Marriage between a man and a women who are of the same sex is known as same sex marriage. The legal and societal reactions to same-sex marriage have ranged from jubilation on the one hand to punishment on the other, despite the fact that it has been prohibited by law, religion, and custom in the majority of countries around the world.

The sexuality of humans is complex. The complexity of sexuality is confirmed by accepting the distinction between desire, behaviour, and personality. The complexity of the challenges is indicated by the possibility that these dimensions may not always be constant among persons.

Contrary to the current popular usage, which supports lesbian, gay, bisexual, and transgender (LGBT), which emphasizes on identities, terminology like homosexuality, heterosexuality, bisexuality, and trans- sexuality are used in medical science to refer to all connected issues.

It has been challenging to estimate the prevalence of homosexuality in India due to a number of factors, including the stereotype, societal stigma, and the inability to discern between desire, behaviour and identity.

I'm reminded of a tale about a washing man and donkey as we discussed legalizing same sex unions. with a bulky cargo of garments on his back and a distance between his home and the pond, the donkey bulked at moving. A carrot was attached to a stick by the washer man, and the stick was then tied in front b of the animal's mouth.

The donkey persisted in his pursuit of the expensive produce, but as he advances, the carrot remains out of reach. The demonstrates how some laws persistently seek the carrot of the moral ideal, which is relevant to the study of law. Isn't it about time we accepted the fact that gays are like you and me ?

Although there are no official statistics on the LGBT population in India, the Indian government provided data before the supreme court in 2012 that indicated there were roughly 2.5 million gay persons in the country. only those people who have self-declared to the ministry of health and family welfare are used to calculate these statistics. Given that many LGBT Indians live in the closet out of fear of prejudice, the number of people who have concealed their identity may be substantially greater.

According to some study, about at least 5-10% of population is gay. You can calculate and see what the figure is for India. Even if it is not that high a figure, we know that it is a quite common phenomenon, you can't help it. An increasing number of gay groups throughout the country and serious thinking among them is seen in India in the last few years.

The question of whether same-sex marriage should be permitted is more religious than political. Although I think that a man and a women's marriage is a sacred connection, I also think that our nation was built on the idea that everyone has the freedom to pursue their own happiness. Additionally, I believe it is acceptable if a man marries another women if it makes them happy. I don't think it has a bad impact on anyone.

History
India's history with homosexuality spans many decades. The origins of homosexuality date back to the Rig-Veda era in 1500 BC. According to the "Kama sutra," Hindu lords and Muslim Nawab's used to maintain harems (young lads ). However, these experiences became to be associated with hatred with the rise of Brahmanism and later British Colonialism. The Aryan invasion increased patriarchy's power and started to stifle homosexuality. Numerous physical and mental punishments, beatings, and forms of torture were inflicted upon homosexuals. Homophobia eventually resulted from this, and it developed through time.

From that point on, homosexuality started to decline. In India, it has long been stigmatized. Marriage is typically referred to in personal laws as a sacrament and the union of two souls between individuals of different sexes. Same-sex partnerships are seen as immoral and against religious and cultural norms. Marriage is a private subject determined by one's religious beliefs, hence gay and lesbian unions are viewed as unholy.

In India, there is a popular misconception that is a component of western culture and an intrusive foreign influence. But it can't just be seen as a western custom, as similar ideas can be found in our ancient books and scriptures. To defend the rights of gays and lesbians, numerous states all over the world have passed anti-discrimination or equal opportunity laws and regulations. the rights of lesbians and homosexual people were first protected by a constitution in South Africa in 1994.

Similar regulations exist in Canada, France, Luxembourg, Holland, Slovenia, Spain, Norway, Denmark, Sweden, and New Zealand. The US Supreme Court ruled in 1996 that no state could enact laws discriminating against gays. As of yet, there have been no such progressive developments in India, and gays continue to be subjected to various forms of violence that are encourage by the government and society.

There are three main reasons why the topic of gay behaviour has recently gained attention in legal and political debates:

1. The sexual offence acts 1967, as revised in 2000, and similar measures in various other nation have liberalized the law and changed social views, erasing the stigma associated with homosexuality to a larger extent.
2. United states, has become more radical, calling for the elimination of all types of homophobic prejudice and even the legislation of same-sex unions.
3. The development of HIV/AIDS, which has been mostly attributed to male homosexual Lesbian and gay right movements, particularly in the conduct n western nations, has sparked charges and denials, frequently of a hostile nature. In addition to Canada,Spain, Belgium, and the Netherlands also permit same-sex unions. In nine nations around the world, same-sex conduct carries the death penalty.

Arguments That Do Not Support It Being Legalised:

This is more of a religious debate then a political one. Large number of people specially in India are opposing it, as they say it is unnatural, uncouth and immoral. Those people who are against it base their arguments on their respect for natural law and religion. Because they do not produce children, some individuals do not regard them as natural. IF homosexual marriage is permitted, is it sacred?

Genesis contains no references to Adam and Steve; rather, God created Adam and Eve. Why allow gay marriage when you're breaking God's law? There would only be one sex, not two, if nature preferred that same-sex individuals coexist. Opposing sex marriage is the foundation of our culture. If homosexuals marriage is acceptable, why can't I wed my sister, my pet, or my cousin? Do I not have the same rights as gay people, or are they suddenly more important than us? Remember that the law has certain requirements for this. It was developed to preserve the social fabric. It violates the countries laws, which have been in place for many years and where constructed commandments as a guide.

How Law Deals With It In India:

Haemophilia or Homosexuality are not expressly included in any of India's statues. A person cannot be put on trial for having a Haemophilia or being homosexual. However, sodomy as a sexual act is illegal. The Indian Penal Code of 1860 has section 377, which contains the main provisions for the criminalisation of same-sex conduct.

Section 377 of the IPC constitutionally was contested before the Delhi High Court on the grounds that it infringed upon fundamental rights protected by the Indian constitution. It should be emphasized that physical force or coercion is a necessary component of nearly every offence against human body stated in the Indian Penal Code. The lone exception is in favour of section 377, which makes it illegal to engage in sexual conduct without harming anyone.

Only 30 cases were heard by the High Courts and Supreme Court during the whole history of the Act, which dates from 1860 to 1992. The minimal amount of cases brought under this section demonstrates that it is redundant and outdated and needs to be repealed. The Central Government has informed the Delhi High Court that Homosexuality cannot be legalized in India as the Indian society is intolerant to the practice of homosexuality.

Why It Should Be Legalised?

Gay and Lesbian rights activists from various parts of the countries were protesting for their rights and for decriminalising the homosexual conduct. There is a big debate in our country too:
Whether it should be legalised or not. I am giving some of the arguments in favour of decriminalizing it.

1. It violates right to liberty guaranteed under Article-21 of the Indian constitution:
   Which addresses discreet, consensual sexual interactions the state is not allowed to interfere with an individual's private, personal affairs under Article 21 of the constitution, since privacy is such a broad concept it is impossible to establish an exhaustive and all-inclusive definition of it.
   
   In the case National Coalition for Gay and Lesbian Equality v. Ministry of Justice, the South African court ruled that privacy recognises that each of us has a right to a space of intimate privacy and autonomy that enables us to form and nurture human relationships free from outside community interference. Lesbians and gay men have their right to privacy upheld even on an international scale.
    
2. Criminalisation of homosexual conduct is unreasonable and arbitrary:
   A rational and objective basis for the proposed classification must be established in order to determine if the right to equal protection before the law right to equal protection before the law has been violated. The classification and the goal that the law is trying to accomplish should have a just and reasonable connection.
   
   The legislative intent of section 377 of the IPC is to penalize unnatural sex by making all sexual behaviors that go against the natural order of things illegal. Section 377 makes the assumption that childbearing is the sole purpose of natural sexual activity. As a result, it declares all non- procreative sexual acts to be unnatural.
   
   The contrast between procreative and non-procreative sexual act is shown in a very limited way by this. As a result, there is no logical connection between the legislative goal to establish a public code of sexual morality and the new classification. Furthermore, the section's entire purpose is undefined, illogical, and predicated on the outdated idea that sex is primarily used for reproduction. What therefore supports family planning program's and the use of contraceptives if this presupposition is believed to be true?
    
3. Section-377 discriminates on the basis of sexual orientation:
   Forbidden under Article-15 of the Constitution. Article-15 prohibits discrimination on several grounds, which includes Sex. By prohibiting discrimination on the basis of sex, article-15 establishes that there is no standard behavioral pattern attached to the gender. The prohibition on non-procreative sexual acts imposed by section-377 prescribes traditional sexual relations upon men and women. In so doing the provision discriminates against the homosexuals on the basis of their sexuality and therefore constitutes discrimination on the basis of sexual orientation.
    
4. Section-377 violates the enjoyment of civil laws and gay men and lesbians and leads to other adverse effects:
   Section-292 of IPC punishes Obscenity; the current definition of obscenity can lead it to incriminate the gay and lesbian writings. As male homosexuality is a criminal offence, the presumption is that it is something depraved and can corrupt the minds and bodies of the persons. In the prevailing atmosphere any writing about the lesbians and the gay men can be criminalized, as homosexuality is treated as something immoral or depraved.
   
   The workman's Compensation Act, 1923- provides that in case of death caused by injury at the work place, the dependents of the employee are entitled to receive the compensation from the employer, the dependents will include a widow, minor legitimate son, unmarried daughter, widowed mother and an infirm son or daughter. Thus a gay or a lesbian couple cannot claim the benefits under this section.
   
   This is not an isolated example and there are other such Acts that are discriminatory towards homosexuals. The Provident Fund Scheme, 1952 and the Payment Of Gratuity Act, 1972 define family in such away that a lesbian or gay couple. I end this issue with a quote ?There are several sections in the Indian Penal Code which are anachronistic in a changed world. Section 377 is a prime example.

As a matter of fact, Section 377 as it stands, would have made what Clinton did to Monica Lewinsky or rather what Monica Lewinsky provided to Clinton, an offence. I am being discreet, because after all, some things can only be dealt with orally and cannot be put down on paper! The crucial words are "against the order of nature." The possibilities are immense and the imagination can well run riot. Perhaps the way out is now to argue that nature and its various orders have themselves changed.

Why There Is Need For Legal Recognition

Male-to-male intercourse is frequent, according to a recent United Nations Population Fund (UNFPA) survey of sexual practices in rural India. In fact, more guys in the research admitted to having sex with other men than with sex workers. Both married and single men could agree on this. A little over 10% of single males and 3% of married men reported having sex with another man in the previous year. The survey covered 50 villages in five districts of five states with feedback on sexual practices from close to 3,000 respondents and in- depth interviews on intimate habits from 250 people.

The data is indicative of a reality the government is either unable or unwilling to see. Love is love. The real threat to marriage is the alarmingly high divorce rate. Marriage is also a legal joining of two individuals. People who are not religious choose to get married in a registry office and not in church. Marriage shows the strongest commitment you can make to one another.

Gay men and lesbians are just as human and have the same needs and desires as heterosexual human beings. I fail to see what God has to do with this Marriage in this instance is not religious, but a legal joining. Getting married is the ultimate way of showing your love and commitment to your partner, so why should gay people be deprived of this right. Who are we to sit and judge anyway. Same sex marriages should be legalized. If people find gay relationships contrary to their religion, it is up to them to refrain.

Those who do not share their religious opinions should be free to make their own choice on this as on other issues. Gay men and lesbians are just as human and have the same needs and desires as heterosexual human beings. The claim that same-sex unions shouldn't be permitted "because they do not produce kids" is absurd. Should older heterosexual couples who are unable to have children be prohibited from getting married? It is a wonderful thing to celebrate when two people share a deep love for one another and desire to bring their fates together.

Whether it is referred to as a "marriage" or "life pact" is irrelevant. A person's support or opposition to same-sex unions is a question of personal belief and morality; the government has no business interfering in such matters. Same-sex unions do no harm to anyone.

The universality of Human rights demands that prevailing and dominant cultural and social norms cannot be invoked in a manner as to circumvent or restrain fundamental and constitutional rights. If we were to accept the government's arguments in the Delhi high court case, then many of the progressive legislations in my country would never have been enacted.

For example, even today there are many men who think that tradition gives them a right to beat up their wives, or that they deserve to get a very fat dowry just because they were born with a penis. If we give in to these cultural beliefs, then there is nothing to turn round the legislation that we have made to stop violence against women or dowry and dowry related deaths.

Conclusion
On the basis of the overall debate over whether same-sex marriage should be legalized. This discussion is more religious than political. After presenting my reasons in favour of decriminalizing it, I come to the conclusion that homosexuality is not a crime; rather, it is merely a means of achieving sexual fulfillment of one's desires.

I see no other excuse than blind prejudice that would prevent two gay individuals from being married in a civil ceremony that would grant them the same protections and entitlements as heterosexual couples. Marriage is a sign of commitment and love. If two men or two women want to show that commitment, how does that destroy or damage the ideals of marriage. In my view, it clearly demonstrates it.

Aren't we living in an age which respects the individual's right to choose Isn't India supposed to be the land of the free In our society people have branded homosexuals as queer. Yet homosexuality is not new nor is it against the Indian culture, it has always existed and with much lesser prosecution, that under Section-377 of the IPC, which is based on British Offenses against the Persons Act.

The challenges surrounding same-sex marriages are extremely diverse and complicated, so what should be the best course of action? However, it is still unknown whether or not such a strategy is desirable or even feasible. In any case, there is a growing belief that the way we currently punish same-sex sexual activity neither helps homosexuals nor safeguards society as a whole. Thus, in order to advance in the area of human rights, same sex weddings must be made legal.

References

• https://shodhganga.inflibnet.ac.in/bitstream/10603/191572/18/18_chapter 6.pdf
• http://docs.manupatra.in/newsline/articles/Upload/B07BDF52-0AA4-4881-96AC-C742B9DB217D.pdf
• http://www.delhihighcourt.nic.in/library/articles/legal%20education/Homosexuality%20in%20India%20-%20The%20invisible%20conflict.pdf
• http://www.legalserviceindia.com/articles/semar.htm

Books Referred:

1. Dr. Durga Das Basu, Introduction To The Constitution Of India, Wdhwa Nagpur, 19th Edition, 2002.
2. V.N. Shukla, Constitution Of India, Eastern Book Company, 10th Edition, 2004.
3. S. Kumar, All India Criminal Major Acts, National Law Agency, Allahabad, 1st Edition, 1989.
4. Encyclopedia Of Criminology, Volume 2, 2003.

Written By:

1. Shivani Singh, Second - Year (B.A L.L.B) Student of Bharati Vidyapeeth New Law College Pune
2. Ayuj Agrawal, fourth -Year (B.B.A L.L.B) Student of Bharati Vidyapeeth New Law College Pune.