Marriage Rights of the LGBTQIA+ community

Synopsis: India needs to look beyond the traditional concept of marriages to recognise marriages irrespective of gender identity and sexual orientation. Thus, India can recognise the marriage rights of the LGBTQIA+ community.

Background:

• Recently, a case related to the question of same-sex marriages came up before the High Court of Delhi.
• But the Union Government requested the court to adjourn it on the ground that it is not urgent during the second wave of COVID-19 cases.
• Court and the government ignored the suffering of the community without the legal protection of marital relationships.
• In India, marriages are observed under personal laws. Such as the Hindu Marriage Act, 1955, Indian Christian Marriage Act, 1872, Muslim Personal Law (Shariat) Application Act, 1937.

However, Same-sex and queer marriages are not legally recognised in India.

How marriage rights of the LGBTQIA+ community evolved globally?

• South Africa: In 2005 South African court held that the common law definition of marriage i.e. “a union of one man with one woman” is inconsistent.
  • As a result of the verdict, the Civil Union Act, 2006 was enacted which enabled the voluntary union of two persons above 18 years of age.
• Australia, the reforms by Honourable Michael Kirby in 2007: the Federal Government enacted the Same-Sex Relationships Act 2008 to provide equal entitlements for same-sex couples in matters of social security, employment and taxation.
• The Marriage (Same Sex Couples) Act 2013 of England: It enabled same-sex couples to marry in civil ceremonies or with religious rites.
• Obergefell vs Hodges case, USA: In 2015, the Supreme Court decided that the fundamental right to marry is guaranteed to same-sex couples.

Judgements in India recognising marriage rights of the LGBTQIA+ community:

In India also, there is judicial guidance available to recognize same sex marriages.

• Arunkumarand Sreeja vs The Inspector General of Registration and Ors, 2019: The High Court of Madras interpretated the term ‘bride’ under the Hindu Marriage Act, 1955 and expanded its scope.
  • It says a ‘bride’ includes transwomen and intersex persons identifying as women.
  • Therefore, a marriage between a male and a transwoman can be valid under the Act.
• Shafin Jahan vs Asokan K.M. and Others AIR 2018 (Hadiya case): The Court upheld that the right to choose and marry a partner comes under right to freedom.
  • Court also observed that marriage lie within a core zone of privacy and society has no role to play in determining our choice of partners.

It shows that bar to same-sex and queer marriages are violative of Articles 14, 15 and 21 of the Constitution of India. Further, the concept of marriage that it is a bond between “a biological man and a biological woman” can not be defended.

Way forward:

• The marriage laws must be expanded to include all gender and sexual identities.
• Reform in the Hindu Marriage Act, 1955 is needed to bring self-respect marriages under its domain.
  • Self-respect Marriages were legalised in Tamil Nadu and Puducherry through amendments to the Hindu Marriage Act, 1955.
    • Self-respect marriages have done away with priests and religious symbols such as fire or saptapadi. Instead, the solemnisation of self-respect marriages only requires an exchange of rings or garlands or tying of the mangalsutra.
  • It will help in breaking caste-based and gender-based practices.

The recognition of the unequal laws discriminating against the LGBTQIA+ community and rectifying them is the need of the hour to make the world more inclusive and equal.

Source: The Hindu