the case of Bowers vs. Hardwick stating that the state and federal laws prohibiting homosexual activity, sodomy and oral sex between two consenting adults was in violation of the Constitution of the country.
Looking at Europe, in the case of Dudgeon vs. United Kingdom, The European Court of Human Rights held that section 11 of the Criminal Law Amendment Act 1885 that expressly prohibits acts of male homosexuality in England, New South Wales and Northern Ireland violated the European Convention of Human Rights. Furthermore, in the case of Coman the European Court of Justice upheld the residency rights for the same-sex couples in countries that did not legally recognise the marriage if one of the parties involved was a citizen of the European Union and the marriage was performed legally in a member-state.
The Legal Synonym for Marriage
Marriage is a stepping-stone towards the right to have a family. However, this right has been guided by the religious convictions. As per the Indian ideals of marriage, it is a union solemnised between two individuals i.e. a man and a woman. Since the concept of marriage restricts the involvement of a certain type of couples, the right to start a family is also applicable only to the said category. Since procreation is the goal and same-sex couples cannot conceive naturally, their existence and the right to start a family consequently becomes a secondary issue. The very fact that India refuses to give any legal recognition to couples of the LGBTQ+ community automatically defeats the idea of marriage and family, thereby grossly infringing upon their basic human rights.
Recently, the Supreme Court overruled the judgement of the Delhi High Court and held that legal recognition in the form of marriage cannot be granted to same-sex couples in India as it stands against the ethos of the country. The lack of any kind of legal recognition permits the possibility of human rights violations. Companionship without any legal or social protection exposes the community and the couples to the anti-social elements of the society.
Even though it has been a landmark effort to even permit the couples to thrive, it has proven to be inadequate on the international front.
Interestingly, several countries have adopted the approach of civil partnerships or registered agreements between individuals of the same-sex so as to provide them some legal recognition and a valid position as a couple within the framework of the society. United Kingdom began with what was known as ‘civil registered partnership’ between couples of the same sex which was short of the status of marriage but accorded some legal dignity and benefits. Later, in 2013, it passed The Marriage (Same Sex Couple) Act, 2013 in England and Wales. Similarly, Denmark adopted the path of ‘civil union’ to register same-sex couples as domestic partners and Netherlands opted for ‘PACS’ or cohabitation agreements in the eyes of law.
In the United States of America, the Defence of Marriage Act, 1996 was passed so as to withdraw the legal recognition and the benefits attached to the institution of marriage to the same-sex couples. However, the situation changed radically when in 2013, the US Supreme Court, in the case of US vs. Windsor struck down Section 3 of the Defence of Marriage Act stating that the fact that it withheld legal recognition of same-sex marriage in the country was transgressing not only the Due Process clause but also the Fifth Amendment of the Constitution. Furthermore, in the Obergefell case the US Supreme Court ruled that the right to marry is protected and guaranteed to the same-sex couples under the Due Process Clause and the Equal Protection Clause stated in the Fourteenth Amendment.
Similarly, in the Fourie case, the South African Constitutional Court held that same-sex couples had the right to marry and that marriage was a secular institution. Also, it would be interesting to note that Costa Rica, in the year 2020, became the first Central American country to legalise same-sex marriage after a judgement rendered in the year 2018. Such landmark judgements paved the way for the acceptance and recognition of same-sex marriage and the rights attached therewith.
The Right to Adopt
The right to have a family is an important and a fundamental right attached to the right to marry and right to privacy. Whether it is the Universal Declaration of Human Rights, 1948, the European Convention on Human Rights, 1950, the European Union Charter on Fundamental Rights or the African Charter on human and people’s rights, the right to family has been protected across several international instruments and treaties. For instance, The Republic of South Africa is one the first countries that has included ‘sexual orientation’ as a specific prohibited ground of discrimination in its constitution. Such grounds extend towards marriage and subsequently, the right to adopt and have a child. Unfortunately, India has adopted a very restricted approach.
The idea of adoption by same-sex couples is in its nascent stage and hasn’t been incorporated into the daily functioning of the society. Despite the Supreme Court taking comprehensive efforts to decriminalise homosexuality and the passing of the Transgender Bill, the law specifically dictates only a certain category of individuals that can adopt a child. Hitherto, there have been no regulations carved out for the adoption by couples of the LGBTQ+ community. Since there is a brazen denial of conferring any kind of legal status, the rest of rights have automatically taken a back seat.
A lot of countries took time to legitimise the above adoption and also introduced the concept of assisted reproductive techniques or ART especially for the LGBTQ+ members. For example in the case of E.B. vs. France, the European Court of Human Rights held that the same-sex lesbian couple had the right to adopt a child. Similarly, in Uruguay, apart from recognising same-sex unions, conferred adoption rights unto the same-sex couples in 2009. Furthermore, in 2013, a bill was passed in Luxembourg by the Justice Commission to legalise similar adoptions scheme for same-sex couples as there was for heterosexual couples. There have been setbacks, like in the case of Mouta vs. Portugal where in 2000, the European Court of Human Rights held that the man was denied of the custodial rights of his child due to his sexuality which was found to be incompatible with the European Convention or, Gas vs. Dubois where the European Court of Human Rights held that same-sex couples would not be considered married to make them eligible for adoption. However, in 2015, Portugal passed the law extending the adoption rights to same-sex couples.
Coming back to India, there are strict rules when it comes to adoption per se. The rules constrict further when the sexual orientation comes into picture. According to the 2017 regulations of the Central Adoption Resource Authority, there have been several criteria laid down with respect to age, gender and marital relationship so as to render individuals and couples eligible for adoption. However, adoption by same-sex couples and transgender couples haven’t been expressly or implicitly recognised. Furthermore, the regulation also dictates a stable marital relationship as a category for eligibility of adoptive parents. Since there is no legal recognition, the classification of same-sex couples or transgender couples in a stable relationship becomes difficult to prove and establish as a substantive ground to adopt. To augment the issue, if one of person, from a same-sex adoptive couple decides to file for adoption as a single parent and happens to possess a non-binary gender identity, they are mandated by law to submit a recommendation letter from a family member. This may hinder the process as the family members may not be supportive of their sexuality or lifestyle.
The right to adopt is a fundamental right which not only supports the right to have a family but also provides an opportunity to the child to have a family and a better future. However, India’s approach towards the rights of same-sex- couples, let alone marital rights, have been nothing but short-sighted.
The Employment of Assisted Reproductive Techniques and Surrogacy in India
There have been intense discussions based on international trends, to form a more inclusive approach towards the concept of artificial forms of insemination. This resulted in the passing of the Assisted Reproductive Technology (Regulation) Bill in 2020 supplementary to the Surrogacy (Regulation) Bill, 2019 in the Lok Sabha.
Despite the noble intention to ease the access of artificial techniques of insemination for infertile couples and single women, it is extremely discriminatory in its application as it brazenly excludes single men, couples in live-in relationships and same-sex and LGBTQ+ couples from accessing the benefits of parenthood. Furthermore, the Surrogacy (Regulation) Bill, 2019, even though has been passed in the Lok Sabha, is yet to be implemented. It too, excludes single parents, live-in couples and couples from the LGBTQ+ community.
The bills introduced in the parliament are yet to be effectuated but it just displays the half-hearted stand of the country in support of individuals claiming a queer gender identity and reinforces the binary concept of gender and relationships so as to live peacefully in the country.
It is clear as day that India needs to introduce radical reforms in the arena of the LGBTQ+ community and their rights in the society. The government must take comprehensive steps to extend legal recognition to same-sex couples. Whether it is through registered agreements or a civil union, to marry and to have a family are fundamental human rights and should not be denied based on the grounds of sexual orientation of the individuals. The Surrogacy (Regulation) Bill, 2019 and the Assisted Reproductive Technology (Regulation) Bill, 2020 should be more inclusive and sensitive to the needs of this vulnerable section of the society. Adoption regulations should be amended to include but not limit to same-sex couples. The eligibility for being adoptive parents must be non-discriminatory against any section of the population and sexual orientation. But more than that, the government should actively support the civil rights of all the members of the society. It is true that in the Indian society, notions regarding marriage are deep-rooted and prejudices cannot be defeated in a day. But the solution to the problem is not by turning a blind eye towards the individuals or their needs. A truly democratic and secular country needs to be sensitive in its governance. However, small steps, in the form of progressive litigation along with appropriate gender and sex education among the masses will definitely bring about the change and acceptance we need.
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 Supra note 3 at 1.
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 Ministry of Women and Child Development Notification (4th January, 2017) pt.5.
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BY SHARMEEN SHAIKH |