The world is continuously evolving and it has been since time immemorial; However, the rate of evolution has been increasing exponentially in recent times. The rate of advancements in technology and science are only rivalled by that of progressive social thinking and the emergence of novel schools of thought acknowledging and even normalizing aspects and instances of society and its constituents.

One such aspect that has taken the limelight in recent times in the LGBTQ+ community and the prospects and notions put forth by their emergence let alone existence. Among the many, equally important rights, fought for the community, the acceptance and legal recognition of same sex companionship and marriages is of great importance.

Humans are social beings, more so, a large part of the human life cycle, the later stages of it in specific, is centered around companionship and its implications. Humans have lived together since time immemorial and the idea of companionship can be said to be inherent in humans as a part of our natural being. Having a partner is a wholistic need of a person encompassing physical, mental and emotional objectives.

The idea of living together surpasses records and observations and is widely accepted to have a place even in prehistoric times. Though its origins may not have been as structured, monogamous or even holistic as it has come to be now, it has nevertheless been an integral part of both private and social life.

The institution of marriage seeks to legitimize in a way, such companionship between two individuals there by acting as a social acknowledgement of the decision taken by said individuals to bestow upon themselves the right to cherish, embrace and call their significant other as their wife or husband, even in a more representational sense, while also assenting to an implied or explicit set of duties brought forth by such marriage; It is pertinent to note that such rights and obligations though to a large extent are prescribed by personal laws that govern the marriage, a fair share of the ‘right and duty’ is characteristic to every marriage.

Now that both fundamental entities that are to be explored in this document have been prefaced we can now interlace them individually with the ethos, perspective, and ideologies of Indian law and analyze the status of the aforementioned in contemporary society that is in an awkward transitional state where the seeds of change have been laid for a while now by activists, movements are people who fight for such rights, yet though there are a relevant section of the population who have at least come to accept such rights even if not support them, such a quantifiable section of the population pales in comparison to the millions and millions of people, who in this sense are still regressive if equality and upliftment are two of the many pillars of progress; After all the government is the consciousness of the people, and it has seldom forsaken the majority for the sake of the minority.

In light of recent judgements that deal with such issues, the aforementioned minority of people is growing fast thanks to the recognition and rationale given to such sensitive topics by the court, yet the legislative is rather vehement in its not so passive-aggressive stance against LGBTQ+ rights let alone the recognition of their consensual relationships and marriages.
The judiciary has played a formidable role in protecting the people, their rights and justifiable interests, but there is in fact a glass ceiling of sorts where a line is drawn, where the power to protect the people under law cannot be construed as power to make law itself.

With all this said and pondered upon, in a bittersweet sense, there is a certain level of tolerance and acceptance, especially in the eyes of the law and its agents towards same sex relationships, yet not as much for same sex marriages. The reasoning behind such a state of thought can be rational to some yet seems to barely qualify as reasonable to others, yet in hopes of progress and change for the greater good the envelope continues to be pushed.

With the integral themes and constituents of this document prefaced, let us now analyze the matter in itself.

Right to Marriage
Article 21 of the Indian Constitution confers the right, not limited only to citizens of the state, the right to life and personal liberty. Further, The Honourable Allahabad High Court recently in Salamat Ansari and others versus State of UP and others[1] cancelled a case against a Muslim man filed by the parents of his wife who had converted to Islam and became a Muslim before marrying him saying that the court doesn’t see them as a Hindu-Muslim couple.

A Bench comprising of Honourable Justice Pankaj Naqvi and Justice Vivek Agarwal while doing so reiterated that a person’s right to live with a person of choice, irrespective of religion, is intrinsic to the right to life, and of personal liberty.[2]

The Supreme Court, in the case of Lata Singh vs. the State of Uttar Pradesh, AIR 2006 SC 2522 viewed the right to marry as a component of right to life under Art 21 of Indian Constitution the court observed that:

“This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste marriage the maximum they can do is that they can cut off social relations with the son or daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste marriage”.[3]

In the above instances, of many more, there is no qualification for the term ‘person of choice’, so for any reasonable man, it should be safe to assume that by law, a person can choose to live with or marry anyone, even if that person be of the same sex. However, though we have made significant progress socialistically, legislatively and jurisprudentially speaking in as much to disqualify age, caste, religion, wealth as encumbrances to the right to marry the person of choice, the notion of marrying someone from the same sex is still perceived as alien, unacceptable and unnatural.

Right To Be In A Relationship
In contemporary society, it is conventional that once an individual is primarily major and is further mentally sensible enough so as to be able to independently manage their own affairs to a reasonable extent, there cannot be any rational impediment to them being involved consensually with another person in a relationship withstanding that of a romantic nature.

The Allahabad High Court recognised the concept of live-in relationship in Payal Sharma v. Nari Niketan[4], wherein the Bench consisting of Justice M. Katju and Justice R.B. Mishra observed that, “In our opinion, a man and a woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society, but it is not illegal. There is a difference between law and morality.”

Thereafter, in Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel[5], the Court observed that two people who are in a live-in relationship without a formal marriage are not criminal offenders.

In landmark case of S. Khushboo v. Kanniammal[6], the Supreme Court held that a living relationship comes within the ambit of right to life under Article 21 of the Constitution of India. The Court further held that live-in relationships are permissible and the act of two major living together cannot be considered illegal or unlawful.

Thus, even while not venturing further into the remnant of many such judgements that recognize, acknowledge and protect the right to be in a relationship with a person of choice, we can infer that though there isn’t a similar widespread consensus in respect of the general society yet, the courts have protected such right. However, up until very recent times such acknowledgement was only extended to straight (couples where the individuals are from the opposite sexes) couples and not same sex couples.

S. Sushma v. Director General of Police, WP No. 7284 of 2021[7]
Landmark judgements are always momentous, often in retrospect, yet there may very well be one such brilliant judgement in the making and we ought to be privileged in a way to be privy to it. Recently a petition was filed in the Madras High Court by two girls who were in a relationship with each other, seeking protection from their parents who were vehemently against their same-sex relationship.

On the 29th of March 2021, Justice N. Anand Venkatesh issued directions to the families of two girls respectively, to attend counselling sessions with a counsellor who specializes in working with LGBTQI+ individuals so as to handle the issue with sensibility and thought.

Justice Anand went on to say, “I am also trying to break my own preconceived notions about this issue and am in the process of evolving, and sincerely attempting to understand the feelings of the petitioners and their parents; thereafter, I will proceed to write a detailed order on this issue”

It is definitely wholesome and inspiring to see such progressiveness exemplified by the High Court of Madras, especially given the stature and platform it possesses. Needless to say, the winds of change that have now been manifested by the mast of the this impending judgement will go on to allow and have many more following suit. Yet, a sense of disillusionment is very much beneath the thin surface of this juncture.

The courts have been able to interpret Article 21 and the ideologies and principles it represents independent of the article itself simply because the legislation does not say otherwise, however the same cannot be said for the case of marriage(s)

The Centre And The Central Issue Of Same Sex Marriages
Seeking dismissal of petitions praying for recognition of same-sex marriages under existing laws, the Centre Thursday told the Delhi High Court that a marriage in India necessarily depends upon “age-old customs, rituals, practices, cultural ethos and societal values”, and that in reading down the provision of Section 377 of the IPC covering homosexuality, the Supreme Court had only decriminalised “a particular human behaviour” but “neither intended to, nor did in fact, legitimise the human conduct in question”.

“The fundamental right under Article 21 is subject to the procedure established by law and the same cannot be expanded to… include the fundamental right for same sex marriage to be recognised under the laws… which in fact mandate the contrary,” the Centre’s reply says:
Living together as partners or in a relationship with a same-sex individual is “not comparable” with the “Indian family unit concept” of a husband, wife and children, the government said, arguing that the institution of marriage has a “sanctity”. “In our country, despite statutory recognition of the relationship of marriage between a biological man and a biological woman, marriage necessarily depends upon age-old customs… societal values.”

The government also argued that while marriage happens between two private individuals, it “cannot be relegated” to merely a concept within the domain of privacy of an individual. On the other hand, the Centre told the Delhi High Court, marriage is recognised as public recognition of a relationship, with which several statutory rights and obligations are attached. It also said that the Supreme Court judgment in the Navtej Singh Johar case[8] “does not extend the right to privacy to include a fundamental right in the nature of a right to marry by two individuals of same gender”.[9]

The stark difference in the prospects of same-sex marriages as opposed to that of same-sex relationships under the eyes of the law is simply that the legislations explicitly acknowledge only heteronormative forms of the former, while it simply does not place any qualification along the lines of the same for the latter. Thus, even if the court wants to uphold the martial rights of same sex marriages it simply cannot as the law in so much as everything we have thus fair does not give rise to do so.

As idealistic as it may seem for the court to once again be a knight in shining Armor and save the day as far as same-sex marriages are concerned, in truth and realism it would only be ideal that the court be able to do so while still not overstepping the division of powers its governed by, but sadly the legislative don’t seem keen let alone open to that prospect.

Conclusion
Thus, India is in a complex state of affairs in a metaphysical sense, as though we are driven by progressiveness and social evolution, we are also anchored by customs and traditions and the ideologies and principles they represent, and these often take up a mantle of sanctity and superiority than mere procedural aspects of society.


One can ask that why in the first place do same-sex couples need to be able to lawfully get married in the first place, can’t a mere relationship suffice ? Sadly we fail to realise that such aspiration to marriage comes from a place similar to that of the origin of the institution of marriage in itself, albeit the so called natural form of it, consisting of a monogamous heterosexual couple.

Simply to be able to enjoy the benefits and rights entailed by the ability to avail such lawful marriage and not merely for the emotional and mental acknowledgement of sorts it brings. Some compelling practical reasons to seek social and legal recognition of same-sex relationships are as follows; Certain legal benefits such as succession, maintenance, and pension rights that are available to married couples are not available to same-sex couples.

Economic benefits from laws like the Employment Provident Fund Scheme, 1952 and Workmen’s Compensation Act, 1923 are given only to those related by blood or marriage. After the Central Adoption Resource Authority (CARA) issued guidelines for adoption, single persons and unmarried couples have found it increasingly difficult to adopt. Further, not all persons in same-sex relationships are seeking radical changes in society and its institution, and many are politically conservative.

Many of them merely desire acceptance without discrimination and the option to have a legally recognised partnership.[10]

In all appreciation, the progress India as a state has made in commendable given its relatively conservative roots and culture driven societies, and it is even more commendable that the courts have been the conscience of the people, and not just heteronormative people. The glimmer of hope given by the continuously growing acceptance of the LGBTQ+ community both from the law as well as society in general is nothing short of amazing. A large part of this is owed to the jurisprudential development of the courts while addressing such matters which in turn translates into the better understanding and as a result, acceptance of such prospects by the people of the land.

However this glimmer of hope is but a smouldering wick in the cold hands and heart of the legislation that fails to acknowledge the legitimacy of the emotional and physiological development of human beings as much as it acknowledges the legitimacy of the customs and traditions and notions it so dearly holds and adheres. It isn’t impossible for these to co-exist, and hopefully, with the persistent and endearing efforts of the more inclusive and forward thinking people, soon the legislature too will be able to make peace with its internal conflict, giving rise to a functional amalgamation of essential human rights and an amicably culture rich, yet thoughtful and progressive society.

End-Notes:

1. Crl. Misc. WP No. 11367 of 2020
2. Right To Choose A Partner Is A Fundamental Right.” Legal Service India - Law, Lawyers and Legal Resources, www.legalserviceindia.com/legal/article-4219-right-to-choose-a-partner-is-a-fundamental-right.html.
3. AIR 2006 SC 2522
4. 2001 SCC OnLine All 332.
5. (2006) 8 SCC 726
6. (2010) 5 SCC 600
7. WP No. 7284 of 2021
8. W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016
9. Ahsan, Sofi. “Centre Opposes Same-Sex Marriage in Delhi HC, Says Not Comparable with 'Indian Family Unit Concept'.” The Indian Express, 25 Feb. 2021, indianexpress.com/article/india/same-sex-marriages-legal-recognition-centre-7204303/.
10. Ravichandran, Nayantara. “Legal Recognition of Samesex Relationships in India.” Manupatra.com.

Written By: Joshua Immanuel Samuel