India People

Are same-sex marriages in India legal or not? Well, let’s say it’s complicated.

 “It’s two people that are in love with one another. What’s the issue?”, Janet Jackson once said.

Still Homosexuality is mostly a taboo subject in Indian civil society and for the government.Section 377 of the penal code makes sex with persons of the same gender punishable by law. On 2 July 2009, in Naz Foundation v Govt. of NCT of Delhi , the Delhi High Court held that provision to be unconstitutional with respect to sex between consenting adults, but the supreme court of india overturned that ruling on 11 December 2013, stating that the court was instead deferring to Indian legislators to provide the sought-after clarity. On 2 February 2016, however, the Supreme Court agreed to reconsider its judgment, stating it would refer petitions to abolish Section 377 to a five-member constitutional bench, which would conduct a comprehensive hearing of the issue.

Therefore it is a criminal offence for two consenting adult gay, bisexual and transgender persons to have sex in India. Lesbian women are not criminalized under Sec. 377 as it criminalizes only ‘penile non-vaginal sex’. However, lesbian women are frequently persecuted and prosecuted under false cases of kidnapping and/or theft offences, when partners elope. A gay, bisexual or trans person solemnizing a same-sex marriage in India may be interpreted as ‘intending’ to violate the law under Sec. 377, as ‘consummation of marriage’ by sexual relations is intrinsic to a marriage, as per both social and legal norms.

In 2015, noted LGBT activist Harish Iyer’s mother, Padma Iyer, approached many leading newspapers for the placement of the following advertisement:

The ad was a pretty straightforward one; it read “Seeking 25- 40, well-placed, animal-loving, vegetarian groom for my son (36, 5’11”) who works with an NGO, caste no bar (though Iyer preferred)”,

somehow it managed to offend a lot of people. While people should have been lauding Padma Iyer for being so progressive and open-minded, many went into immediate outrage-mode. There were the usual bouts of homophobia, accompanied by what Harish Iyer casually referred to as “intellectual masturbation”.
People went ahead to call Padma Iyer ‘casteist’ and ‘hypocritical’ and a few other colourful words, over the internet, that we cannot mention here. She also suffered an asthmatic attack. Rest assured, most of the comments weren’t tasteful. What was surprising was that even the gay community attacked the Iyers for this matrimonial ad, which led to Harish’s aforementioned observation.

“If we hadn’t added the Iyer preference to the ad, someone might have objected to the vegetarian clause. If your parents put a matrimonial ad for you, that says ‘Bengali preferred’, no one would object to that” said Harish.

And it is true. For their part, the ad did not enforce any kind of casteist beliefs or supremacy; it was just a simple matter of one’s preference.

As for the question of the legality of this particular ad, Harish explained that it isn’t illegal to up an ad like that. In fact, it isn’t even illegal to have a gay marriage. A gay marriage in India does not have any legal sanction. What is illegal is the act of participating in ‘unnatural sex’.

“Marriage is basically a contract that gives you certain rights; property rights, child custody rights amongst others. We (LGBT) don’t have all that but I cannot be arrested for getting married. Marriage does not have legal sanction. If it was illegal to put up a matrimonial ad then if you open up the papers you will find so many escort ads, all of those are illegal. I cannot go to jail because I got married to someone but I can go to jail because I had sex with someone,” says Harish

To put it simply, While gay marriages don’t have legal sanction they are not a criminal offence. You cannot be prosecuted and sentenced to prison, or even fined, for solemnizing a same-sex marriage per se, as the law is simply silent on the subject in India.


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