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INTRODUCTIONThe institution of marriage in society is generally regarded as extending only to male-female relationships, although most marriage statutes use gender-neutral language. Where as, many examples of acceptance of homosexual marriages has only been recently forthcoming as society is gradually becoming more permissive. This change is reflected in the increasing number of jurisdictions, which have decriminalised such acts. However, many jurisdictions have retained their statutory prohibitions on homosexual marriages despite much criticism from groups and individuals who believe that the sodomy law is obsolete and should be repealed.
Hence same-sex relationships, regardless of their duration, are not legally recognized in most countries and as a result, homosexual partners are denied many of the legal and economic privileges automatically bestowed by marital status. These include employment benefits, the ability to file joint tax returns and perhaps most importantly since the advent of AIDS — health benefits and rights arising on the death of a partner, including interstate inheritance etc. In society at large many of these benefits are available to heterosexual de facto partners, but continue to be unavailable to homosexual partners .
DEFINTIONThe word homosexuals literally means as of the same sex, being a hybrid of the Greek prefix homomeaning same’ and Latin root meaning sex’. Homosexuality is a sexual orientation characterized by sexual attraction or romantic love exclusively for people who are identified as being of the same sex.
People who are homosexual, particularly males are known as gay’, gay females are known as lesbians’. That is homosexual marriages, sometimes referred to as gay marriage, indicates a marriage between two persons of the same sex. Homosexual marriages are also known as gender-neutral marriage, equal marriage, and gay marriage.HISTORYThe earliest western document concerning homosexual relationship come from Ancient Greece, where same sex relationship were the societal norm. Even homosexual marriages have occurred with relative frequency in the past, both within Christian and non-Christian communities. Such as homophilia and inversion are the older words for homosexuality which are not into use these days. More words like queer, homo, fag or faggot, dyke are also less frequently used. Researches suggest that the Catholic Church, which has been extremely vociferous in its opposition to homosexuality in general, approved of same-sex marriages for over 1 500 years, only ceasing to perform them in the nineteenth century.In preindustrial societies also homosexuality was generally accepted by the lower classes while some members of upper classes considered it immoral. However with the rise of urbanization and the nuclear family, homosexuality became much less tolerated and even outlawed in some cases. The sexual orientation in pre modern era as depicted in love poetry and paintings and even in historic figures such as Alexander the great, Plato, Hadrian, Virgil, Leonardo da Vinci, Michelangelo and Christopher Marlowe included or were centered upon relationship with people of their own gender. However the term homosexuality appears in print for the first time in 1869 in an anonymous German pamphlet paragraph 142 of the Prussian penal Code and Its maintenance paragraph 152 of the Draft of a Penal Code for North German Confederation written by Karl Maria Kertbeny. This pamphlet advocated the repeal of Prussia’s sodomy laws. Thus homosexuality is not a new phenomenon. Even instances of homosexuality are available in Hindu Mythology. The literature drawn from Hindu, Buddhist, Muslim, and modern fiction also testifies the presence of same-sex love in various forms. Ancient texts such as the Manu Smriti, Arthashastra, Kamasutra, Upanishads and Puranas refer to homosexuality. Also there are reports that same-sex activities are common among sannyasins, who cannot marry. Thus instances of homosexuality are available in historical and mythological texts world over and India is not an exception to this.The Cultural residues of homosexuality can be seen even today in a small village Angaar in Gujarat where amongst the Kutchi community a ritualistic transgender marriage is performed during the time of Holi festival. This wedding which is being celebrated every year, for the past 150 years is unusual because Ishaak, the bridegroom and Ishakali the bride are both men. Thus the history is filled with evidences proving the existence of homosexuality in past. Whereas in the past 10 years world over, for the lesbian and gay rights, we find that the legal initiatives have shifted from the right to be privately sexual, that is the right to have same-sex relationships at all, to the right to be individual civic subjects, protected from discrimination in the work place and in the provision of services, toward the right to have relationships given status by the law. This shift in rights-focus, from decriminalization, to civil protection, to civil recognition is, not entirely a linear one. Thus in recent years a number of jurisdictions had relaxed or eliminated laws curbing homosexual behavior.HOMOSEXUALMARRIAGES: THE GLOBAL SCENARIOFaced with the fact of homosexual unions, civil authorities adopt different positions. At times they simply tolerate the phenomenon, at other times they advocate legal recognition of such unions, under the pretext of avoiding, with regard to certain rights, discrimination against persons who live with someone of the same sex. In other cases, they favour giving homosexual unions legal equivalence to marriage properly so-called, along with the legal possibility of adopting children. Thus an increasing number of jurisdictions have de-criminalised homosexual acts. However, many jurisdictions have retained their statutory prohibitions on homosexual acts despite much criticism from groups and individuals who believe that the laws are obsolete and should be removed. Anyhow the last century witnessed major changes in the conception of homosexuality. Since 1974, homosexuality ceased to be considered an abnormal behaviour and was removed from the classification of mental disorder. Since then homosexuality has been de-criminalized in different countries. There are various states across the globe that enacted anti-discriminatory or equal opportunity laws and policies to protect the rights of gays and lesbians. In the late 1990s and early 2000s, progress towards and bans of same-sex marriage created a topic of debate all over the world. Currently, same-sex marriages are recognized nationwide in six countries: Netherland (2001) , Belgium (2003), Canada (2005), Spain (2005) and South Africa (2006). The state ofMassachusetts in the United States also recognizes same-sex unions (although these marriages have no legal recognition at the federal level in the US). With this an estimated 155 million people worldwide, or approximately 2.5% of the world’s total population, will live in places where same-sex marriage exists. INDIAN SOCIETY AND HOMOSEXUALITYIn India, so far no such progressive changes have taken place as regards social and legal recognition and homosexuals remain victims of violence in different forms supported by the state and society. In India from a scattered group of a few hundred, homosexuals are at present ten crore strong and growing community evolving its own hip and happenings. They are weaving there way from metros into semiurban societies both online as well as offline. This number is gradually increasing with more and more such people coming out of the closet. While Delhi and Mumbai (with five lakh gays each) and, to a lesser extent, Bangalore and Calcutta are the hub of the Indian gay movement, people from smaller towns in Gujarat, Maharashtra and Bihar are also coming out. These Indian gays are talking live in chat rooms, looking for soul mates, falling in love, having sex on the net and crossing cities to be with each other in real world. This shows that homosexual relationships are not unheard of in India, but they generally exist in the country’s larger cities where people can be more open about their sexuality. A number of cities and larger towns, such as Karnataka, Delhi, Mumbai, Calcutta, Bangalore, Hyderabad, Pune, Chennai, Patna, Lucknow, Akola, Trichi and Gulbarga, had a number of resources for gays, lesbians and transgender communities that include – help-lines, publications/newsletters, health resources, social spaces and drop-in centers. In recent past the homosexual community of Calcutta, Mumbai and Banglore also hosted the gay pride march. All the above instances show that the homosexual community in India is visible and is gradually becoming vocal in their demand. LEGAL STATUS OF HOMOSEXUALS IN INDIA BEFORE NAVTEJ SINGH JOHAR JUDGEMENTSection 377 of the Indian Penal Code (1860) relates to Unnatural Offences and includes homosexuality within its domain. In India this Law relating to homosexuality was adopted from the British penal code dating to 19th century. Section 377 states:Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.Similarly section 292 of IPC refers to obscenity and there is ample scope to include homosexuality under this section. Also section 294 of Indian Penal Code, which penalizes any kind of “obscene behaviour in public”, is also used against gay men.It is important to note here that in England the offence of homosexuality between consenting partners has been abolished by the Sexual Offenders Act 1967 (that is in the country of origin of this law) whereas in India, the consent is quiet immaterial for constituting an offence as defined under this section. Thus in India it is primarily section 377 which explains and defines unnatural offences. It is this section which makes Homosexuality illegal with life imprisonment or with imprisonment for ten years with fine. CASES AND SENTENCEIn the history of the statute from, 1860 to 1992 there were only 30 cases in the High Courts and Supreme Court. Out of these 30 cases, 18 were non-consensual, 4 were consensual of which 3 were before 1940 and 8 were unspecified and 15 out of 30 cases registered were assault on minors. In a judgement FazalRab Vs State of Bihar the Supreme Court was dealing with a case where a man had homosexual relations with a boy with the consent of the boy. The Supreme Court in 1983 observed that: ‘the offence is one under Sec. 377, IPC which implies sexual perversity. Considering the consent of the boy, the Supreme Court reduced the sentence from 3 years rigorous imprisonment to six months rigorous imprisonment. Also Section 377 had been used to intimidate women, particularly in the case of women who have run away together or if they make their relationship-known. In 1987, Tarulata/Tarun Kumar underwent female to male sex change operation and married Lila in 1989. Lila’s father filed a petition in the Gujarat High Court saying that it is a lesbian relationship and that the marriage be annulled. The petition contends that ‘Tarun Kumar possesses neither the male organ nor any natural mechanism of cohabitation, sexual intercourse and procreation of children. Adoption of any unnatural mechanisms does not create manhood and as such Tarun Kumar is not a male. The petition called for criminal action under Sec. 377. In 1992, 18 men were arrested from a park in New Delhi on the suspicion that they were homosexuals. After protest and demonstration by gays, lesbians and human rights groups, they were released from police custody after filing a petty case against them. In fact they were not indicated under Sec. 377 but under the provision of public nuisance under the Delhi Police Act. Similarly in another instance in september 1994 Section 377 of the Indian Penal Code, which makessodomy a crime, was being cited by prison authorities in India to justify their refusal to distribute condoms among inmates. Similarly in 2001, the Delhi High Court admitted a petition challenging the constitutional validity of the article on the ground that it “criminalizes homosexual acts” even between two consenting adults and impedes AIDS control efforts among homosexuals. The case is pending in court despite several hearings.In 2004, a parcel containing a few copies of a gay and lesbian magazines for the South Asians from the US was sent to a gay group in Calcutta for distribution to subscribers was confiscated by the Customs authority under Section 292 of IPC. They contended that as per law this publication amounts to obscenity and offensive to the morality of the country. This case was closed when the addressee discarded the parcel seeing no way out.In a recent case a highly educated person committed this offence, the Supreme Court having regard to his loss of service and other consequences to his career following the offence let him off with a sentence of two months’ imprisonment. In yet another case the Supreme Court reduced the sentence of the accused to six months imprisonment as the accused while committing sodomy did not use force on the boy. In a case of Himachal Pradesh where a truck driver twice committed sodomy on a boy in his truck, a sentence of one year’s imprisonment and a fine of Rs. 500.00 were imposed on the accused. All these instances indicates that the actual sentence imposed under this section is not usually heavy.2018 JUDGMENT DECRIMINALIZING HOMOSEXUALITY IN INDIA In the recent landmark judgement of the Supreme Court in Navtej Singh Johar v. Union of India has written much about homosexuality . A bench of five judges of Supreme Court was set up to decide this case where they partially struck down Section 377 of the Indian Penal Code (IPC).. which made carnal intercourse against the order of nature a criminal offence. There was delivery of four different judgements by the court they were by Chief Justice Misra, and Justices Chandrachud, Nariman and Malhotra. conclusions being arrived at were the same, reasoning being different. For example, Justice Nariman held that there could be no presumption of constitutionality for pre-Constitution laws. The sex plus test was rejected by justice chandrachud laid down in Air India v. Nergesh Mirza, case while these subjects were not of much concern by any other judges. This post highlights the key reasoning of the major cases. All the other references are pubished from the original judgement on Supreme Courts’s website.
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