If We Truly Are Progressive, Why 'Values' & 'Society' Do Not Want To Accept Gay Marriage

After the historic decriminalisation of homosexual relationships two years ago, the next step for ensuring equal extension of rights to the LGBTQIA community is legalising same-sex marriage.

A few days ago, a PIL was filed in the Delhi HIgh Court that sought legalising same sex marriage under the Hindu Marriage Act. The public interest litigation urged the court to issue a declaration to the effect that since Section 5 of the Hindu Marriage Act of 1956 mentions that "marriage can be performed between 'any two Hindus'" and does not distinguish based on sex or gender, the right of same-sex couples to marry should be recognized under the said Act.

The PIL also argued that the non-recognition of the rights of homosexual couples especially when the Supreme Court has recognised their sexuality violates various provisions of the Indian Constitution.

BCCL

"That Right to Marry is also stated under the Human Rights Charter within the meaning of the right to start a family. The Right to Marry is a universal right and it is available to everyone irrespective of their sexual orientation and gender identity," the PIL argued.

However, the Centre, in its response to the PIL, opposed it saying that the society does not recognise marriage between couple of the same sex.

¡°Our law, society, values don¡¯t recognise marriage ¨C which is a sacrament ¨C between a same-sex couple,¡± Mehta submitted in the Delhi High Court, adding that one has to a man and a woman for a marriage to not fall within degrees of the prohibited relationship under the Hindu Marriage Act.

The Court, however, has a progressive perspective to the plea.

The Court observed that such a petition must be viewed with an open mind. Acknowledging that though the position of law might be different, the Bench stated that "changes are happening across the world."

The September 2018 verdict was a watershed moment for the country, bringing it in the league of progressive countries which recognise the rights of homosexual individuals. The verdict brought hope and reignited the spirit of the LGBTQIA rights movement and their struggles.

AFP

While India has decriminalised same-sex relations, it is yet to legalise same sex marriage. The same-sex couple cannot get married to each other and their marriage is not deemed legal in the country, mostly due to the "societal values" which still view such relationships through the lens of stigma and taboo and are generally disapproving of such relationships, because they do not fall under the age-old binaries.

The legal approval of their relations acts as a reinforcement of social acceptance and plays a major role in evolving a non-judgemental society.

Article 15(1) of the Constitution of India provides no discrimination of a citizen on the grounds of religion, race, caste, sex, place of birth or any of them.

Article 21 of the Constitution ensures protection of life and personal liberty. In essence, the Constitution serves as a basis for right to marriage for same-sex couples but the discrimination exists in multiple forms.

With such provisions in the Constitution, a court of law cannot be restricted to make same-sex marriage legal, however certain provisions are needed against discrimination.