Arunima Shastri

Traversing from Repulsion to Recognition of Homosexuality: A Study of Marital Laws in the Indian Landscape

Abstract

Marriage is a sacramental and innate feature of the social structure bereft of compartmentalized understanding of genders. The precept of marriage from the point of law has undergone phenomenal changes in India; the most notable has been the acknowledgment of gender beyond binaries. Although the rich architecture of India in Khajuraho Temple along with various scriptures such as Ramayana, Mahabharata, Arthashastra stand witness to homosexuality as a repeated reference. The Supreme Court in Navtej Singh Johar v. Union of India (2018) decriminalized Section 377 of the Indian Penal Code, 1860 which spoke of consensual sexual conduct between adults of the same sex as an offence. This has armored the recognition of the right to sexuality, right to sexual autonomy and right to choice of a sexual partner to be part of the right to life guaranteed by Art. 21 of the Constitution of India. In the Earlier month this year, three petitions were heard by the Delhi Highcourt seeking recognition for Same-Sex Marriages under existing Laws. Citing Legitimate State Interest and Societal Morality based on Indian ethos, the Centre is seeking dismissal. The fate is yet to be decided by the Courts.

Through this research, the author will discuss the traversed path of Homosexuality from repulsion to recognition in the Indian Landscape analyzing the Marital Laws- Special Marriage Act, Hindu Marriage Act, and Foreign Marriage Act from the lens of constitutional mandates guarantying the right to choose a partner, which is the right to unison and companionship. As Marriage after all arises from the union and the idea of heterosexuality runs antithesis to Fundamental Rights offered to individuals by its grundnorm.

Keywords: marriage, constitution, homosexuality, social structures, freedom.

Biography

The Author was formerly working as an Assistant Professor at Kalinga University, Raipur and Karnavati University, Gandhinagar, it has been one and half year of devoting services in Legal Academia. She is also an early Research Scholar from Gujarat National Law University with her keen interest in uplifting the status Negative Spaces in IP under Visual Arts. Further, being an early law teacher having taught courses on Criminology and Victimology, Labour Laws.She is an alumna of UPES Dehradun and pursued masters from National Law University Odisha in Corporate Laws. Despite being an IP enthusiast, she has also engaged herself in researching Reproductive Rights of Women vis-à-vis Disability, Transgender persons (Protection of Rights) Act, 2019 and implications weighed under Constitution, the issues and challenges during Covid19. She was invited as a Panelist in a Symposium Organized by Amity Law School, Noida to speak on the area: Providing legal assistance in light of emergence of cases due to Lockdown rise in domestic violence, She has presented papers in various National and International Conferences and Seminars held by prestigious Universities including ILI,NLU Delhi, RGNUL,DSNLU, Texas A&M. She holds a fervent desire of exploring beyond the Black letters of the Law.