Marriage – an LGBTQIA+ perspective: Deep dive into the future

Having analysed India’s approach, from a judicial lens, on marriage of same-sex couples by way of Part 1 and Part 2 of our article series, we now move to see what is in store, from a legislator’s lens.

The Supreme Court, in essence, recognised same-sex couples, i.e., either by way of a live-in relationship or marriage, but opined that existing laws cannot be amended to give ‘benefits’ and therefore a formal recognition by the State Mechanism, to same-sex couples, is necessary.

The implementation of the Uniform Civil Code (‘UCC’) has been in the works for almost a decade. A UCC at this stage, post the Supreme Court’s verdict in Supriyo alias Supriya Chakraborty, presents a peculiar opportunity to re-navigate personal laws for all ‘persons’ including not just same-sex couples, but the entire LGBTQIA+ community.

This last article of the series therefore, truncates the concept of UCC and how India will benefit from a UCC that includes all persons, not just from a religious perspective but also from a humanitarian and global perspective.

UCC is a model which provides a single and standardized code that is applicable to all citizens that covers marriage, divorce, succession, adoption etc., irrespective of religion or caste.

The existing personal laws are not designed to include ‘same-sex couples’ or the LGBTQIA+ community as a separate feature. Given the current momentum not just in India, but across the world, lawmakers now have a unique platform to include ‘same-sex couples’ and the LGBTQIA+ community, as part of UCC.

The concept of uniformity can be traced back to ancient times (5^th century BC), when the Vedas were codified to achieve uniformity and a basic Uniform Civil Codification began by documenting the oracle in cosmic hymns of Vedas during the first millennium BC. The same concept was revisited by the British, through the Lex Loci Report of 1840 which proposed uniform laws as against multiple personal legislations prevailing back then. The Law Commission of India has examined the implementation of UCC and made recommendations – recently, the 22^nd Law Commission, issued a public notice seeking views of the stakeholders.

In this regard, the Constitution of India provides guiding principles [Indian Constitution article 37] to lawmakers, to formulate UCC [Indian Constitution Article 44]. UCC can be enacted both by the Centre and the State [India Const. Seventh Schedule - List III-Concurrent List-Sl. No. 5]. Goa was the first State to have UCC, which was introduced during the Portuguese colonial times, and after the merger of Goa with India, the same continued to be a part of the State law [Portuguese Civil Code, 1867, Government of Goa (India)]. Recently, Uttarakhand received the assent of the President of India on its UCC [The Uniform Civil Code of Uttarakhand, 2024, No.43, Legislative Assembly of Uttarakhand, 2024 (India)]. Other states in India like Karnataka, Gujarat, and Maharashtra, have expressed their intention of formulating UCC for their respective States to bring personal laws under the ambit of one law.

A.   Marriage and Divorce

The need for a UCC to govern all citizens can be witnessed through the changing direction of judgements by Courts and public opinion. The Hindu Marriage Act, for instance, prevents polygamy. The Supreme Court went a step further and affirmed that it is not permissible for a Hindu husband to convert to Islam and then remarry, without first ending his previous marriage. [Sarla Mudgal and Ors. Vs. Union of India (UOI) and Ors, AIR 1995 SC 1531.]

Similarly, the concept of ending a marriage by pronouncing words was a concept under the Muslim Personal Law. However, the Supreme Court, in the now famous ‘Triple Talaq Judgement’, held that the concept of triple talaq is unconstitutional and is a violation of the dignity and equality of a woman practicing Islam. [Shayara Bano and Ors. Vs. Union of India (UOI) and Ors., AIR 2017 SC 4609.] 

It is therefore evident that various practices like Triple Talaq, are not common to other communities like Hinduism or Sikhism, thereby indicating different personal laws for different communities, leading to inequality between the citizens. Should there be a UCC, there would be uniformity in marriage and divorce, amongst others.

In the recent judgment of Supriyo, while there has been a recognition of same-sex couples, there are no laws that provide same-sex couples the legal sanctity of marriage or benefits arising out of marriage and / or succession.

Marriage is a union between two ‘persons’. Every ‘person’ (citizen), is the same in the eyes of the law. All rights and privileges should therefore be available to all. Such rights include maintenance and inheritance, privileges in the banking system like joint accounts, lockers, etc., nominees in the banking and insurance sector, pension, gratuity, and so on and so forth. 

B.   Succession 

Succession, under the Hindu Succession Act (‘HSA’) and Indian Succession Act, moves from one spouse to the other, but of a different sex. For intestate succession under the HSA, the widow of the deceased ‘male’ receives property as a ‘Class I heir’; the widower along with their sons and daughters of the deceased ‘female’, receives property. These rights are not available to ‘same-sex couples’, as the legislative intent behind these enactments was to recognise a marital relationship between a ‘male’ and ‘female’, even though, as recognised by the Supreme Court in Supriyo, ‘same–sex’ was not alien to the State.

C.   Adoption

The right to adoption is available to everyone regardless of marital status or gender. However, when it comes to the basic requirements provided by the Central Adoption Resource Authority (CARA), ‘same-sex couples’ have been discriminated.

A married couple, is eligible to adopt a child of any gender with the consent of the other spouse; a single female can adopt a child of any gender; a single male can adopt a male child. With no recognition of same-sex marriage, a child can only be adopted on an individual capacity, and in the case of gay men, only a male child can be adopted. In a 3:2 judgement on adoption as part of Supriyo, the minority found the CARA requirements discriminatory, leaving no room for relief under the current CARA regulations for same-sex couples.

The fundamental ethos of any society are ‘fundamental rights’. Article 14 treats all its citizens equally and denying equal opportunities to same-sex couples as it is available to heterosexual couples, is in violation of fundamental rights.

Numerous countries have already recognised same-sex marriage along with International Covenants like the ICCPR.

A section of the Constituent Assembly, led by Dr. BR Ambedkar, envisioned a UCC and bring our reforms in the society. Between 1947 and 2024, society has undergone a tumultuous change, with Courts decriminalising Section 377 of the erstwhile Indian Penal Code, 1860 and laying down guidelines towards same-sex couples and the larger LGBTQIA+ communities. It was in 1947, that Article 44 under Part IV of the Directive Principles of State Policy was inserted, throwing the ball down the road, hoping the future would address this aspect. The time has now come for progressive thought leaders, to not only advocate the concept of UCC but also to bring about active reformation within the society.

About the authors: Prashanth S Shivadass and Sumonto Chakravarty are Partner and Associate respectively, with Shivadass & Shivadass (Law Chambers).

Disclaimer: The contents and comments of this document do not necessarily reflect the views/position of Shivadass and Shivadass (Law Chambers) but remain solely of the author(s). For any further queries or follow up, please contact admin@sdlaw.co.in.

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