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LGBTQ MARRIAGE: A TABOO IN INDIA

Abstract

“To love oneself is the beginning of a lifelong romance.” Oscar Wilde Homosexuality and same-sex marriage are serious problems in our society. This paper discusses whether homosexuality and same-sex marriage are still considered taboo. Taboo refers to any human behavior that is normal for him/her/them but not for others. As a result, we can only recognize taboo 1when we encounter others who disagree with us. Every society has a different perspective on any type of taboo-breaking behavior. Hence homosexuality and same sex marriage is hotly debated between individuals that, should it be considered as a taboo or not? People's tolerance for behaviors such as homosexuality and same-sex marriage is determined by their current norms, values, and belief system.


Keywords : homosexuality, same sex marriage, taboo.


Introduction

In India, marriage is a sacred, eternal, and everlasting union. 2Even among India's diverse population, the concept of marriage is revered. The institution of marriage and family are regarded as the foundation of advancement in Indian society; however, as a Marriage country bound in the threads of customs, traditions, and rituals, people's growth and perspectives have not been fully realized. Discussions about same-sex marriages and relationships have been and continue to be taboo among the majority of Indians. In the country, same-sex marriage is considered a crime, and thus the government opposes it through the implementation of various provisions in the legislation that prohibit the practice.

As a result, there is widespread homophobia among those involved in same-sex marriages, and there have been reports of violent treatment of those who have been identified.

The legal recognition of homosexuality as not an offense was made in a recent Supreme Court decision in 2018[3], but the social stigma persists like a leech. The decriminalization of Section 377 was a watershed moment in Indian legal history, but it was only the starting point. The main objection to ultimatum parity with heterosexual relationships or marriages is primarily based on the establishment of the institution of family, which is suppressed by patriarchal ethics, norms, and values.


Historical background:

In India, homosexuality has a long history. Around 1500 BC, ancient texts such as the Rig-Veda mention various sculptures and vestiges that clearly depict sexual acts between women, where sexuality was based on pleasure and fertility. In medieval Muslim history, Muslim nawabs and Hindu aristocrats kept young boys for homosexuality.4 Tantric rituals also contain evidence of sodomy and same-sex relationships. With the advent of Vedic Brahmanism and British Colonialism, these experiences lost their significance. Through the emerging dominance of patriarchy, the Aryan invasion in 1500 B.C. suppressed homosexuality. There are references in the manusmriti to punishments such as caste loss, heavy monetary fines, and whippings for gay and lesbians. Vtsyyana's ancient Indian text Kamasutra devotes an entire chapter to erotic homosexual behavior. Homosexuality has been prevalent throughout the Indian subcontinent throughout history, and homosexuals were not necessarily considered inferior in any way until the 18th century, during British colonial rule.

In a series of 14th-century Bengali narratives, two women have a loving sexual relationship, after which one becomes pregnant.

Rasakhan, a Bhakti poet, is said to have loved a beautiful boy until he was told that if he loved Krishna with the same fervor, he would be liberated. So he changed his love from boy to god, but his previous, homoerotic love was never punished.

[5]The Chandela dynasty built the temple complex in Khajuraho, Madhya Pradesh's central state, between 950 and 1050. The erotic sculptures in the temple depict homosexuality vividly. Similar temple art can be found in the 13th-century Sun Temple in Konark, Orissa, and Buddhist monastic caves at Ajanta and Ellora, both in the western state of Maharashtra.

6In16th century, Akbar questioned Madho Lal Hussain , who added his Hindu lover's name to his own identity, for drinking wine but not about his attraction to males. Madho Lal was buried alongside Shah Hussain in Lahore, as was Kamali, the companion of the 16th century Sufi-poet Jamali in Delhi. There is a true story about Maulvi Mukarram Baksh, an 18th-century poet, who died and his male friend, Mukarram, observed the mourning period, or iddat, which is usually performed by a widow. Colonialism instilled in us a deep homophobia, the symbol of which is Section 377.


Homosexuality in society:

Many people believe that homosexuality is a sin that should be avoided. When the concept of homosexuality enters the picture, the behavior of people changes. Some see it as a destroyer of moral values, religion, and cultural beliefs, while others see it as an abnormal act that is not natural, but rather an unnatural offense. People have a negative conscience that homosexuality is associated with an increased incidence of violence, sexually transmitted diseases, and drug use.

Some people believe that homosexuality is a gift of westernization and many of them also deny their existence.

People believe that homosexual behavior threatens traditional family values. This kind of gender orthodoxy harms transgender people, who are routinely denied higher education, employment, fired from their jobs, denied housing and public accommodations in hotels and restaurants, and even harassed, beaten, and murdered because of their gender nonconformity.

LGBT+ Pride 2021 Global Survey results were published by international research firm Ipsos between April 23 and May 7, 20217. Ipsos performed the poll as a 27 market survey using interviews with a sample of 500 people in India on its global advisor platform. According to the research, 3 percent of Indians (including gay and lesbian) identify as homosexual, 9 percent as bisexual, 1 percent as pansexual, and 2 percent as asexual.

Indian Judiciary on LGBTQ in recent years :

In Naz Foundation v. Govt. of NCT of Delhi[8], the Delhi High Court ruled that Section 377 of the Indian Penal Code was unconstitutional in terms of restrictions on homosexual activity. The Court applied a broad interpretation to the term "sex," including biological sex as well as sexual orientation. This effectively meant that any law that targeted homosexuals would be declared null and void.

However, in Suresh Kumar Koushal v. Naz Foundation[9], this case was later overturned. The Supreme Court stated that the role of the legislature in reforming the law was that of the legislature and that the judiciary could not overturn specific provisions of the law. The bench, however, only commented on the High Court's ability to strike down the law; they did not call into question the Delhi High Court's decision that Section 377 was unconstitutional.

The judiciary has acknowledged, at least tacitly, that marginalizing same-sex couples would violate their fundamental rights. No same-sex marriage would be safe from persecution until such laws are overturned or repealed.

On September 6, 2018, in the landmark judgment of Navtej Singh Johar vs. Union of India a five-judge constitutional bench of the Supreme Court of India struck down those provisions of a 162-year-old colonial statute (Section 377 of the Indian Penal Code, 1860) that criminalized private and consensual same-sex activity between adults, one of the judges remarked: “Sexual orientation of a person is an essential attribute of privacy…The right to privacy is broad-based and pervasive under our Constitutional scheme, and encompasses decisional autonomy, to cover intimate/personal decisions and preserves the sanctity of the private sphere of an individual.”


Arguments Made by Critics of Same-Sex Marriage:

● Some say that it's a religious matter, that God made man and woman for reproduction that same-sex marriages are unnatural and against the law of nature.

● It's argued that there`s no such thing as “attraction towards same-sex” and that people make this up in their head for their satisfaction which should not be legalized.

● Some say that marriage and male-female partnership are central to the culture. Civilization's structure was designed to be preserved. This is a violation of the land's rules, which have been in place for thousands of years and are based on the commandments.

● The critics also say that this is not the culture of India and that the youth is only getting influenced by western culture.


Arguments by the supporters of Same-sex marriage:

● Same-sex marriage supporters argue that prohibiting gay and lesbian couples from marrying is inherently discriminatory and thus violates the right to equality.

● The same sex union has no effect on anyone. The claim that heterosexual marriage in any form is harmful is delusory; no one's union is harmed by anyone else, and the legitimacy of a person's right to marry is not based on the rejection of anyone else. No victims of same-sex marriage legislation have ever been reported.

● The Supreme Court has repeatedly recognized the right to marry someone of one's own choice as a fundamental right under Article 21.[10]


Conclusion:

In India, same-sex marriages are not expressly prohibited; however, there is no law that makes it possible to marry without ambiguity. There have been instances of same-sex marriages taking place in India, though they are not officially recognized by the Indian government. Homosxuality is not an offense, it's just a way to find love.

Many religious scholars say that the scriptures don't condemn these relationships. Post-colonial changes in how society perceives culture have resulted in ignorance of this knowledge, leading to people declaring such relationships to be foreign and anti-Indian culture. The idea that homosexuality is contrary to nature is absurd and homophobic. Orthodox people continued to use the same old provisions. I have concluded that there are no explicit restrictions or bans on same-sex marriages in India. There are, however, no legal precedents that accept Same-Sex marriages. To make progress towards human rights, sex marriages should be legalized.


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1. prohibited or restricted by social custom.

2. https://timesofindia.indiatimes.com/blogs/voices/marriage-a-sacred-bond/

3. https://www.scobserver.in/cases/navtej-singh-johar-v-union-of-india-constitutionality-of-section-377-ipc-b ackground/

4. https://www.legalserviceindia.com/legal/article-8025-analysis-same-sex-marriage-in-india.html

5.https://web.archive.org/web/20140407080611/http://archive.tehelka.com/story_main40.asp?filename=Ne 181008indian_traditions.asp

6. https://www.bbc.com/news/world-asia-india-46620242

7.https://en.wikipedia.org/wiki/Homosexuality_in_India#:~:text=The%20report%20shows%20that%203,and %202%25%20identify%20as%20asexual.

8. Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277 (Delhi High Court 2009).

9. https://indiankanoon.org/doc/58730926/

10. https://www.careerlauncher.com/upsc/article-21/



This article is written by Divya Moolchandani of Classic College of Law, Bareilly.

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