http://www.wowvownow.com/gay-marriage-rights-articles/
Same Sex Marriage-time for Legal Recognition
Why is “unconventional” eroticism looked down upon? Why do most people simply dismiss the view that it is possible for a person to be loyally happy with another of the same gender? Well, I am of the view that one may live happily ever after with another of the same gender.
The term ‘gay’ in common parlance is used to refer to homosexuals of both genders, in this article too, it has been used in a general manner. Homosexuality is about much more than secrets and sex, it is also about happiness, preference and living and making lives together. Today, with a rising gay population in India we really need to re-think the legal structure in this realm. The contention is not as simple as merely accepting gay unions, but also giving such a union some sort of a legal ratification. We know that if a male desires to be with a female, there are no legal restrictions imposed against their marital union, then why should a male who would rather be with another male be denied of such rights? The Preamble as prefixed before the Constitution of India shouts out “Liberty of thought, expression , belief, faith and worship; Equality of status and of opportunity..”. What is the “expression”, which is being talked of? Is love not a form of expression? Where is the “equality”, if gay men and women are being denied of their rights? Antagonists of gay marriages say that they want to shield the society from becoming morally unravelled. However, I firmly believe that it is purely founded on chauvinism and prejudice, which is certainly neither moral nor what this country stands for. ” Justice, Liberty, Equality and Fraternity for all” means that everyone should be treated equally. The same “immoral” argument was also used to defy inter-racial marriages. But things have changed; so much so that such marriages are looked up to. It shows that with time, an orthodox society does rip off the straight jacket it has been wearing for aeons. In fact, a large section of the legal fraternity feels that it is the democratic right of people to choose their partners and the state should not interfere. In Baehr v. Lewin, adjudicated by the Supreme Court of Hawaii, it was held that, failure to grant marriage licences to same sex couples was sex discrimination. In a research by the Yale historian John Boswell in the book, ‘Same-Sex Unions in Premodern Europe’, explores the historical background of homosexual marriages. His studies exposed that homosexual marriage rites have been legally sanctioned and religiously upheld for over 3,000 years in ancient African, Asian, Egyptian, Greek, Mesopotamian, Native American and Roman cultures. What is important is that the social acceptance of same-gender relationships did not gain widespread condemnation until the 13th century, when religious orders stepped in and declared them immoral (Dorrell & Legal Marriage Court Cases, 1994,1996). This proves again the play of an unreasonable religious sect, which got things done its own way, instead of looking at the sentiments and desires of people. So there should technically be no legal censure.
We no longer live in a world where a marital union is merely a portal for procreation of children; conversely I would submit that a marital union symbolises life long companionship and not procreation of children. In this relationship that is initiated from a desire to simply be with someone, does it really matter if both the ends are the same? Really, NOT. My argument is that had reproduction been the sole purpose of marriages, then in the same list of “Those people who shan’t be granted marital rights are…” way too many people would be included, not solely the gay. Those women who have reached menopause and are biologically incapable of conceiving, too shouldn’t be allowed to get married. There are numerous old single men and women who probably never got married or were divorced or are widowers ( or widows as the case may be) who marry only for companionship. Perhaps, out of the fear of dying alone, they get into a relationship. They don’t procreate. So then if we do live in a country whose foundation is based on equality and if our government isn’t a hypocrite, then either these old people too should be stopped from getting married or the gay community should be treated with respect and equality and be given the right to marry whomever.
If we scan through the Hindu Marriage Act 1955, we’d find a provision for nullity of a marriage on grounds of impotency, section 12 1(a), but there are no laws that would lead to dissolution of a marriage on grounds of infertility or sterility. Infertile couples have no children, yet their marriage remains intact. If the elderly and the sterile cannot be denied the right to marry because of a traditional link between marriage and procreation, neither can lesbian or gay couples be denied the right for the same reason. All these queries tantamount to one question, why are then same sex unions prohibited? Analysing this situation in the light of the “Lex of the Land”, I would say that the legislature has already shown enough hypocrisy by inserting various terms in the Constitution and not really abiding by it, the least they can do now is scrap the only section – Section 377, Indian Penal Code, 1860 [hereafter, referred as the ‘Act’ ] – that goes against the foundation of such a union. Even if this section is not scrapped, it should not negate homosexuality. It should be used against man and beast not man and man. We all have read in our history books that we were a part of a society, where a black could not legally marry a white, a Kshatriya could not marry a Shudra, but laws were changed, echoing equality, so as to incorporate the possibility of such a matrimony.
Law is logic, and under all circumstances it should reflect the need of the contemporary world. As anything, law too becomes redundant with time and it needs to be moulded to suit the need of the hour. Gay matrimony finds itself placed awkwardly in a combat zone, where the liberals meet head on with the conservatives. The adversaries of the liberal view attack such a union by saying that this form of a union is grossly immoral and shatters religious fundamentals. To this view, I would pose a question, in India where marriage is a sacrament and is supposed to bring two people together for eternity and where the mere thought of separation would be a sin, how then under such circumstances have the laws of divorce emerged? Because it was realised by some pragmatic people that a simple sacrament may not lead to a harmonious relationship; lo and behold we have the laws of divorce. So this so-called in-perpetuity pious relationship could be murdered with a lethal injection called ‘divorce’. When such a provision was accepted as a part of the laws of this bucolic and traditional land then why can’t laws be instituted for allowing same-sex marriages?
The creators of the common law system, which we follow, have themselves included provisions that ratify same sex unions. Such unions have not been named as marriage but have been treated as a civil union. The Civil Partnership Act, 2004, is in its last stage before becoming a part of the law of the land. Under this act, Civil partnerships are available only to same-sex couples. These couples may register their partnership without making it mandatory for them to live together forever. There is a standard procedure for dissolving such partnerships too. Partnerships will entitle same-sex couples to avail assorted rights, such as property rights as well as responsibility for reasonable maintenance of one’s partner and their children, tenancy rights, full life insurance recognition, and visiting rights in hospitals.
The Common law system of the United Kingdom, which all its erstwhile colonies follow till date, needs to be given a face lift. The Section 377 of the Act, the heading of which itself is absurd, begins as “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal…”. I would like to expand on the italicised words. Natural would mean, of nature and unnatural would be against nature. It has been proved on more than one occasions that many species of the animal kingdom display acts of homosexuality, then how can we humans yet another specie and a part of this animal kingdom reject the idea of homosexual behaviour. As proved by James Owen from the National Geographic, animals including beetles, sheep, dolphins, orangutans exhibit great ‘love’ for the same gender. Such ‘love’ in homosapien sense would literally mean sex. Therefore, in my opinion, rejecting such a view is unnatural and an absolute insult to mother nature. A prudent perusal of the explanation to the section purports that the section does not cover within its ambit, sexual intercourse between two women. This would simply mean that two women connubially cohabiting cannot be against public policy. Therefore there actually is nothing in the Indian law to prevent two women from being bond in holy matrimony. The ambiguity reflected in this section and the section itself has been thoroughly criticised by human rights activists as it goes against the rights of an adult to freely spend his or her life with the person he or she desires. Gay couples are deprived of significant rights when they are not allowed to marry, and this results in injustices. The arguments against the legalization of same-sex marriages do not merit the legal support of the state, since the state’s job is not to promote popular morality or opinion, but the rights of its citizens. The aim of our government, right from its commencement, has been to preserve of the rights of its citizens. The government simply needs to protect the rights of “We, the people..”, including those who are gay. It must not support the illogical bigotry of the population, as it is quite evidently doing in this case. It is vital to take into account the desire of gays and lesbians, to allow them to enter into relationships with people they love and also have their relationships approved by family, friends and most importantly the law.
Marriage is society’s most basic institution. To veto a group of people from marrying would be deprivation. Not so long ago in America, a wedding between a black and a white was illicit, and no one could claim that this was a trivial disenfranchisement… well we no longer live in that society, then why should we stop the entry of something which is proven natural. I firmly believe recognising gay marriages will alleviate the invisibility and illicitness of gay relationships, which has been the norm so far.
Laws need to be upgraded in light of the dynamism of the world. If laws were not amended, then the widows in our country would still be burnt alive along with their dead husbands. Had the Hindu Marriage Act not been passed in 1955, unhappy Hindu couples would be forced to live together, which is a mental and physical torture. Hindu Laws, which have been based on religious scriptures and are essentially sacramental in nature, did break out of their rigid framework and hug the laws of divorce. This simply proves that even though certain laws may be initiated on the foundations of religion, it cannot survive in such an ever changing world without being altered a propos the needs of the contemporary world. Water which is constantly flowing and the quantity of which is continuously increasing cannot be withheld forever in a small container such as a bowl. Along with the increasing quantity of water it is essential that the container be changed to a bigger one, instead of making an attempt to clog the flow of water. Water is the metaphor used for people and container or the bowl is an allegory for the Laws, Customs, Society etc. All I am trying to say is that, with the rising number of Gays and Lesbians it would not be wise to suppress them. Such would be a despicably despotic measure. And our history books would vouch that tyrannical and thoughtless rules based on the whims and fancies of a specific group do not work for long, instead, those oppressed need to be given a forum or platform where they can raise their voices and be heard.
About the Author
WORK EXPERIENCE
Käden Boriss- Corporate and Commercial Lawyers, Gurgaon
Legal Intern/Associate (December, 2005 – present)
• Attend client meetings and take instructions accordingly. Drafting, reviewing and completion of contracts/agreements, preparing legal opinions and legal notes, Drafting of Legal Notices etc.
• Research based due diligence work and drafting due diligence reports
• Drafting proposals for business restructuring and drafting relevant underlying documents
• Handling all Trademark and Copyright related work for the firm
• Drafting speeches for senior lawyers and judges attending conferences sponsored by the firm, assisting in writing articles for journals/magazines and websites.
• Assistant editor of the Kaden Boriss monthly newsletter.
• Maintaining the firm’s web page
• Visited Government Ministries on behalf of Firm
• Handled office administration including the maintenance of the Library
• Overseeing work and supervision of legal trainees
South Asian Association for Regional Cooperation in Law (SAARCLAW), Gurgaon
Coordinator (February 2005 – October 2005)
• Drafting of Minutes of SAARCLAW Executive Council Meetings, Notices of meetings, drafting and submitting Annual Activity reports (to SAARC Secretariat in Nepal)
• Organizing SAARCLAW Conferences and other events under SAARCLAW banner, such as moot courts.
• Assisting the Secretary General of SAARCLAW in various other projects and other SAARCLAW endeavors
K & A Partners, Delhi
Legal Intern ( 4th October, 2004 – 3rd December, 2004)
Responsible for coordinating documentation for applications of Trademarks and Copyrights
MISCELLANEOUS / RELATED EXPERIENCE
2007
• Organized and participated in the Roundtable on “Women in Law in India: A Catalyst for Social, Legal and Economic Change” held on March 26th-27th, 2007 at The Claridges Hotel, New Delhi. Oganized in association with Women in Law – United Kingdom and SAARCLAW (South Asian Association for Regional Cooperation in Law)
• Prepared the presentation literature for the “Indian Airports Development Conference 2007”, 19-20 February 2007
2005-2006
• Attended the seminar on “Problems faced by Sex workers in India” held on 2nd March, 2006, at India Habitat Centre, New Delhi.
• Participated in the International Seminar on “International Law and Jurisdiction in the Era of Globalisation” held on 23rd to 25th February, 2006 at the Claridges Hotel, New Delhi. It was organized by Freidrich Ebert Stiftung and Kaden Boriss Consulting.
• Organized and participated in the Regional Roundtable on “International Crime: Its Diverse Impact on the Development of Asian Countries” held on 26th to 28th October, 2005 at the Grand Hotel, New Delhi. It was organized by Freidrich Ebert Stiftug and South Asian Association for Regional Cooperation in law (SAARCLAW)
2003 – 2004
• Editorial board member of Delhi Law Review (Journal published by Faculty of Law, University of Delhi)
• Compiled a report on the seminar organized by Justice Sunanda Bhandare Foundation on “Women and Employment”.
• Presented a Case Study based presentation on Indo-Australian trade relations at Foreign Trade Development Center.
• Elected as the Executive member and Editorial board member of Economics society of University of Dehli.
2002 – 2003
• Wrote an economic report on Daawar shoe manufacturing and exporting unit, situated in the outskirts of Agra, as a part of Industrial trip of B.A. (H) 3rd year.
2001 – 2002
• Wrote a report on the importance of development of the handmade paper industry situated in Sanganer (Jaipur) as Industrial trip report for B.A. (H) 2nd year.
• Wrote report on TRIPS and Doha round of WTO for International Trade presentation.
COMPUTER EXPERIENCE
Research: Internet, Manupatra, Lexis Nexis
Software Proficiency: Word, Power Point, Office Publisher, Excel and various internet applications, including Internet Explorer, Netscape, Mozilla Firefox.
EDUCATION
University of Delhi, Delhi, India
• Bachelor of Law (LLB) from Law Centre II, Faculty of Law (2004-2007)
• Bachelor of Arts with Honors in Business Economics from College of Vocational Studies (2001-2004)
Indian Institute of Human Rights
• Post Graduate Diploma in Human Rights (through proximate learning) (2005-2007)
EXTRA CURRICULAR ACTIVITIES
• Active participant in sports events in school and college.
• Participated in the activities of NGOs like HelpAge India, Help care society and Deepalaya.
• Member of Dramatics society in college and participated in plays held in BITS, Pillani and Kamani auditorium, Delhi.
• Languages known :
English, Hindi and Bengali (Fluent)
Spanish (Basic)
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