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Analysis of the Law Regarding Same-Sex Marriages, Civil Unions and Domestic Partnerships

SAME-SEX MARRIAGES

Same-sex marriage is matrimony between two individuals of the same sex.. This is popularly known as gay marriage or homosexual marriage. To be objective about the role of dissension of laws in the treatment of same-sex marriage, it is helpful to start with tolerance for the views of both sides in the substantive debate over whether or not to permit same-sex marriage. .[1] The outlook about same-sex marriage in any particular country reflects the set of values accepted in that specific community. This is determined through one’s own political processes, constitutional amendments, statutes enacted, or by judicial decisions declared in the courts.[2]

Predominantly, issues of family law that are, say, regarding marriage, divorce, and custody have generally been left to the discretion of the states. For instance, Goa has its own Unified Marriage Law in India. But for India as a whole, there is no unifying statute concerning marriage that all citizens are bound to comply with regardless of their religion.

THE BACKGROUND/TIMELINE OF SECTION 377

In India, Section 377[3] of the Indian Penal Code ‘criminalised carnal intercourse against the order of nature’. India’s take on this same-sex consensual sex had taken  a 360-degree flip after a series of events

  1. The first movement against Section 377 of the IPC was by the “AIDS Bhedbhav Virodhi Andolan” when they published a report called “Less than Gay: A Citizen’s Report”. This report mainly highlighted as to why criminalising gay consensual sex is a problem and why this Section has to be repealed.
  2. The second attempt was when an NGO called the Naz Foundation[4] filed a PIL in the High Court of Delhi in 2001, to legalise consensual gay sex between two individuals. But this PIL was dismissed by a two-judge bench in 2004.  The Supreme Court of India then ordered the Delhi High Court to hear this case again in 2009 after which homosexual intercourse between two adults was decriminalised. Post the declaration of this verdict, many people argued that Section 377 in that instant was violative of Articles 14, 15 and 21[5] of the Constitution.
  3. After this, a journalist and an astrologer named Suresh Kumar Koushal[6] challenged the verdict in the Supreme Court. His appeal was upheld. Following this, the decriminalisation of homosexual intercourse was reversed. It was then left to the discretion of the Parliament to decide whether Section 377 should be removed from the book of statutes.[7]
  4. The verdict triggered an outrage worldwide from the LGBTQIA communities. After this, many review petitions were filed which were eventually rejected. Later in 2016, the Supreme Court referred a curative plea to a five-judge bench.
  5. The two landmark judgements by the apex Court, in NALSA v.. UOI [8] in 2014 and in Justice K.S. Puttaswamy v.. UOI [9]in 2017 acted as a substantial curative against Section 377.
  6. This issue was reopened by a Constitutional Bench in 2018, which felt that it is not fair for a particular portion of the society to live in constant fear of having their rights to privacy, dignity and their right to choose undermined. The petitioners also purported that equality, dignity, fraternity, liberty and life assured by the preamble of the Constitution will not be extended to them in the presence of Section 377 of the IPC.
  7. In January 2018, the Supreme Court ruled unanimously in Navtej Singh Johar v.. UOI[10] that Section 377 was termed unconstitutional concerning consensual sexual conduct between adults of the same sex.

LEGAL RECOGNITION

The prime target of decriminalising  private and consensual same-sex intercourse has been achieved through the above mentioned events. Most countries like India have reached this either by legislation or by judicial decisions, though almost seventy-six other countries, mainly  Africa and West Asia, still retain discriminating  laws.[11]

However, this achievement   alone will not terminate the discrimination faced by the homosexual  community. It is unfair for these people who are engaged in a long term committed relationship with people of their own sex, as they are wound up in relationships without a label. Despite Section 377 of the IPC being repealed, same-sex couples are still looked down by a  significant portion of the society. Long-term same-sex unions deserve legal recognition on par with heterosexual marriages and discriminating them based on their sexual orientation is punishable both under civil and criminal law. Any existing marriage law  recognises only heterosexual marital relationships as valid relationships, thereby depriving same-sex couples of all other  benefits.

This idea of being in the lookout for parity with heterosexual relationships itself may be condemned by society, since  heterosexual marriages are said to be ingrained with customs and rituals. India has become a country where modernisation, globalisation and cultural influence from the west are seen multiplying as of current trends. However, there has  been a significant growth in conservative and revivalist ideas.[12]This antagonism in the name of culture, tradition and religion, however fallacious, is robust and it thus acts as a hindrance to liberal legalisation.

In 2011, Savita and Veena got married, and they were India’s first-ever married lesbian couple to gain legal recognition for their marriage. This happened in Haryana, the hub of honour killing and other religious crimes. This couple received huge threats from their relatives, family and community for disobeying communal rules and traditions. After this, the court had served notice on fourteen of Veena’s relatives and villagers who had threatened them with “dire consequences”. The couples were provided with adequate security by the police officials on court order. The couple then eventually won family approval.[13]

To make this approval legal and available for all, a group of citizens proposed a draft to the Law Commission of India, for a new Uniform Civil Code that would legalise same-sex marriage. This Act defines marriage as “the legal union of a man with a woman, a man with another man, a woman with another woman, a transgender person with another transgender person or a transgender person with a man or a woman”.[14]

There are specific legal benefits such as maintenance, succession, pension rights etc. that are available to only couples in an institution recognised as marriage. Economic benefits from the law like the EPF Scheme, 1952[15], and WCA, 1923[16] are given to only people who are recognised as a married couple or to people related by blood. Moreover, after the CARA [Central Adoption Resource Authority] issued new guidelines, unmarried couples and single people have found it progressively challenging to adopt.[17]

The most feasible approach to  attaining legal recognition for same-sex couples would be by an amendment to the Special Marriage Act, in order to authorise their marriages. This should be made on the ground that not sanctioning it would mean that the LGBTQIA community is being unfairly discriminated based on their sexual orientation. , Though a sizeable majority of the population resent the idea of same-sex marriage, a slender majority does believe that same-sex couples should receive treatment at par with the heterosexual couples concerning economic rights. Only legal reforms and amendments can put an end to this issue.

CIVIL UNIONS

A civil union is a legal relationship between two individuals, which provides them with legal protections at state levels[18]. A civil union is not a marriage, but is a ‘marriage-like’ arrangement accessible in several states that have its own variations of a marriage. This arrangement does not provide benefits like federal protection, economic interests or responsibilities.[19] Nevertheless, it does provide them with certain other state benefits, civil rights and legal protections such as joint property ownership, adoption etc. 

This arrangement was created with a purpose to provide same-sex couples a way to commit to each other, but without necessarily having to get married. While a civil union is generally viewed as an option to be taken by homosexual couples where a marital institution is not available, it is not just limited to them. As much as a civil union does provide partners with certain advantages, it is still placed inherently lower when compared to that of an  actual marriage. A marriage is not to be looked upon as something where the partners involved gain legal rights and benefits from each other. It has an equally important perk of providing both partners with social and legal recognition. A marital relationship involves within it  a great deal of historical, cultural, and social significance and a lot of emotional and familial values attached to it. Moreover, just because two institutions provide partners with the same legal rights, it need not necessarily mean they are equal. The social status upheld by a marital institution is as essential to same-sex couples as it is to heterosexual couples.

If a civil union arrangement is to be adopted in India, along with enacting a new law to govern it, a series of amendments will also have to be done in relevant legislations. Amendments may be made to The Indian Succession Act, 1925, Workmen’s Compensation Act, 1923, Guardians and Wards Act, 1890 and other laws regarding pensions, adoption, succession, etc. to ensure that a partner in this arrangement is considered equal to that of a spouse. [20]

While civil unions do not interfere in terms of religious freedom, it does invite strong  opposition, citing cultural reasons. This is because a civil union provides couples with the legislative permit to stay in non-marital relationships, be it for a homosexual or a heterosexual couple.  Thus, even on a calculative thought, seeking legislative recognition of civil unions in India does not  seem to be of the right course at the moment.

DOMESTIC PARTNERSHIPS

A domestic partnership is a form of relationship between two people who live together under the same shelter and share an ordinary domestic life but are not married to each other or anybody else. This kind of relationship is also called a ‘live-in relationship’. In such domestic partnerships, ‘partners’ cohabitate without being bound by responsibilities or obligations towards each other. This allows room for partners to explore each other’s personalities and to seek if they are compatible with thinking about taking that relationship any further. This is a very convenient arrangement that looks to avoid a lot of family drama, chaos and lengthy court proceedings in case the couple decide to part ways. Since there is no law tying them, either party can walk out of the relationship if and when they feel it not working out. In Indra Sarma v. V.K.V Sarma[21] the Supreme Court categorised live-in relationships into various categories:  

  1. A live-in relationship between an unmarried adult male and a female.
  2. A live-in relationship between a married male and unmarried female. (Mutual)
  3. A live-in relationship between an unmarried male and married female. (Mutual)

The first category is the simplest of the lot and is absolutely legal for a man and woman who love each other to live together. It is considered as a part of their Right to Life under Article 21, and will thus not be treated as an offence. The second category is legal if entered with mutual consent; and if not, then it is punishable under the IPC. The third category is considered as adultery and is punishable under the IPC as well. A domestic partnership between two homosexuals is also legal as there are no marital laws against homosexuality in India.

When it comes to legal recognition of domestic partnerships, the Apex Court has decided  in many of its cases  that, when two individuals live like a husband and a wife and continue to have children, they will be treated as a married couple. The same laws will apply to them as well. When the couple decide to part, the Right to seek maintenance and granting of alimony to the aggrieved partner is determined by the Domestic Violence Act. This is determined based on the facts and circumstances of each case.

Since live-in relationships are not religiously recognisable, the courts have widened the scope of CPC for maintenance in such cases. Section 125[22] of CPC facilitates the legal right of support to the woman. This is granted to the woman irrespective of her being in or out of a marital arrangement. Section 2(f)[23] of the DVA that protects women from physical, mental, economic or verbal abuse applies to live-in relationships also. Live-in partners are not legally allowed to adopt children. But children born to partners of a live-in relationship do have a right of inheritance and are entitled to a share in  both ancestral and self-bought property. Right of maintenance to children differs based on different personal laws. In Hindu Law, the father has to take care of the child, whereas under Sharia Law, it is the vice-versa.

CONCLUSION:

Being in a country with such divided opinions on the above said relationships, it is not just difficult but close to impossible to provide solutions to the potential chaos. As more parts of the country begin to recognise these relationships, more focus has to be tended to the conflict of law involved. Not only will the beast raise its ugly head with regards the recognition and termination of such relationships, but perhaps ever more frequently with regards to the rights and duties associated with the relationship.[24] The debate will, however, without doubt continue.


[1]Linda Silberman, Same-Sex Marriage: Refining the Conflict of Laws Analysis, 153UNIVERSITY OF PENNSYLVANIA L. REV. . 2195, 2195 (2005).

[2]Linda Silberman & Karin Wolfe, The Importance of Private International Law for Family Issues in an Era of Globalization: Two Case Studies—International Child Abduction and Same-Sex Unions, 32 HOFSTRA L. REV. 233, 247-48 (2003).

[3]Indian Penal Code, 1860 No. 45, Acts of Parliament, 1860 (India).

[4] Naz foundation v. Government of NCT of Delhi, (2001) 160 Delhi Law Times 277 (India).

[5] INDIA CONST. art 14, art 15, art 21.

[6]Suresh Kumar Koushal v. Naz Foundation & Ors, (2014) 1 SCC 1,(India).

[7]Gautam Bhatia, The Unbearable Wrongness of Koushal v. Naz Foundation, Indian Constitutional Law and Philosophy, INDIAN CONSTITUTIONAL LAW AND PHILOSOPHY, (Dec. 11, 2013), https://indconlawphil.wordpress.com/2013/12/11/the-unbearable-wrongness-of-koushal-vs-naz-foundation/.

[8]NALSA v.. Union Of India, W.P. (C) No. 7455 of 2001 (India).

[9]K.S. Puttaswamy v.. Union Of India, (2017) 10 SCC 1 (India).

[10]Navtej Singh Johar v. Union Of India W.P. (CRL.) No. 76 of 2016 (India).

[11] Report of the United Nations High Commissioner for Human Rights on Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, UNITED NATIONS GENERAL ASSEMBLY, (Nov. 17, 2011), https://www.ohchr.org/Documents/Issues/Discrimination/A.HRC.19.41_English.pdf.

[12]SUNIL KHILNANI, THE IDEA OF INDIA 180 (2004).

[13]Deepak Kumar Dash & Sanjay Yadav, In a first, Gurgaon Court recognizes lesbian marriage, TIMES OF INDIA,  (Jul. 29, 2011, 12:33 AM) , https://timesofindia.indiatimes.com/city/gurgaon/In-a-first-Gurgaon-court-recognizes-lesbian-marriage/articleshow/9401421.cms.

[14]Anurag Dey, A new UCC for a new India? Progressive draft UCC allows for same sex marriages, CATCHNEWS, (Oct. 13, 2017, 11:39 AM), http://www.catchnews.com/india-news/a-new-ucc-for-a-new-india-progressive-draft-ucc-allows-for-same-sex-marriages-85386.html.

[15] Employees’ Provident Fund Scheme, 1952, No. 19, Acts of Parliament, 1952  (India).

[16] The Workmen’s Compensation Act, 1923, No. 8 Acts of Parliament, 1923 (India).

[17]Siddharth Narrain & Birsha Ohdedar, A legal perspective on Same-Sex Marriage and other Queer relationships in India, ORINAM, (May 31, 2014), http://orinam.net/resources-for/law-and-enforcement/same-sex-marriage-in-india/.

[18]What is a Civil Union?, FINDLAW, (Oct 1. 2018), https://family.findlaw.com/domestic-partnerships/what-is-a-civil-union.html.

[19]79% of Israelis back gay marriage or civil unions, THE TIMES OF ISRAEL, (June 9, 2017 12:45 AM), https://www.timesofisrael.com/poll-79-of-israelis-back-gay-marriage-or-civil-unions/.

[20]Nayantara Ravichandran, Legal Recognition of Same-sex Relationships in India, 5 MANUPATRA 95, 101 (2013).

[21]Sarma v.. V.K.V Sarma, SLP (CRL.) No. 4895 of 2012, (India).

[22]The Civil Procedure Code, 1908,  No. 15, Acts of Parliament, 1908 (India).

[23]The Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India).

[24] Ian Curry-Sumner & Scott Curry-Sumner, Is the union civil? Same-sex marriages, civil unions, domestic partnerships and reciprocal benefits in the USA, 4(2) UTRECHT L. REV. 236 (2008).


Cite this article (The Bluebook 20th ed.)-

Harshitha Jayakumar, Analysis of the Law Regarding Same-Sex Marriages, Civil Unions and Domestic Partnerships, Ex Gratia Law Journal, (October 1, 2020), https://exgratialawjournal.in/journal/volume-1-issue-2/analysis-of-the-law-regarding-same-sex-marriages-civil-unions-and-domestic-partnerships-by-harshitha-jayakumar/.

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Author

Harshitha Jayakumar
Student - SASTRA Deemed to be University