Although most marriage laws utilise gender-neutral terminology, marriage is a prevalent cultural bond that is exclusively known as being between males and females. While there have only recently been numerous cases of homosexual weddings being acceptable, culture is gradually becoming indulgent. This reform is also reflected in Navtej Singh vs Union of India, where the Supreme Court overturned section 377 of the IPC.

However, several states have maintained their constitutional restrictions on homosexual marriages despite numerous protests from individuals and groups who argue that same-sex marriage must be permitted.

Meaning: Same-Sex Marriage

Same-sex marriage (SSM) is a recent development that creates a new type of family. It wasn’t legally recognized in the modern era until the 21st century, when more countries began allowing same-sex couples to marry. In the latter half of the 20th century, a movement grew to recognize marriage as a basic human right for everyone, including same-sex couples (Moumneh, 2009; Human et al., 2009; Adam et al., 1999).

This change is significant because, for most of the 20th century, same-sex marriage was considered impossible and was seen by almost everyone as contradictory.

SSM has sparked conflict, controversy, and opposition in many countries, especially in the United States, due to successful legal challenges and related social and legislative changes (Masci, 2009; Angus-Reid, 2009; Eskridge & Spedale, 2006).

The legal recognition of same-sex marriage is one of today’s most debated social, political, and legal issues. Despite strong opinions on both sides, many people still don’t fully understand same-sex unions, with public perceptions often influenced by misinformation and misconceptions.

What Indian People Think

A Pew Research Center study that surveyed individuals in 24 countries found that 53% of respondents in India either “somewhat favor” or “strongly favor” same-sex marriage. Notably, the percentage of those who “strongly” support same-sex marriage was slightly higher than those who “somewhat” support it (25%).

In India, same-sex marriages are not legally recognized, and LGBT couples can only access certain rights if they cohabit.

Recent Developments

Two same-sex couples petitioned the Supreme Court on November 14, 2022, requesting that same-sex marriages be recognised as legal in India. The Special Marriage Act of 1954 was the subject of the petitions, which focused on its constitutionality. Supriyo Chakraborty and Abhay Dang submitted the initial petition. Parth Phiroze Merhotra and Uday Raj Anand filed a second petition.

The petitioners contend that only “male” and “female” marriages are recognised by section 4(c) of the Act. Denying them marriage privileges, including adoption, surrogacy, employment, and retirement benefits, discriminates against same-sex couples.

The petitioners requested that section 4(c) of the Special Marriage Act be ruled unconstitutional by the court.

The request was linked to several other petitions that question other personal laws. The Hindu Marriage Act of 1955 and the Foreign Marriage Act of 1969 were two of the laws that were challenged.

The petitioners contended that denying same-sex marriage infringed their rights to dignity, equality, and freedom of expression. The cases NALSA vs Union of India (2014) and Navtej Singh Johar vs Union of India (2018), which validated non-binary gender identities and provided equal rights to homosexual people, were cited by these people.

Five Landmark Judgements Related to IPC

1.        Palani Goundan vs Unknown (1919)

In Palani Goundan’s case, the husband hit his wife on the head with a ploughshare, causing her to lose consciousness. Thinking she was dead, he tried to make it look like a suicide by hanging her to avoid being blamed for murder. She actually died from the strangulation. The Sessions Court held the accused guilty of murder under section 300 of the Indian Penal Code. However, on appeal, the Madras High Court ruled that the accused was not guilty of murder or culpable homicide on the ground ‘actus non facit reum nisi mens sit rea,’ which means a man is not guilty of a crime unless his mind is equally guilty.

There was no mens rea to kill at the moment the accused hit his wife. And, at the time of hanging, he already believed her to be dead, and thus, there can be no mens rea to kill. Therefore, the accused was convicted for the offence of grievous hurt under section 326 of the IPC and attempting to create false evidence under section 201 of the IPC and not for murder.

2. Mobarik Ali Ahmed vs State of Bombay (AIR 1957)

The complainant, Louis Anton Cornea, was a businessman who served as the director of a company in Goa that conducted import and export operations under the name Colonial Limitada. Due to the scarcity of rice in Goa, Louis wanted to import rice and got in contact with Jaswalla.

Mr Jasawalla was a commission agent at Universal Supply Corporation in Bombay. He introduced Louis to Mobarik Ali Ahmed. Mobarik was a businessman in Atlas Industrial and Trading Corporation and also in Ifthiar Ahmed & Co.

Mobarik and Louis entered into a contract via telephone, telegram and letters. Louis agreed to buy 1200 tons of rice at pound 51 per ton, which was to be shipped from Karachi to Goa. 25% of the total amount was paid in advance. Later, the quantity of rice was increased to 2000 tons with the payment of 50% as advance. Louis wanted a refund due to the delay in delivery, which Mobarik denied, stating that he did not receive any payment.

. Tuka Ram And Anr vs State Of Maharashtra (AIR 1979)

This case is also known as the Mathura rape case. In this case, a 14-16 years old girl named Mathura was raped at the police station. She was dragged to the washroom and raped by a police constable named Ganpat. After him, another constable, Tuka Ram, tried to rape her, but he did not succeed because he was drunk.

The court held that the accused, Ganpat and Tuka Ram, were not guilty based on the following reasons:

• No marks of injury on Mathura’s body 
• She changed her statements several times, making them untrustworthy.
• She should have refused to stay at the police station when the constable, Ganpat, asked her.

This case brought the Criminal Law (Second Amendment) Act, 1983, into force, thereby amending section 114A of the Indian Evidence Act and section 376 of the Indian Penal Code. The amended section 114A of the law of evidence states that when a woman is raped and she says that she did not consent to it, it  would be presumed that there was no consent of her in such an act.

Section 376 of the IPC was amended to increase the punishment for custodial rape to not less than seven years, along with the burden of proof being shifted to the offender if sexual intercourse is established.

4. Naeem Khan @ Guddu vs State (AIR 2003)

In this case, a girl aged 16 years, Laxmi, was victimised by an acid attack. It was alleged that a boy named Naeem Khan, along with a woman named Rekha, threw acid on the victim because she refused to marry Naeem. Both the accused were convicted under section 307 and section 120B of the Indian Penal Code.

As a result of this case, several changes were made to CrPC and IPC. Sections 326A and 326B, dealing with the acid attack, were added to IPC. And section 357A was added to CrPC, thereby instructing the hospitals to provide free medical treatment. The victim compensation scheme was also announced in all the states and union territories.

Further, an order for the compensation of three lakh rupees to acid attack victims was passed by the Supreme Court. Meanwhile, the ban on the sale of acid was imposed by the state government.

5. Navtej Singh Johar & Ors. Vs Union of India (AIR 2013)

In this case, the constitutionality of section 377 of the Indian Penal Code was challenged by a dancer of the LGBTQ community, Navtej. Sexual activity between consenting adults who are homosexual or transgender was illegal under section 377 of the Indian Penal Code. It was contended by the petitioner that section 377 of the IPC is violative of Articles 14, 15, 19 and 21 of the Indian Constitution, which provides the right to equality, prohibition of discrimination, freedom of expression, and right to live, respectively.

The court declared section 377 of the Indian Penal Code unconstitutional. Protection of equal laws and equal treatment with dignity in society was provided to the LGBTQ community. Hence, homosexuality was declared legal in India after this .

Conclusion

The Supreme Court’s 2018 ruling in Navtej Singh Johar vs Union of India invalidated Section 377 of the Indian Penal Code, decriminalizing homosexuality in India. This marked a major milestone for the LGBTQ+ community, granting them the right to love and intimacy without fear of punishment

Khushboo Handa (legal intern)