1) In India, looking beyond the binary to a spectrum

GS 1 & 2- Social Empowerment, Vulnerable section

Context: In the following article the author talks about the legalisation of same sex marraiges and government’s stand on it.

What’s the matter?

• When the cases surrounding the question of same-sex marriages came up before the High Court of Delhi, the Union Government was found to be dithering.
• Though the Union Government argued that the matter was not important in the context of the second wave of COVID-19 cases,
• It 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.
• Union Government does not find urgency in a matter of extending civil rights to a class of persons who have approached a constitutional court.
•  Any further delay in doing so would fall foul of our constitutional guarantees, judgments rendered by various High Courts and evolving international jurisprudence.
• The last two decades have witnessed tremendous progress in establishing civil rights for the LGBTQIA+ community.

International jurisprudence

• In case of South Africa after a long struggle, the Civil Union Act, 2006 was enacted, enabling the voluntary union of two persons above 18 years of age, by way of marriage.
• In 2007 in Australia, the reforms to civil rights of queer community were prompted by the Honourable Michael Kirby. Same-Sex Relationships Act 2008 came to be enacted to  provide equal entitlements for same-sex couples in matters of, inter alia, social security, employment and taxation.
•  England and Wales, the Marriage (Same Sex Couples) Act 2013 enabled same-sex couples to marry in civil ceremonies or with religious rites.
•  In 2015, the Supreme Court of the United States decided that the fundamental right to marry is guaranteed to same-sex couple.
• While doing so, the Supreme Court of the United States held the denial of marriage rights to same-sex couples to be a “grave and continuing harm, serving to disrespect and subordinate gays and lesbians”
• 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.

Courts and civil rights

• 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.
•  In case of Arunkumarand Sreeja vs The Inspector General of Registration and Ors. 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.
• The import of this judgment cannot be overstated as it expands the scope of a term used in the Hindu Marriage Act, 1955 in a progressive manner and sets the stage for re-imagining marriage rights of the LGBTQIA+ community.
• The judgment of the Madras High Court builds on the tenets laid down by the Supreme Court of India in Shafin Jahan vs Asokan K.M. and Others AIR 2018 SC 1933 (Hadiya case), wherein the right to choose and marry a partner was considered to be a constitutionally guaranteed freedom.
• 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”.
• 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.

Expanding scope of marriage

• The domain of marriages, including religious marriages, cannot be immune to reform and review. Self-respect marriages were legalised in Tamil Nadu through amendments to the Hindu Marriage Act, 1955.
• 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.

Conclusion

Understanding the needs of the LGBTQIA+ community today, the law must now expand the institution of marriage to include all gender and sexual identities. 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.