Heteronormativity is accommodated by Indian society’s conventional standards. This has been reflected in our general perspective on any discussion about relationships or marriage that we have. Even our legal and judicial systems mindlessly adhere to it as though there is no other possible reality because it has been so thoroughly internalised.
A person can select the law under which they want to get married from among the several religious laws that exist in India. Unfortunately, these rules either explicitly refer to heterosexual partnerships by using terms like “husband,” “wife,” “man,” and “woman,” or the general laws have also been interpreted in a way that is only applicable to these couples. Even though it took the judiciary till 2018 to decriminalise homosexuality thanks to the historic decision of Navtej Johar v. Union of India, it is unfortunate that the ruling does little to grant same-sex couples the same liberties as it does to heterosexual couples.
In a number of cases, Indian courts have ruled that Article 21 of the Constitution of India, 1950’s right to life includes the right to marry the person of one’s choice. In the instances of Shakti Vahini v. Union of India (2018), Shafin Jahan v. K.M. Ashokan and Ors. (2018), and Lata Singh v. State of Uttarpradesh (2006), a woman’s right to marry a man outside of her caste or religion has been upheld. Cases involving same-sex couples, such as Navtej Johar v. Union of India (2018), Madhubala v. State of Uttar Pradesh (2020), and Chinmayee Jena v. State of Orissa (2020), also show the emergence of this very idea of the right to select one’s own spouse.
Even though there has been a noticeable shift in the judiciary’s attitude towards the legitimacy of same-sex relationships, as evidenced by some judgements issued as recently as 2020 and in which the fundamental rights of same-sex couples have been acknowledged and they are permitted to cohabitate, there is still a long way to go before their inclusion in marriage laws. The result is that same-sex couples do not receive many of the advantages that heterosexual married couples have because marriage as a concept is still heterosexual in India. As a result, the LGBTQ+ community continues to call for equality in society.
The same rights to equality, freedom from discrimination, and the ability to be in relationships with people of the same sex as heterosexual couples should also apply to LGBTQ+ people. One cannot claim that members of the LGBTQ+ community are now on an equal footing with heterosexuals simply because homosexuality has been decriminalised; rather, equality for them will only be achieved until laws are changed to grant them spousal advantages like adoption, inheritance, maintenance, and other rights. By failing to take any affirmative legislative action to defend their interests, the law has justified the oppression that is imposed on them, treating them in a most brutal manner. A true victory for same-sex couples wouldn’t occur until they received the same rights as heterosexual couples and were treated equally without being subjected to arbitrary discrimination based only on their sexual orientation. In the eyes of the law, they must be treated equally.
Constitutional Rights
After the Navtej Johar ruling, it can also be claimed from the perspective of constitutional law that there is no discernible distinction that allows the law to discriminate against homosexuals and heterosexuals since it is based entirely on their sexual orientation. The fact that gays are obliged to live in a less humane way where they cannot even openly express their wants because they are perceived as different from heterosexuals is itself discriminatory. Since there is nothing that distinguishes homosexuals from heterosexuals outside their sexual orientation, the fact that they are perceived as being unequal is itself arbitrary. Due to such arbitrary discrimination, heterosexuals’ equal rights and personality are denied. To support this, it might be claimed that the state must acknowledge their right to select the partner of their choosing, regardless of gender, lest they engage in arbitrary discrimination against homosexuals.
Adoption Laws
Same-sex spouses do not receive many of the privileges that heterosexual couples do, such as the right to inherit spouse’s property, maintenance, guardianship, etc., because same-sex marriages are not recognised in India. Even India’s adoption legislation, such as the secular Juvenile Justice (Care and Protection of Children) Act, 2015 and the Hindu Adoptions and Maintenance Act, 1956 (“HAMA”), do not permit same-sex couples to freely adopt a child of their choosing. For instance, Section 7 of the HAMA from 1956 emphasises a man’s ability to give his son or daughter up for adoption. The proviso to this is that such a man must obtain his “wife’s” consent.
It is quite evident that all personal laws have heterosexual foundations, hence there is no room for these rules to allow for same-sex unions. In the case of Shivani Bhat v. State of NCT of Delhi and Ors. (2015) , where a transgender man was unlawfully imprisoned in his grandparent’s home solely on the basis of his gender identity, this socioeconomic marginalisation and othering that the queer community must endure was also acknowledged by the court.
The freedom that married couples have to publicly announce and express their love, which further legitimises their relationship, is another facet of marriage that is frequently observed in India. A heteronormative culture has long existed in India, making it impossible for LGBTQ+ people to freely express their love for their partners. As a result, their love is rarely acknowledged as being sincere and deserving of respect. By providing advantages to married couples, the government plays a crucial part in legitimising marriage unions and transforms into an institution that bestows respect and dignity upon matrimonial partnerships, hence marginalising and degrading same-sex unions.
Even though the Indian Constitution guarantees our right to self-determination and the freedom to select a life partner, India still has a conservative view of same-sex unions. The laws either explicitly support heterosexuality or have had general sections construed in a way that promotes heteronormativity. Regarding providing room for the LGBTQ+ population to express their rights and be allowed to live with a partner of their choice, there has been a relative shift in the judiciary’s perspective. We are still far from giving them the same rights as heterosexual couples in terms of same-sex marriage and the advantages that come with it.