Does victorian morality hold India’s legality of same-sex marriage at bay?

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As the legality of same-sex marriage gets approval in Latin America’s Chile, the 31st such country in the world, the stand of a diverse country like India is still not clear as the long-pending subject is lying in court while the LGBTQ community says that the country is still following the Victorian law introduced by the British which they themselves took away.

A batch of petitions filed by the persons belonging to the Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ+) community seeking a declaration of recognising same-sex marriages under the special, Hindu and foreign marriage laws, is pending before the Delhi High Court.

This includes the plea of a queer couple — an Overseas Citizen of India (OCI), and a foreigner — seeking recognition of same-sex marriage under the Foreign Marriage Act and Special Marriage Act and another was on live-streaming of same-sex marriage proceedings in the country.

All these pleas seeking favour of same-sex marriage will be taken up by the High Court on February 3, 2022, as the court will also hear a plea opposing the registration of these marriages under the Hindu Marriage Act and seeking its registration either religion-neutral or under secular law.

Centre’s stand

The apex Indian court, in 2018, in a case filed by dancer Navtej Singh Johar among other petitioners passed the landmark decision to scrap section 377 of the IPC, which decriminalised homosexuality. However, the latest reply of the government on the issue before the Delhi High Court was not in favour of Same-Sex marriages in the country.

The Centre, on October 25, submitted before the court that “marriage” is a term associated with heterosexual couples and “spouse” means husband and wife, as it contended that there is “some misconception” regarding the order in Navtej Singh Johar case which decriminalised homosexual sex but does not talk about marriage.

It was argued that Navtej Singh Johar’s case does not talk about marriage, adding that marriage is permissible between a biological man and a biological woman.

The Court’s submission came in a petition for legal recognition of all same-sex, queer, or non-heterosexual marriages under secular legislation for marriage such as the Foreign Marriage Act, 1969 and the Special Marriage Act 1954.

Countries that allowed Same-Sex marriage

Two decades ago, marriage equality for same-sex couples was first legally acknowledged in the Netherlands on April 1, 2001. Same-sex marriage is legally performed and recognized–nationwide or in some parts — in 31 countries. They are — Argentina, Australia, Austria, Belgium, Brazil, Canada, Colombia, Costa Rica, the Realm of Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, metropolitan Netherlands, metropolitan New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Taiwan, the United Kingdom, the United States, and Uruguay.

In Switzerland and in Chile, same-sex marriage will be performed from 2022.

Same-sex marriage in the United States expanded from one state in 2004 to all fifty states in 2015 through various state court rulings, state legislation, direct popular votes, and federal court rulings. The fifty states each have separate marriage laws, which must adhere to rulings by the Supreme Court of the United States that recognise marriage as a fundamental right that is guaranteed by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, as first established in the 1967 landmark civil rights case of Loving v. Virginia.

Chile is the ninth country in the Americas to pass marriage equality legislation, joining Canada, Argentina, Brazil, Uruguay, the United States, Colombia, Ecuador, and Costa Rica.

Still following Victorian law, says LGBT community

Talking to IANS, noted transgender activist Kalki Subramaniam said the Centre’s stand seems India still follows the century-old Victorian law when it comes to same-sex marriage.

Consensual sex between the same gender was earlier a crime, but not anymore, however, when it comes to marriage the views of the government are not favourable for the LGBT community, she said.

Now more people are coming out and revealing their identity bravely in their workplaces, homes. The Government has to look into it more humanely as the togetherness between two persons and not just as two genders. Marriage is not just for reproduction, it is much more, she said, adding we are not just animals just to produce babies year after year and generation after generation.

“We are a civilised society and we have the right to fall in love with the person who will take care and support each other and nourish a healthy relationship to a healthy society. The government and judiciary have to look into this aspect as simple as it is,” she said.

The government cannot decide who can fall in love with whom and it is nobody’s business.

“It’s my own right and my own decision… it should be in that way… but the views of the authorities are unfortunate and we are going backward”, she said.

When asked if the same-sex marriage is really necessary, she said: “Personally, I do not believe in the institution of marriage. But my friends and other transgenders do. I will stand for their rights,” she added.

(Jaison Wilson can be reached at jaison.w@ians.in)

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