Marriage:

It seems to be now well established that the institution of marriage did not exist among the primitive men. At that time man lived like any other animal. He was so engaged in the satisfaction of his primary needs, hunger, and shelter, that there was no time or occasion to think of refinement. Sex life was free. Sex promiscuity was the rule. 1 Marriage is defined differently and by different entities, based on cultural, religious, and personal factors.

According to Hindu Law:

Marriage, a legally and socially sanctioned union, usually between a man and a woman, that is regulated by laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners and accords status to their offspring. The universality of marriage within different societies and cultures is attributed to the many basic social and personal functions for which it provides structure, such as sexual gratification and regulation, division of labor between the sexes, economic production and consumption, and satisfaction of personal needs for affection, status, and companionship.

Marriage as a sacramental union implies that it is sacrosanct. Hindus conceived of their marriage as a union primarily meant for the performance of religious and spiritual duties. Such a marriage cannot take place without the performance of sacred rites and ceremonies, secondly, a sacramental union implies that it is a permanent union. Marriage is a tie which once tied cannot be untied. This implies that marriage cannot be dissolved. Thirdly, the sacramental union means that it is an eternal union; it is valid not merely in this life but in lives to come.

According to Manu, husband and wife are united to each other not merely in this life but even after death, in the other world. Its implication has been that widow remarriage as a rule was not recognized in Hindu law.

Marriage, whether considered as a sacrament or a contract, gives rise to a status. It confers a status of husband and wife on parties to the marriage, and a status of legitimacy on the children of the marriage.

Hindus redefined the institution of marriage and idealized it. In this process they have laid down detailed rules covering practically all aspects of marriage. While maintain some continuity with the past, the Hindu Marriage Act has simplified the law of marriages. The Act has also added a chapter on matrimonial causes.

Hindu Law

Paras Diwan

According to Muslim Law:

• Under Mahomedan law, marriage is purely a civil contract. It is essentially an agreement between the parties, the terms whereof depend on the will of the consenting parties. Like other contracts, it is constituted by:
  • A proposal made by or on behalf of one of the parties to the marriage
  • An acceptance of the proposal by or on behalf of the other
  Such a contract must be accompanied by dower, which is a price paid to the wife for the connubial rights of the husband.
   
• The marriage under Muslim law is a civil contract and is comparable to a contract of sale:
  • Sale is a transfer of property for a price
  • In the contract of marriage, the wife is the property, and dower is the price.
     
• The Arabic word "nikah" (marriage) literally means the union of sexes, and in law, it means marriage. In Muslim law, marriage is the legal process by which:
  • Sexual intercourse and procreation
  • Legitimation of children between a man and a woman is perfectly lawful and valid

Other Types of Marriage:

Nowadays, as generations change and the world evolves, people are becoming more aware of various aspects of their lives, including their sexuality. It is not just about heterosexual relationships anymore.

• Homosexuality refers to the exclusive or almost exclusive erotic preference for others of the same sex in fantasy and through sexual intimacy.
• Gay desire is the affective experience of same-sex attraction.
• Homosexual behavior occurs when members of the same sex engage in sexual activities.
• Homosexual identity represents the self-designation where one recognizes the primacy of homosexual desire and behavior in their makeup.
• Same-sex marriage refers to the practice of marriage between two men or two women. Legal and social responses vary globally:
  • Some celebrate it
  • Others criminalize it

The term "homosexuality" refers to the experience of exclusive or almost exclusive erotic preference for others of the same sex in fantasy and characteristically through the realization of sexual intimacy with others of the same sex. It can be conceptualized as desire, behavior, and identity (although it is not always congruent within one person at the same time, and therefore can be a source of personal conflict). Gay desire is the affective experience of same-sex attraction. Homosexual behavior occurs when members of the same sex engage in sexual activities.

Homosexual identity represents the acceptance of a self-designation in which one recognizes the primacy of homosexual desire and behavior in the makeup of oneself. In contrast to homosexual identity, homosexual orientation reflects the affective experience of an erotic desire mainly for the same sex that escapes the conscious control and scope of historical and social construction.

Same-sex marriage, the practice of marriage between two men or between two women. Although same-sex marriage is governed by law, religion, and custom in most countries in the world, legal and social responses range from celebration, on the one hand, to criminalization, on the other.

The word homosexual was considered taboo in Indian society prior to the landmark judgment passed on 6 September 2018 by the Supreme Court of India. Deciding the case of NavtejJohar v Union of India3, the Honorable Supreme Court has put an end to the criminalization of same-sex acts between consenting adults, allowing the country's LGBT+ community to celebrate a long overdue win after a nearly two decades lasting fight for recognition legal. After the judgment, the LGBT community across the country erupted in the jubilant celebration enjoying their victory against the 200-year-old British-era law that criminalized same-sex relationship. The significance of this whole judgment can be surmised in the light of the statement made by Justice Indu Malhotra while reading her 50-page verdict that "History owes an apology to the members of this community and their families, for the delay inprovidingredressal for the ignominy and ostracism that they have suffered through the centuries"

However, this landmark event should not be construed as the culmination of more than two decades of a legal fight against the draconian law but rather should be Understood as a beginning of a new era in the fight for LGBT Rights. It would not be wrong to say that the repealing of the colonial law was merely a tip of the iceberg and the LGBT community in India has a much larger and bigger struggle ahead of them. Despite homosexuality been decriminalized, the laws in India remain hostile and prejudicial towards the LGBT community in several ways. The reason behind this is that there exists an enormous gap between the legislative and the judicial development of LGBT laws in India. So essentially speaking, the same-sex couples now have the legal right to cohabit and conduct their personal affairs without any fear of persecution but are still denied equality of treatment in various aspects. Like marriage, India does not allow same sex marriages; in fact, it does not possess a unified marriage law. None of the codified marriage law explicitly defines marriage between man and woman; neither do they prohibit same sex marriage. Still our legal system does not allow homosexual union and not ready to give them their fundamental right.

Thus, it is imperative to take the conversation forward and talk about the various laws that continue to discriminate against the LGBT+ persons.

Same Sex Marriages
The project title is "Same Sex Marriage"
Same-sex marriage, also known as gay marriage, is the marriage of two people of the same sex. There are records of marriage between people of the same sex dating back to the first century. In the modern era, marriage equality for same-sex couples was first legally acknowledged in the Netherlands on 1 April 2001, after royal assent was given by Queen Beatrix 4.

As of 2023, marriage between same-sex couples is legally performed and recognized in 30 countries (nationwide or in some jurisdictions) . In contrast, 34 countries (as of 2021) have definitions of marriage in their constitutions that prevent marriage between couples of the same sex, most enacted in recent decades as a preventative measure. Some other countries have constitutionally mandated Islamic law, which is generally interpreted as prohibiting marriage between same-sex couples. In six of the former and most of the latter, homosexuality itself is criminalized.5

The application of marriage law equally to same-sex and opposite-sex couples (called marriage equality) has varied by jurisdiction, and has come about through legislative change to marriage law, court rulings based on constitutional guarantees of equality, recognition that marriage of same-sex couples is allowed by existing marriage law, and by direct popular vote.

The recognition of same-sex marriage is considered to be a human right and a civil right as well as a legal, social, and religious issue. The most prominent supporters of same-sex marriage are human rights and civil rights organizations as well as the medical and scientific communities, while the most prominent opponents are religious fundamentalist groups. Polls consistently show continually rising support for the recognition of same-sex marriage in all developed democracies and in some developing democracies.6

1. Existence of Homosexuals Relationships in Ancient India
   In the temples of Khajuraho there are photographs of women hugging other women and men erotically showing their genitals to each other. Scholars have generally explained this as an admission that the people were involved in homosexual acts.7
   
   Elsewhere, the Ramayana tells the story of a king named Dilip who had two wives. He died without leaving an heir. The story goes that Lord Shiva appeared in the dreams of the widowed queens and told them that if they made love, they would have a child. The queens did as Lord Shiva ordered and one of them became pregnant. They gave birth to a boy who later became the famous King Bhagirath, best known for "bringing the river Ganges from heaven to earth".
   
   The Mahabharata has an interesting story about Shikhandini, the transgender warrior of the time and responsible for the defeat and death of Bhishma. Shikhandini was the daughter of King Drupada, who raised her as a prince to take revenge on the Kurus, rulers of Hastinapur. Drupada even married Shikhandini to a woman. After his wife found out, he rebelled. The day he was saved by divine intervention that gave Shikhandini masculinity overnight. Since then, Shikhandini has lived as a hermaphrodite.
   
   During the great turbulence of the milky ocean, according to Mastya Purana, Lord Vishnu took the form of a beautiful woman, Mohini, to deceive the demons so that the gods could drink all the amrut (the immortal sap obtained from the turbulence of the ocean). Meanwhile, Lord Shiva saw Vishnu as Mohini and immediately fell in love with him. Their union resulted in the birth of a child, Lord Ayyappa.
   
   In Valmiki Ramayana, it is said that Hanuman, Lord Rama's follower and companion, saw Rakshasa women kiss and embrace other women
   
   Another scripture, the Narada Purana, contains references to what can be classified in section 377 as "unnatural offenses." At one point, the Narada Purana affirms that anyone who releases semen in non-vaginas, in beings without vulva and uterus ofanimals, is a great sinner and will fall to hell. The Purana does not condone "unnatural offenses", but the references prove that they were in practice.
   
   The famous Manusmriti code of laws provides for the punishment of homosexual men and
   
   women. Manusmriti says that if a girl has sex with another girl, she should be fined two hundred coins and ten whiplash injuries. But if a mature woman does lesbian sex on a girl, she should shave her head or cut off two fingers as punishment. The woman must also be forced to ride a donkey.
   
   In the case of homosexual men, Manusmriti says that the sexual union between two men leads to the loss of caste. If a man has sex with non-human women or another man or indulges in anal or oral sex with women, he is punished under the "Painful Warming Vow".
   
   Ancient Indian texts, inscriptions, and paintings on temple walls, clearly, don't approve of homosexuality, but the repeated references do acknowledge its existence in those days.
    

2. Current State of Homosexual Relationships

   There are currently 30 countries across the world where same-sex marriage is legal:
   • Argentina
   • Australia
   • Austria
   • Belgium
   • Brazil
   • Canada
   • Colombia
   • Costa Rica
   • Denmark
   • Ecuador
   • Finland
   • France
   • Germany
   • Iceland
   • Ireland
   • Luxembourg
   • Malta
   • Mexico
   • The Netherlands
   • New Zealand
   • Norway
   • Portugal
   • South Africa
   • Spain
   • Sweden
   • Switzerland
   • Taiwan
   • The United Kingdom
   • The United States of America
   • Uruguay
      

   Countries that Legalized Marriage Equality in 2019

   • Austria: The Constitutional Court of Austria ruled on December 4, 2017, that denial of marriage equality was discriminatory, legalizing same-sex marriage. Marriage equality took effect January 1, 2019.
      
   • Taiwan: The Taiwan Constitutional Court ruled in 2017 that marriage could not be restricted to opposite-sex couples and gave parliament two years to enact legislation legalizing same-sex marriage. Parliament passed legislation to legalize same-sex marriage, which went into effect May 24, 2019, making Taiwan the first country to enact marriage equality in Asia.
      
   • Ecuador: Legalized after Ecuador's Constitutional Court found on June 12, 2019, that its ban was unconstitutional, marriage equality took effect in Ecuador on July 8, 2019.
      

   Countries that Legalized Marriage Equality in 2020

   • Costa Rica: The Supreme Court of Costa Rica ruled in November 2018 in support of the historic January 2018 advisory opinion of the Inter-American Court of Human Rights that marriage equality was consistent with Costa Rica's obligations under the American Convention on Human Rights. The Supreme Court set May 26, 2020, as the deadline for the National Assembly to enact legislation, but it did not meet that deadline, and marriage equality came into effect on that date.
      
   • Switzerland: On December 16, 2020, the Swiss Parliament overwhelmingly passed legislation extending marriage to homosexual couples. A public referendum held in September 2021 overwhelmingly confirmed support for marriage equality by 64%.
      

   Recognition of Same Sex Relationship in India

   India does not allow same-sex marriages; in fact, it does not possess a unified marriage law. None of the codified marriage laws explicitly define marriage between a man and a woman; neither do they prohibit same-sex marriage. Still, our legal system does not allow homosexual unions and is not ready to give them their fundamental rights. Somewhere, still, in the eyes of the government, homosexuality is not okay and cannot be "legitimized" and brought into the larger consciousness of society. Therefore, homosexuality is just limited to bedrooms and sexual acts. You can live with your partner but cannot get married. In the book "Same Sex Love in India: Readings from Literature and History" by Ruth Vanita, she analyzes dozens of marriages and suicides in the past few decades. She said that many marriages could be considered legal as, according to the Hindu Marriage Act, 1955, any marriage between two Hindus performed according to the customs in the community of one of the two partners is valid. No license is required to marry. Even most couples have sought the validation of family and community in same-sex marriages. Many countries have legalized same-sex relationships, but the Republic of India does not talk about homosexual unions. India is still following the pre-colonial period where getting married in the same sex is not legal. In the Manusmriti (ancient legal text), same-sex activity was a criminal offense and there was serious punishment for it.
    

   Fight of Same Sex Couples to Legitimize Their Union

   Three petitions were filed last year:
   • One of them was by the couple Dr. Kavita Arora, a psychiatrist, and Ankita Khanna, a therapist.
   • The second was by Parag Vijay Mehta, an overseas citizen of India cardholder, and Vaibhav Jain, an Indian citizen.
   • The third PIL was filed by defense analyst Abhijit Iyer Mitra and three others for the recognition of same-sex marriage under the Hindu Marriage Act.
   Seeking Dismissal of these petitions, center told Delhi high court "that a marriage in India necessarily depend upon age old customs, rituals, practices, cultural ethos and societal values" and reading down the sec 377 of IPC covering homosexuality, the Supreme Court had only decriminalized "a particular human behavior" but "neither intended to, nor did in fact, legitimize the human conduct in question".
   
   The government also argued that in the judgment of Navtej Singh Johar case "does not extend the right to privacy to include a fundamental right in the nature of a right to marry by two individuals of the same gender". The government said that the court can see the existing rights but can't create a new right. The government concluded by saying that "any interference in existing laws would cause complete havoc with the delicate balance of personal laws in the country".
   
   Government said that it will delicate the balance of personal laws where petitioners merely asked for the recognition of same sex marriage and in fact the will strengthen the social structure of marriage. Where they just want their love to be recognized and not because they want institution desperately, the want basic civil rights and privileges attached to the marriage act.
   
   They have no right on their partner because they are not "blood relative" or their spouse, they can't travel the world as couple, and they can't set up a joint bank account because queer couples are not legally recognized and there are so many hurdles that same sex couples go through.
   
   Petitioners were simply asking the choice of marriage with civil rights attached to it. In a developing country like India homosexuals are still facing hurdles for the reorganization of their love decriminalizing the sec 377 is historic but not sufficient there should be personal laws for homosexuals.
    

Recent Personal Bill Proposed in the Parliament:
Recently NCP MP SupriyaSule's bill also sought same legal rights to married LGBTQIA couples that heterosexual couples are entitled to. Another private member bill was introduced by a DMK MP that talked about providing rights to members of the LGBTQIA community for a life with dignity.9

The bill introduced by Sule, a parliamentarian from Maharashtra, proposed to amend the Special Marriage Act, 1954, to solemnize such marriages and fix the age of marriage at 21 years in case both parties were men and 18 years in case both were women. It also proposed to replace the words husband and wife with spouse by amending the various sections of the Act.

In the statement of 'Object and Reasons' of the bill, Sule said lesbian, gay, bisexual, transgender, queer (questioning), intersex, and agender (LGBTQIA) individuals still faced "persecution, discrimination and social stigma within society".

In 2018, the Supreme Court of India had struck down Section 37710 of the Indian Penal Code that decriminalised homosexuality. Citing another Supreme Court judgement, Sule said even after the determination of their sexual orientation, "LGBTQIA individuals are still unable to marry and raise their own families".

Stating that LGBTQIA couples had no access to rights that heterosexual couples were entitled to upon marriage, such as succession, maintenance and pensions, etc, she said, "Therefore, it is of the utmost importance to amend the Special Marriage
Act, 1954, to legalize same-sex marriage, and provide legal recognition to married LGBTQIA couples.

It will ensure that Article 14 and Article 21 of the Constitution were upheld, and that LGBTQIA couples were provided the rights they are entitled to, she said.

Research Methodology
Introduction to the Research

• "LGBT" rights in India have been evolving rapidly in recent years. However, Indian LGBTQ citizens still face social and legal difficulties in society.
• Same-sex marriages are not legally recognized in India. However, a bill for the legalization of same-sex marriage has been introduced in parliament.
• The Indian constitution talks about "ARTICLE – 14" i.e., the right to equality, but still, we are lacking in giving equal rights and recognition to homosexuals.

Research ObjectiveSociety needs to understand that a person belonging to "LGBTQ" is not suffering from any disease or mental illness. It is something natural, and it comes by birth, depending on the hormones and their sexual preferences for the same gender. Our objective is to find out:

• What does society think about the community?
• Whether they have equal rights and recognition as heterosexuals?
• Is there anything wrong if they get married?
• Does their marriage affect our culture in any aspect?
• Is it affecting their fundamental rights, i.e.,
  • Article 14 - Right to equality
  • Article 21 - Right to life

All these are related to Same Sex Marriages.

Recommendation And Conclusion 4.1 Recommendation:
Our country should undertake a review of certain provisions of the Constitution, as well as all legislation and policy, in order to:

1. Assess their compatibility with the rights to equality and non-discrimination as defined under the international instruments to which it is party and
2. Amend, and where necessary, repeal existing laws, regulations and policies that conflict with the right to equality.

Further, it is very important to educate people about LGBT rights. Human rights are natural rights which are inalienable, indestructible and are conferred upon everyone since birth. It is essential that people take note of the fact that homosexuals are not sick, they are not aliens, and their sexual orientation is perfectly in tune with the dictate of nature. Although the landmark 2018 court ruling and 2014 NALSA judgment were a huge leap in the advancement of LGBT+ rights movements in India. But still, the LGBT people in India are not equal and don't have the same rights as those available to a heterosexual person and they are still subjected to violence, discrimination in all spheres of life.

Our country should take action to raise public awareness about equality, and to ensure that all education establishments, including private, religious and military schools, provide suitable education on equality as a fundamental right. Such action is particularly necessary in order to modify social and cultural patterns of conduct and to eliminate prejudices which are based on the idea of the superiority or inferiority of one group within society in relation to another.

I further recommend that social scientists understand—and embrace—the diverse ways that parental status varies across union types. It is impossible to fully eliminate uncontrolled-variable bias, and we know that same-sex partners who are parents differ in other important ways from different-sex partners, in particular in terms of socio-demographic characteristics. Moreover, many same-sex partners did not have the option of becoming parents because of barriers to adoption as well as a lack of access to or the prohibitive cost of reproductive technologies and this unique history shapes their relationship experiences.

We could also compare parenthood and relationship experiences in geographic regions that differ on attitudes toward same-sex relationships and families.

Conclusion:
India is the world largest democracy incorporates the minority of homosexuals; it provides its people right to life, equality and personal liberty and still does not allow homosexuals to choose their partner for marriage. Homosexual marriages in several countries have been legalized and now it's time for India to give homosexuals their right to choose their partner for marriage.

Their union should be recognized with the proper civil rights. Love is love whether it's between man and woman, man and man, woman or woman. Marriage is a commitment to that love and they should be provided with this right. Homosexuals are also human just as heterosexuals then why are they deprived of their right to get marry to the person they love. Homosexuals do not harm anyone; one's support or opposition to this is a matter of personal belief and morality, with which government has no business to interfere with.

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.

I finally conclude by saying that homosexual marriage is not a criminal offence and there should be amendments in respect of that. Homosexual relationships are just pursuit of happiness and sexual desires.

Written By:

• Heena Yadav, BA.LLB, 9th Sem, ALS
• Payal Yadav, BA.LLB, 9th Sem, ALS

End Notes:

• AIR 2018 SC 4321
• Muslim Law S.R. Myneni
• The Indian Penal Code 1860, act no, 45 of 1860, secNon 377
• en.wikipedia.org/wiki/Same-sex_marriage
• en.wikipedia.org/wiki/Same-sex_marriage
• en.wikipedia.org/wiki/Same-sex_marriage
• indiatoday.in/india/story/10-instances-of-homosexuality-among-lgbts-in-ancient-india-12814462018-07-10
• indianexpress.com/arNcle/india/same-sex-marriages-legal-recogniNon-centre-7204303/
• hindustanNmes.com/india-news/ncp-mp-supriya-sule-introduces-bill-in-parl-on-legalising-same----sex-marriage-101648829254101.html