INTRODUCTION

In March 2023, In the Supreme Court of India, the highest judicial body, a five-judge constitution bench sat down to decide the legal question of marriage equality in India. The hearing revolved around the legal status of the marriages of a person of the LGBTQIA+ community which also includes same-sex marriages. This case was a landmark judgment in making.  Unfortunately, after a fierce battle of arguments, the honorable Apex court reserved the judgment for a later date. We still wait for the decision. Although this case is about the whole LGBTQIA+ community, there is no difference for same-sex couples. After all the first two letters of this extended abbreviation denote them. In the beginning, there were only four letters in this abbreviation. LGBT. But the subject matter of our discussion in this article is just the first two letters. L stands for Lesbian while G stands for Gay. The term lesbian finds its origin to the poet Sappho of Lesbos1 or Lesvos from 600 B.C. who professed her love and attraction for women in her poems. The term gay originally meant Carefree, Cheerful, and, Bright and Showy. These two words gradually evolved to be used in the context we today do.

GAYS AND LESBIANS.WHAT IS A SAME-SEX RELATIONSHIP?

‘Gay’ and “Lesbian” is what today’s society calls homosexuals. The people who are sexually or romantically attracted to the people of their own gender2. i.e., A man is gay if he is attracted to or keeps a sexual or romantic relationship with another man. Similarly, A lesbian is a woman who is sexually or romantically attracted to another woman. In Indian society where Live-in Relationships or Sex before marriage is not acceptable at large, Gay or Lesbian relationship is definitely a taboo thing. Something which is not accepted socially and concerns to a very minute part of the population, we cannot expect major laws on that topic. Talking about the physical aspect of homosexual relationships, the act of sex between two women doesn’t involve any technicalities but that between two men includes sodomy. Sodomy is considered as unnatural or against the order of nature. Something which was punishable under Section 377 of the Indian Penal Code.3

SECTION 377.

Section 377 of the Indian Penal Code, 1860 was introduced by the Britishers back in 1861. This act criminalised homosexuality in British-colonised India. The provision remained in force after Independence and provided punishment with imprisonment for lifeor with imprisonment of either description for a term which may extend to ten years with fine to those people who voluntarily engaged in carnal intercourse against the order of nature with any, man, women or animal. This provision thus made the Gay relationship illegal to an extent. Though the act didn’t explicitly prohibit two men from loving each other, it does prohibit the possible act of sex between them.

THE DECRIMILISATION.

 This section which criminalized sodomy remained such till 2018. Back in 2001, an NGO  Naz Foundation, and AIDS BedhbhavVirodhAndolan filed petitions against this section both of which were quashed by the court. Again in 2009, Naz Foundation moved forward, in the case of the Naz Foundation vs the Government of NCT, Delhi the Delhi high court decriminalized the consensual act of sex between two adults of the same gender, giving some air to breathe for Gay people. The High Court held the act violative of Articles 14, 15, and 21 of the Indian Constitution. But this judgment was overturned by the Supreme Court for being “legally unsustainable”. Even the review petition was quashed. But the LGBTQ activists continued their fight and in 2016 five separate petitions were filed in the Supreme Court challenging the constitutional validity of Section 377. These petitions were combined and heard by the constitution bench with the case name- Navtej Singh Johar vs. Union of India. Finally on 6th September 2018, the Constitution bench struck down section 377 to the extent that it criminalizes consensual acts within same-sex relationships. The section remains functional for such acts if done with minors, women or animals. Both the state and the opposition were in consensus with this judgement as none of them opposed it. And this way, Gay-relationship is not illegal any more. But that is the status of Same-sex marriage in India. It is not a crime , but neither it is accepted by society at large not it has any legal status.

THE MARRIAGE RIGHT

After the 2018 judgement, many pleas to legalise same-sex marriage were done to Supreme Court. Finally, the Supreme Court constituted 5 judge benches to hear the petitions in march 2023 after almost half a decade. The case is named Supriya Chakraborty &Anr. v Union of India4 and it is still pending. These petitions do not only argue that the non-recognition of same-sex marriage violates the rights to equality, freedom of expression and dignity, they also fight for social recognition, security and protection from discrimination. They also fight for rights to adoption, maintenance and all other rights that evolve out of a marriage.

THE SAME-SEX LIVE-IN-RELATIONSHIP.

Although same-sex marriages are not given any legal recognition in India, Supreme Court in 2022 through its landmark judgement in Deepika Singh versus Central Administrative Tribunal & Ors.5has allowed live-in relationships between same-sex couples. The Key issue of this case was not related to LGBTQ rights but the through the judgement of this case the Apex Court expanded the definition of 'family' in Indian law to include unmarried partnerships, queer relationships and single-parent families. Thus, giving recognition to same-sex live-in- relationships.

But that’s it, there is no central legislation concerning same-sex relationships in India.

CONCLUSION.

Getting legal recognition of a taboo thing is a long, hard and restless journey. The LGBTQ+ community has come a long way and still have a long way to go. The right they want is considered asa disease by many. However, where there is will there is a way. Currently, same-sex relationship is not illegal in India and Live-in relationships are recognised. Next topic is Same-sex Marriages. This is not only a modern agenda as it involves marriage which has been in India mostly a sacred ceremony from ancient times. Especially for Hindus. Even if same-sex marriage is legalised, adoption by those couples may not. Hence one can not predict the direction of the breeze. The arguments both from the supporters of same-sex marriages and the opposition are logical and right at their own place. The Wait is for Supreme Court’s decision.

REFERENCES

1Oxford English Dictionary, s.v. ‘‘lesbian.’’

2Oxford English Dictionary, s.v. ‘‘homosexual.’’

3 Indian Penal Code, Bare-Act, Universal Publication.

4W.P. (C) 1011/2022, SC

5Civil Appeal No 5308 of 2022, SC