In a recent progressive judgment, the Supreme Court of Costa Rica has legalized same-sex marriages. This decision can be perceived as a model for social inclusion which caters to the needs and desires of the sexual minorities. It has the potential to encourage other democratic countries to affirm the spirit of marriage equality. The question arises as to whether India can follow in the footsteps of Costa Rica and legalise same-sex marriage.

Overview of Costa Rica’s Decision

Costa Rica has followed the principle of social inclusivity in its democratic regime. In 2018, the Supreme Court gave the parliament 18 months to do away with the ban on same-sex marriages. Despite opposition in the legislative assembly and from the Catholic Church, the court upheld the doctrine of marriage-equality.

On 26^th May 2020, the deal was sealed with the first same-sex marriage being broadcasted in Costa Rica. Amidst the pandemic, this initiative taken by Costa Rica has served as a source of happiness to the cis-gender, non-binary, and human-rights activists.

India’s Conundrum on recognising same-sex marriages

In 2018, the Navtej Singh Johar v. Union of India judgment decriminalized homosexuality. This has widely been recognised as a progressive judgment, which rejected the legitimacy of a highly oppressive law in practice- section 377 of the IPC. It would be important to note that this did not entail marriage-equality for homosexual couples.

However, the parties that opposed marriage equality in principle, refer to the bulwark of social culture, and the sanctity of the institution of marriage. Marriage is considered to be a rather significant institution in India. The rituals are instituted by personal laws, which cater to different traditions required as per different faiths. It could be that the Indian society which looks down upon inter-caste, inter-faith marriages, will struggle to accept same-sex marriages, as same-sex marriages will attack the very sacredness of the institution.

Inter-faith couples are till date stigmatised, ostracised and bullied even though such marriages are within the domain of the legal provisions. It is pertinent to state that the individuality of a person has not been paid much heed in Indian Society. The society functions on kin and family-based relations, wherein the core part of people’s happiness is mediated by the social expectations to please the community at large

The Special Marriage Act, 1954, is a statute which takes a broader outlook on marriage, beyond the religious personal laws, does not involve religion, and thus allows inter-faith marriages which can be legitimised under the law. However, it can be observed that the law is not entirely gender-neutral. Some of the provisions give emphasis to heterosexual relationships, and clearly include the terms such as husband and wife, such as section 4.

Reinstating the principle of equal status

Article 15 of the Indian Constitution affirms the right to be protected from discrimination on all grounds. The denial of a civil right like marriage is discriminatory in practice, as this denial prevents same-sex couples from being fully integrated into the Indian society. For centuries, the LGBT+ community has been targeted by slurs, remarks and persistent marginalization. As equal citizens of India, they are entitled to the same fundamental rights given to other citizens, including the right to marry.

The contrary views to the legitimisation of same-sex marriage state that the couples can still profess their love, and conform to live-in relationships.  However, the adoption of these practices still does not mean that LGBT+ persons are not being discriminated against, in being denied the right to marry persons of their choosing. The civil right to marry will initiate a plethora of rights, such as inheritance, maintenance, and a joint-bank account.

There is an unequivocal error in assuming that the 2018 Judgment automatically also reinstated the doctrine of marriage equality. Film Actor, Ayushmann Khurana was reported to be proud of the fact that same-sex marriages were legalised in India. He then realised his mistake and stated that he hopes that someday, marriage equality is affirmed in his country. This confusion in the civilians’ minds should further drive the government to reinstate the principle of equal status by legitimising same-sex marriages.

Analysing the Potentiality of Achieving Marriage Equality

India’s recent wave of judgments has been proved to be fruitful for the LGBT+ Community. Ranging from NALSA v. Union of India to the Navtej Singh Johar J, these verdicts have redeemed the constitutional rights of the community.

The Madras High Court’s recognition of a transwoman as a bride has led to a debate surrounding the potentiality of marriage equality. The judgment broadly interpreted the term “bride” under Section 5 of Hindu Marriage Act, 1955. This interpretation serves as a precedent to oppose arguments that restrict same-sex marriage. Furthermore, the right to choose a partner was recognised by the Shakti Vahini Case. This analysis can easily be extended to the right to marry, as the decriminalisation of homosexuality has already inspired an ongoing movement for the affirmation of equal rights.

Recently, a petition was filed before the Kerala High Court, by a married gay couple, i.e. Nikesh and Sonu. Their marriage was a social-marriage, which is not recognised under the law.  They challenged the provisions of the Special Marriage Act, 1954, and wanted to get their marriage legitimised. The petition clearly states that the denial of the registration of their marriage violates the principles of equality, dignity, and individual autonomy. Even though the petition was not successful, many people are still hopeful of the fact that the principle of equality lurks behind the capitalist-driven minds of the state.

Conclusion

Costa Rica has stressed upon the need for inclusivity in democratic nations. Its extraordinary feat should drive us further to recognise the minoritarian perspective in our country. Furthermore, recent developments in the international arena pressing for LGBT+ rights push for a further re-evaluation of our own culture. These developments should act as a stringent wake-up call for India to provide its LGBTQ Community the much-awaited news.

The sanctity associated with marriage will act as a sense of security, or proof of the celebration of the love between two individuals. Legal safeguards should be implemented by a state, which solemnly swears to protect all entities/ citizens regardless of their sex, gender, religion and origin. The government should push for social inclusivity, and deliberate on altering the existing laws which govern the institution of marriage, adoption and divorce. This will only be possible if the judiciary once again steps in and passes on the baton to the government to protect the fundamental rights of its citizens.

After Costa Rica’s success, the total tally of the countries that permit same-sex moves up to twenty-nine. The time has arrived when India’s name should be added to that list.

ABOUT THE AUTHOR

Sonal Rawat

Sonal Rawat is a second-year student at National Law University, Delhi. She is passionately inclined towards Gender-studies and LGBT+ Rights. She also has a profound interest in learning about international legal developments that involve Human Rights.