Often today, we find people asking the synonymous question - ‘Is gay marriage in India legal or not?’
Well, this question in itself is a highly debatable topic. One needs to look into various factors before making gay marriage legal in India. Especially the laws affecting the LGBT community as of now.
Before telling details about whether gay marriage is legal in India or not, one needs to have an idea about:
the history of the LGBT community,
views on homosexuality, and
what gay marriage signifies.
While the answer to that still hangs by the thread because the Apex Court is still to decide. However, many wonder when can they triumphantly say - "This is the day when gay marriage became legal in India!"
It's important to mention here that making gay marriage in India legal would be a revolutionary step forward towards equality.
However, many people much await that day. Since then the nation will finally breathe freely by allowing everyone to 'come out the closet'!
It's also pertinent to know when and how the concept of gay marriage came into being. Here we'll be explaining its legal aspects.
Here in this blog, we'll help you take a closer look and dwelling together for answers. As to when, why and how will it be possible for making gay marriage legal in India.
We'll also be telling you all about the first legal gay marriage in India along with how other countries see gay marriage & in which countries has it been legalised.
Let's dive into the history of gay marriages and discuss as to whether gay marriages should be legalized in India and why.
Table of Contents:
Consult: Expert Civil Law Lawyers in India
What is the history surrounding Gay Marriages?
Over the years, many people have written various articles on gay marriage legal in India or not, since the topic has always been so sensitive. Also, there have been many ongoing debates making gay marriage legal in India.
History stands witness and proof to the longing of the LGBT Community in legalising gay marriage. Whereas various debates and discussions are on across the world.
Well, historically speaking, gay marriages date back to the Roman Empire. It's believed that the first emperor of Rome, Nero, had married to the same sex.
There are also journals which suggest that Nero was married to other males on different occasions.
Thus, one can see that the whole concept of gay marriage has had its roots from ancient times. Today even, many people try to understand the concept of gay marriage in legal terms.
The Concept of Gay Marriage
Gay marriage or same sex marriage is basically an alliance/marriage that takes place between two individuals having the same gender.
The whole concept of gay marriage hopes to establish marriage equality, which has actually differed and varied by jurisdiction.
It has come across through a whole legislative procedure of changes in court rulings including marriage laws.
The changes that are in discussion are based on the constitutional guarantees of recognition and equality which the existing marriage laws will allow.
As of 2019, gay marriage has gained a lot of recognition and legalisation in many countries. These include Australia, Denmark, Brazil, Norway, the Netherlands, etc.
Furthermore, Taiwan and Costa Rica are also going to legalise same-sex marriage.
It is pertinent to mention here that after conducting a study in the United States from the year 1999 to 2015, there was a significant reduction in the total rate of suicides after the introduction of same sex marriage.
The recognition of gay marriage is both a civil and human right. You can even say that the most prominent supporters of gay marriage are the Civil and Human Rights organisation.
What are the reasons to legalise Gay Marriage?
Now that we have an idea of what gay marriage is all about along with its origin and history. We can look into some of the main reasons and advantages associated with legalising gay marriages.
You must be wondering when was gay marriage first legalized.
In recent times the whole concept of legalising gay marriage has become an issue. Like every other topic or subject, there are oppressors and supporters.
The government by and large of many countries is one of the major oppressors.
As society is developing but one can see that making the arguments against same-sex marriage has many flaws. The benefits of legalizing gay marriage and the reasons to legalize gay marriage are:
A decrease in the divorce rates: First and foremost allowing same sex marriage will only lead to an increase in the marriage rates. This is because if there is permission for gays to marry, then the number of couples taking divorce will reduce. This will happen due to lesser issues regarding compatibility factor.
It does not affect the heterosexual community: There are a lot of people who have this mental block that by legalizing gay marriages, it will have some sort of negative impact on the heterosexual community. Logically speaking by making gay marriage legal in India, a positive impact will be seen amongst the heterosexual community.
To give Equal Rights: During the '50s, interracial marriages were considered forbidden. In recent times, however, modern society does have an understanding that this was an unfair law. In the case of making gay marriage legal in India, which is a problem of a similar nature, one will basically allow the freedom to choose his/her partner.
Accepting society: The first legal gay marriage in India has will surely bring a new change in the society, because it'll become more acceptable to the society because people will freely express their interest towards same-sex. This will help in avoiding social evils including bullying etc. and will help in making everybody feel welcome in society.
An Increase in the Rate of Adoption: Legalising gay marriage will also help in the increase of adoption rate because there are a whole lot of adoption agencies discriminating against the LGBT Community. This discrimination makes it complicated for a gay couple to create a family which in turn leaves out more kids as orphans.
Marriage is your Decision: A government cannot control who an individual decides to marry. So, when a government tries to control a gay marriage they are basically trying to decide who will marry whom. This is essentially wrong because marriage should be the sole decision of any couple.
Most Read: Court Marriage Procedure in India
Which are the first legalized countries where gay marriage is legal?
You must be wondering when gay marriage was first legalized along with the fact as to which part of the world was it first legalised in.
Here we will discuss the first 4 major countries that legalized gay marriage. The countries include:
The Netherlands: The first time gay marriage was legalized was in The Netherlands. It is the first country in the world to have taken a step towards breaking the old shackles of mindsets by legalizing same-sex marriage. There were gay rights organisations in this country which were active as early as the year 1980s. These groups had been demanding for the legal recognition of gay marriages. Due to their efforts, the Parliament in the year in 1995 decided to put up a special commission to discuss the said issue. The Commission in the year 1997 finally concluded that the definition in regards to civil marriages should have its amendments which shall now include same sex couples. There were many debates while drafting the marriage bill in the Parliament before finally passing in the Senate and in the House of Representatives on December 19th, 2000. The law came to function as on April 1st, 2001.
Belgium: The second country to legalise gay marriage is, Belgium on June 1st, 2003. The Bill for legalising gay marriages had the approval of 91 deputies out of 122 deputies in the Belgian Parliament. The legalisation of the bill took place after various debates and heated protests by the gay rights organisations in Belgium. This coupled with the rise and acceptance of same sex rights amongst the Belgian communities led to the passing of the Bill.
Spain: Spain as of July 2015 is celebrating its ten year anniversary on legalising gay marriage. After the Netherlands and Belgium, Spain is the third country to have legalised gay marriage at a national level. As early as 2004, there were attempts to legalise gay marriage in Spain. The Senate along with the Parliament passed out the law as of June 30th 2005 which later came into effect as on July 3rd, 2005. The first ever gay marriage took place on July 11th, 2005 in Spain.
Canada: in the year 1999 the Supreme Court based in Canada made it a possibility for gay couples to enjoy some of the legal and financial benefits in association with marriage. The real change, however, came in the month of June 2005. When the Parliament passed a Bill for amending the Civil Marriage Act provisions. This was to include and legalise same-sex marriage by passing the Bill by the Senate as on July 19th, 2005. After receiving royal assent as on July 20th, 2005, the Bill finally became active giving the gay community the opportunity to enjoy.
These are some of the major countries where gay marriages are legal, but making gay marriage legal in India seems more dreamy than ever.
Let's delve into the nitty-gritty of whether Indian people will be able to adopt this or not!
Whether Gay Marriage is Legal in India?
Finally, after discussing some of the major countries legalising gay marriages, let's take a look into whether gay marriage is legal in India. Especially after decriminalizing Section 377.
As far as India is concerned, there have been various debates and articles as to ‘Will Gay Marriage Ever be Legal in India?’
These kinds of questions have forced the citizens of India to think about bringing in new changes in society.
In such situations, where one still asks questions like - "Are gay marriages legal in India?" or "Should gay marriage be legal?", the LGBT community faces a lot of problems.
The LGBT community in India as of now still faces certain social and legal difficulties.
However, in the past decade, the same sex community has been able to gain much more tolerance in India especially when it comes to large cities.
Now, coming to the crux of the matter - are gays and lesbian’s marriage legal in India, the answer is in the negative.
However, there have been protests by people of India against the criminalisation of same sex marriage and demands for legalising gay marriage in India.
Due to this outrage, the main change towards the gay community came after the Supreme Court made alterations on Section 377 of the Indian Penal Code with regards to homosexuality.
Further Read: Right to Marry in India
How does the Supreme Court see it?
The Supreme Court has recently come to the conclusion of decriminalising homosexuality. Now having a homosexual relationship is not a crime.
However, this is a battle half won, as there have not yet been any civil rights which gay couples can enjoy.
Now when people ask - is gay marriage legal in India, well the answer to that may remain negative. However, after the recent Supreme Court’s judgement, people are still confused and asking - “Is gay marriage legal in India now?”
To clarify, homosexuality has been decriminalised but gay marriage has still not been approved by the apex court of India.
The Supreme Court consisting of five Judges made a declaration of the same by over-ruling its very own decision. This was taken in the year 2013 when Section 377 was still in play.
According to Chief Justice Misra, “We have to bid adieu to prejudices and empower all citizens.” The Judges also said, “Any discrimination on the basis of sexuality amounts to a violation of fundamental rights”.
Adding to that, “Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality.”