CONTEXT  

• Recently, the cases surrounding the question of same-sex marriages have came up before the High Court of Delhi.
• But the Union Government was found to be faltering, as it has argued that the matter was not important in the context of the second wave of COVID-19 cases.

ISSUES WITH PERSPECTIVE OF THE GOVERNMENT 

• While making the argument, government overlooked the basic notion that the plight of persons in same-sex and queer relationships looking after each other — without the legal protection of marital relationships, was exacerbated by the pandemic. 
• Also, it is a matter of some concern that the Union Government does not find urgency in extending civil rights to a class of persons who have approached a constitutional court.

SAME SEX MARRIAGE  AND LGBTQIA+ 

• Same-sex marriage, also known as gay marriage, is the marriage of two people of the same sex or gender, entered into in a civil or religious ceremony. 
• The LGBTQIA+ community is a community of Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual and other identities that make up a diverse group of individuals with varying sexual orientations and gender identities.

INTERNATIONAL JURISPRUDENCE 

• In South Africa, the Civil Union Act, 2006 was enacted as a result of the verdict by the Constitutional Court of South Africa, enabling the voluntary union of two persons above 18 years of age, by way of marriage.
• In 2007 in Australia, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 came to be enacted to provide equal entitlements for same-sex couples in matters of, inter alia, social security, employment and taxation. 
• Similarly, in England and Wales, the Marriage (Same Sex Couples) Act 2013 enabled same-sex couples to marry in civil ceremonies or with religious rites.
• Recently, in 2015, the Supreme Court of the United States decided that the fundamental right to marry is guaranteed to same-sex couples. 
• Hence, across the world, the recognition of the unequal laws discriminating against the LGBTQIA+ community has acted as a trigger to reform and modernise legal architecture to become more inclusive and equal.

RELATED JUDGMENTS BY COURTS OF INDIA

• • In India, marriages solemnised under personal laws such as the Hindu Marriage Act, 1955, Indian Christian Marriage Act, 1872, Muslim Personal Law (Shariat) Application Act, 1937 and so on. 
  • At present, though same-sex and queer marriages are not clearly recognised in India, we are not deprived of judicial guidance. 

• Arunkumarand Sreeja vs The Inspector General of Registration and Ors. of 2019:

• • • The Madurai Bench of the High Court of Madras employed a beneficial and purposive interpretation holding that the term ‘bride’ under the Hindu Marriage Act, 1955 includes transwomen and intersex persons identifying as women. 
    • Therefore, a marriage solemnised between a male and a transwoman, both professing the Hindu religion, is deemed to be a valid marriage under the Act. 
    • Hence, the judgment expanded the scope of a term used in the Hindu Marriage Act, 1955 in a progressive manner and set the stage for re-imagining marriage rights of the LGBTQIA+ community.

• Shafin Jahan vs Asokan K.M. and Others, 2018 (Hadiya case):

• • In this case the Supreme Court of India, considered the right to choose and marry a partner to be a constitutionally guaranteed freedom.
  • By doing so, the Supreme Court held that the “intimacies of marriage lie within a core zone of privacy, which is inviolable” and that “society has no role to play in determining our choice of partners”.
• Reading these cases together, it can be logically interpreted that, any legal or statutory bar to same-sex and queer marriages must necessarily be held to be unconstitutional and specifically violative of Articles 14, 15 and 21 of the Constitution of India. 
• Hence, the position of the Union Government that marriage is a bond between “a biological man and a biological woman” seems no longer tenable.

EXPANDING THE SCOPE OF MARRIAGE

• The domain of marriages, including religious marriages, cannot be immune to reform and review. 
• In the past, self-respect marriages were legalised in Tamil Nadu (and subsequently, in Puducherry) through amendments to the Hindu Marriage Act, 1955. 
  • These marriages were commonly conducted among those who are part of the Dravidian Movement and have done away with priests and religious symbols such as fire or saptapadi. 
  • Unlike traditional marriages, solemnization of self-respect marriages requires only an exchange of rings or garlands or tying of the mangalsutra. 
• Such reform of the Hindu Marriage Act, 1955 to bring self-respect marriages under its very umbrella, is seen as a strong move towards breaking caste-based practices within the institution of marriage.
• Similarly, understanding the needs of the LGBTQIA+ community today, the law must now expand the institution of marriage to include all gender and sexual identities. 

CONCLUSION 

• At least 29 countries in the world have legalised same-sex marriage. It is time that India thinks beyond the binary and reviews its existing legal architecture in order to legalise marriages irrespective of gender identity and sexual orientation.
• Any further delay in doing so would fall foul of our constitutional guarantees, judgments rendered by various High Courts and evolving international jurisprudence.

Reference:

1. https://www.thehindu.com/opinion/op-ed/in-india-looking-beyond-the-binary-to-a-spectrum/article34853466.ece