Recognition of same-sex unions in India

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Legal status of same-sex unions
Marriage
Performed
Recognized
  1. Not performed in Aruba, Curaçao and Sint Maarten
  2. Neither performed nor recognized in Niue, Tokelau and the Cook Islands
  3. Neither performed nor recognized in Northern Ireland and in several dependencies: Jersey, Sark and five of the fourteen overseas territories
  4. Neither performed nor recognized in American Samoa and many tribal jurisdictions with the exception of federal recognition benefits
  5. For some purposes, from all jurisdictions where same-sex marriage is legal
  6. When performed in Mexican states that have legalized same-sex marriage
  7. When performed in the Netherlands proper
  8. Registration schemes open in all jurisdictions except Hualien County, Penghu County, Taitung County and Yunlin County

* Not yet in effect

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India does not recognise same-sex marriage nor civil unions. Additionally, it does not possess a unified marriage law. Every Indian citizen has the right to choose which civil code will apply to them based on their community or religion. Although marriage is legislated at the federal level, the existence of multiple marriage laws complicates the issue. The following acts cover India's marriage laws:

None of these codified marriage acts explicitly defines marriage as between a man and a woman. Neither do these acts explicitly prohibit same-sex unions.[1] However, the laws have "heteronormative underpinnings" and have been interpreted not to recognise same-sex unions.

The state of Goa is the only Indian state to have a unified marriage law. Every citizen is bound to the same law, regardless of their religion.[2] However, Goa's Uniform Civil Code explicitly defines marriage as being between members of the opposite sex.

As of 2017, a draft of a Uniform Civil Code that would legalise same-sex marriage nationwide has been proposed.[3]

History[edit]

Since 1987, when the national press reported the story of two policewomen who married each other by Hindu rites in central India,[4] the press has reported many same-sex marriages, all over the country, mostly between lower middle-class young women in small towns and rural areas, who have no contact with any gay movement. Family reactions range from support to disapproval to violent persecution. While police generally harass such couples, Indian courts have uniformly upheld their right, as adults, to live with whomever they wish. In recent years, some of these couples have appeared on television as well. There have also been numerous joint suicides by same-sex couples, mostly female (male-female couples also resort to suicide or to elopement and religious marriage when their families oppose their unions).

In "Same-Sex Love in India: Readings from Literature and History", author Ruth Vanita analyses dozens of such marriages and suicides that have taken place over the last three decades, and explores their legal, religious and historical aspects. She argues that many of the marriages can arguably be considered legally valid, as under the Hindu Marriage Act, 1955, any marriage between two Hindus performed according to the customs prevalent in the community of one of the two partners is legally valid. No license is required to marry, and most heterosexual Hindu marriages in India today are performed by religious rites alone, without a marriage license and are never registered with the state. State recognition is not sought by most couples because it confers few benefits. Most couples seek the validation of family and community, and several female couples in rural areas and small towns have received this validation.[5]

There have also been a couple of high-profile celebrity same-sex civil partnerships, such as the civil union of designer Wendell Rodricks with his French partner Jerome Marrel, conducted under French law in Goa.

Legalisation efforts[edit]

Traditionally, India identifies same-sex unions to be a trans-rooted alien culture-bound syndrome and associated social disorder. Hence LGBT groups are working in the backgrounds for a step by step approach that is required to tackle all the problems and rights of the LGBT citizens of India. The current focus of groups is to repeal Section 377 of the Indian Penal Code, equality and non-discrimination. Nevertheless, LGBT rights agencies are optimistic and are working on winning the right to same-sex marriage, inspired by the financial support and progress achieved in several western countries. In April 2014, Medha Patkar of the Aam Aadmi Party stated that her party supports same-sex marriage.[6]

A single case of legal recognition of a same-sex marriage was granted by the Punjab and Haryana High Court in 2011.[7]

Uniform Civil Code[edit]

As of 2017, a draft of a Uniform Civil Code that would legalise same-sex marriage has been proposed.[3] Under the proposed code, marriage is defined as

"the legal union as prescribed under this Act of a man with a woman, a man with another man, a woman with another woman, a transgender with another transgender or a transgender with a man or a woman".

A partnership is similarly defined as the living together of a man with a woman, a man with another man, a woman with another woman, a transgender with another transgender or a transgender with a man or a woman. It also provides that any two persons who have been in a partnership for more than two years shall have the same rights and obligations as married couples. It also mandates the registration of all marriages. In addition, the draft states that "all married couple and couples in a partnership are entitled to adopt a child. The sexual orientation of the married couple or the partners are not to be a bar to their right to adoption. Non-heterosexual couples will be equally entitled to adopt a child." Finally, the code provides for the repeal of all of India's marriage-related laws (the Hindu Marriage Act, the Hindu Succession Act, the Muslim Personal Law Application Act, the Dissolution of Marriage Act, the Indian Christian Marriage Act and the Parsi Marriage Act, among others)

The draft has been submitted to the Law Commission of India. Whether India should have a Uniform Civil Code is a matter of ongoing political debate in India.[8][9] The Bharatiya Janata Party supports it, while the Indian National Congress and the All India Muslim Personal Law Board oppose it.[10]

Public opinion[edit]

Should same-sex marriage be legal? (2016)[11]

  Yes (35%)
  Against (35%)
  Don't know (30%)

According to a 2015 Ipsos poll, 29% of Indians support same-sex marriage, while 18% support other forms of legal recognition.[12] Among the 23 countries polled, India had the fifth lowest support for same-sex marriage, in front of only South Korea (27%), Turkey (27%), Poland (21%) and Russia (11%).

According to a 2016 poll by the International Lesbian, Gay, Bisexual, Trans and Intersex Association, 35% of Indian people were in favour of legalising same-sex marriage, while 35% were opposed to its legalisation.[11] A survey by the Varkey Foundation found that support for same-sex marriage was higher among 18 to 21-year-olds at 53%.[13]

See also[edit]

References[edit]