ABSTRACT
This study explores the intricate system of same-sex unions and adoption in India. It offers a thorough examination of the societal, legal, and cultural aspects affecting the acceptance of these rights for LGBTQ+ people. The study investigates the historical setting, societal attitudes, legislative advancements, and difficulties faced by same-sex couples pursuing marriage and adoption rights. The study emphasises the potential advantages of adopting equality and inclusivity by drawing on global perspectives and comparative analyses. It also examines legal and activist initiatives, as well as future steps to promote a more just and equitable society for all Indians.
INTRODUCTION
Adoption and same-sex marriage are two important topics that have generated a lot of discussion and debate in India. India, a nation with a wide range of cultural, religious, and social standards, has made considerable strides in recognising the rights of the LGBTQ+ population while still facing ongoing difficulties. The recognition of same-sex marriage and adoption remains divisive, despite the fact that the decriminalisation of same-sex relationships in 2018 was a significant milestone.
This introduction lays the groundwork for understanding how same-sex marriage and adoption are developing in India. It gives a broad review of the background, legal advancements, and society attitudes related to these topics. It also emphasises how critical it is to address these issues in order to guarantee inclusivity and equality for everyone, regardless of sexual orientation.
HISTORICAL BACKGROUND
The cultural, religious, and societal influences on same-sex marriage and adoption in India’s past indicate a complex and changing understanding of human relationships. Although different cultural traditions and acceptance of different types of partnerships have a long history in India, the legacy of British colonial rule and subsequent legal developments have impacted the country’s landscape for same-sex marriage and adoption.
Diversity and Acceptance in Pre-Colonial India
Historical accounts from pre-colonial India point to instances when same-sex partnerships were acceptable and even celebrated in some groups. The Kama Sutra and other ancient Indian writings show a variety of sexual and romantic connections. Stories of same-sex couples are also found in some Hindu texts and mythologies, suggesting that these relationships are accepted and acknowledged to some extent.
It is crucial to remember that pre-colonial India was not a uniform society and that societal sentiments changed over time and between different regions, communities, and eras. Cultural, religious, and societal standards particular to each environment had an impact on how same-sex partnerships were accepted and understood.
Victorian values were imposed during British colonial rule.
The legal, moral, and social framework of Indian civilization underwent considerable changes in the 18th and 19th centuries with the establishment of British colonial control. Indian society was indoctrinated with Victorian-era British ideas, notably fundamentalist Christian beliefs, which resulted in the adoption of new moral standards and legislation.
Same-sex relationships were stigmatised during British rule because they were seen as immoral and unnatural, in line with Victorian ideas about gender and sexuality. In Section 377 of the Indian Penal Code of 1860, which was influenced by British legal norms, same-sex sexual practises were made illegal, influencing societal and legal perspectives on same-sex partnerships for decades to come.
Developments in the Law and Decriminalisation
In the latter half of the 20th century, efforts to challenge Section 377’s discriminatory provisions gained momentum. A significant decision in the Naz Foundation v. Government of NCT of Delhi case was made by the Delhi High Court in 2009. Due to constitutional protections for equality and against discrimination, the Delhi court decided to decriminalise consensual same-sex partnerships. The Supreme Court of India eventually overturned this ruling in 2013, reintroducing the illegality of same-sex relationships. Widespread opposition to the 2013 ruling prompted increased efforts to secure legal equality and LGBTQ+ community recognition.
Significant Supreme Court Decision and Its Effect
On September 6, 2018, the Supreme Court of India issued a landmark decision in the matter of Navtej Singh Johar v. Union of India that invalidated the part of Section 377 that made consenting to same-sex relationships a crime. The court established a fundamental precedent for LGBTQ+ rights in India by recognising the rights of LGBTQ+ people to equality, dignity, and privacy.
The background of same-sex marriage and adoption in India is influenced by legal, religious, and cultural factors. While pre-colonial India showed tolerance and diversity in human interactions, same-sex relationships were illegal under British colonial authority as a result of the imposition of Victorian standards. Legal advancements, such as the seminal Supreme Court decision in 2018, have made it possible to decriminalise same-sex relationships and recognise the rights of LGBTQ+ people. However, there is still a long way to go before same-sex marriage and adoption are legally recognised in India. Additional work is required to address these issues fully and guarantee equality and inclusivity for the LGBTQ+ population.
MARRIAGE LAWS IN INDIA
The legal recognition and control of weddings are governed by Indian marriage laws. The Hindu Marriage Act of 1955 and the Special Marriage Act of 1954 serve as the main pillars of the existing legal framework for marriage in India. For Hindus, as well as for interfaith and intercaste marriages, these acts set criteria for solemnising and registering marriages.
However, same-sex marriages are not specifically acknowledged or supported by the current marriage laws. These acts define marriage in accordance with conventional ideas of a relationship between a man and a woman. For same-sex couples seeking legal acknowledgment and protection for their relationships, this legal gap presents considerable obstacles. Same-sex marriages are not legally recognised, which has an impact on a number of things, including spousal rights, inheritance, property rights, and social benefits. Inequality and potential discrimination emerge when same-sex couples are not afforded the same legal protections and benefits as heterosexual couples.
There have been initiatives to close these legal loopholes in marriage. By changing current legislation, the Marriage legislation (Amendment) Bill, 2017, sought to include provisions for same-sex marriage. The issue of same-sex marriages’ legal recognition is still open because the measure was not signed into law.
ADOTPION LAWS: CHALLENGES AND AMBIGUITY
The legal adoption of a child is governed by adoption laws in India. The Juvenile Justice (Care and Protection of Children) Act of 2015 is the main piece of legislation governing adoption. The act outlines the adoption process’ requirements, but it makes no mention of same-sex couples’ eligibility to adopt.
There are difficulties and misunderstandings caused by the adoption laws’ lack of clear provisions for same-sex couples. Because it leaves leeway for interpretation, adoption agencies and courts have divergent policies addressing the suitability of same-sex couples for adoption.
In reality, because of societal prejudices, logistical challenges, and a lack of legal clarity, same-sex couples have challenges while trying to adopt children. On account of their own prejudices or misunderstandings, many adoption agencies can reject same-sex couples as prospective adoptive parents.
Due to these obstacles and legal difficulties, same-sex couples are not afforded the same possibilities to create families through adoption as heterosexual couples. The consequent legal ambiguities may discourage same-sex couples from pursuing adoption, posing obstacles to building devoted and secure families.
SOCIETAL ATTITUDES AND CHANGES:
- Religious and cultural influences: Cultural and religious elements have a big impact on how Indian society feels about same-sex unions and adoption. India is renowned for its numerous cultural and religious traditions, each having its unique views on sexuality and interpersonal relationships. Many religions in India, particularly fundamentalist interpretations of Islam, Christianity, and Hinduism, view same-sex partnerships as immoral or in conflict with their core teachings. These societal attitudes are frequently shaped by cultural and religious factors, which can contribute to the stigma and prejudice experienced by LGBTQ+ people. It’s crucial to remember, though, that not all religious and cultural groups have unfavourable opinions on same-sex partnerships. Some progressive religious organisations and individuals within different traditions promote acceptance and equality while contesting the dominant ideas and customs.
- Effects of traditional norms and values: The sentiments towards same-sex marriage and adoption are significantly shaped by traditional values and customs in Indian society. The idea that marriage should only be between a man and a woman is frequently reinforced by traditional gender roles, expectations of familial responsibilities, and the emphasis on procreation within marriage. Moreover, people who depart from the usual heterosexual norms may have difficulties due to the emphasis on upholding family honour, ensuring social harmony, and upholding society norms. Families and relationships involving people of the same gender could be viewed as breaking with tradition, which could spark hostility, stigma, and prejudice.
- The Role of the Media in Changing Perceptions: The representation of same-sex marriage and adoption in the media and in education both have a significant impact on public attitudes and perceptions. By featuring a variety of LGBTQ+ people and emphasising their relationships and families, the media has the ability to shape public opinion. Institutions of higher learning are essential for combating prejudice and fostering acceptance. A more accepting and understanding culture can be fostered via comprehensive sex education that covers knowledge on sexual orientation, gender identity, and various relationships. LGBTQ+ presence and visibility have significantly increased in recent years in both mainstream media and popular culture. Younger generations are more likely to defy conventions and welcome change as a result of this increasing visibility, which has changed perceptions and improved acceptance.
- Social acceptance, stigma, and discrimination: LGBTQ+ people in India who want to marry and have children of the same gender still have to deal with discrimination and stigma. The rejection of same-sex couples by their families, communities, and religious institutions might cause them to become socially isolated and excluded. The persistence of discriminatory practises and unequal treatment is facilitated by the lack of legal recognition and protection for same-sex unions and families. Accessing healthcare, housing, employment benefits, and other social and legal privileges that heterosexual couples take for granted may be difficult for same-sex couples. The ability to function in society is key to overcoming these obstacles. To create a more inclusive society, we must work to combat prejudice, advance comprehension, and cultivate empathy. It entails establishing safe spaces, assisting LGBTQ+ organisations and activities, and promoting conversation to dispel prejudice and misconceptions.
Cultural, religious, and traditional values have an impact on how Indian society views same-sex unions and adoption. These elements add to the difficulties LGBTQ+ people and couples who want to be accepted and recognised legally encounter. To combat biases and promote an inclusive society, education, media representation, and perception change all play significant roles. The key to guaranteeing equality and respect for everyone, regardless of sexual orientation, is to address stigma, societal acceptance, and prejudice.
LEGAL AND ACTIVISTS’ EFFORTS
- LEGAL CHALLENGES: The legal challenges and petitions that have been filed have been very helpful in getting same-sex marriage and adoption rights recognised in India. A petition to challenge the discriminatory rules and demand equality under the law has been filed in Indian courts by LGBTQ+ activists, organisations, and allied legal experts. These legal disputes frequently centre on constitutional rights, such as the rights to privacy, equality, and non-discrimination. They contend that it violates fundamental rights protected by the Indian Constitution to deny same-sex couples the ability to marry or have children. Famous cases, such Navtej Singh Johar v. Union of India and Naz Foundation v. Government of NCT of Delhi, have influenced legal debate and called into question the validity of laws that criminalise same-sex relationships. The acknowledgment of LGBTQ+ rights in India has made considerable strides as a result of these legal fights.
- ROLE OF ACTIVIST ORGANISATION AND ALLIES: The rights of LGBTQ+ people and couples in India have been strongly supported by activist groups and sympathisers. These groups, such the Lawyers Collective, Humsafar Trust, and Naz Foundation, have led the way in legal advocacy, public awareness campaigns, and community assistance projects. For LGBTQ+ people and couples, activist organisations offer legal support, counselling, and support networks. They strive to end discrimination, advance tolerance, and increase public understanding of the necessity of providing same-sex marriages and families with legal protection and recognition. In order to raise their voices and fight for equal rights, allies from a variety of fields—including human rights organisations, civil society organisations, and religious leaders—have teamed up with LGBTQ+ campaigners. Allies’ participation broadens the coalition for change and emphasises the significance of LGBTQ+ rights as a social justice issue.
- Reforms to Legislation and Lobbying: Pushing for legislation changes that recognise same-sex marriage and adoption in India has required intensive lobbying efforts and interactions with legislators and policymakers. Advocates for LGBTQ+ rights and activist groups have had discussions with legislators to advance inclusive legal frameworks and oppose discriminatory policies.Lobbying entails promoting policy modifications, delivering research and supporting data, and conversing with important players. It seeks to sway public opinion, debunk myths and misunderstandings, and increase support for legislative changes that advance inclusion and equality. Pushing for legislation changes that recognise same-sex marriage and adoption in India has required intensive lobbying efforts and interactions with legislators and policymakers. Advocates for LGBTQ+ rights and activist groups have had discussions with legislators to advance inclusive legal frameworks and oppose discriminatory policies. To officially recognise same-sex marriages and close the legal gaps in the current marriage laws, legislative reforms such as the Marriage Laws (Amendment) Bill, 2017 have been submitted. Even though these changes have not yet been incorporated into law, they represent the legislative arena’s advancement and the continued work to ensure equal rights for same-sex couples.
The acceptance of same-sex marriage and adoption rights in India has advanced thanks to legal challenges, petitions, activist groups, and allies. Progress has been made in opposing discriminatory laws and fostering inclusivity through legal advocacy, public education initiatives, lobbying activities, and involvement with officials.Equal rights for same-sex couples are now recognised as a reality thanks to important lessons and arguments from international legal precedents. It is impossible to overstate how much these precedents have influenced legal discourse and challenged cultural preconceptions.
The advancement of legislative changes and the promotion of a more inclusive legal framework that recognises and defends the rights of same-sex couples to marry and adopt in India depend on ongoing legal and activist initiatives, as well as cooperation across stakeholders.
THE WAY FORWARD
- Collaborative Change-Making Efforts: Moving forward, promoting change will require concerted efforts from LGBTQ+ organisations, allies, policymakers, religious leaders, and other stakeholders. Together, we can close knowledge gaps, forge consensus, and advance societal and legislative changes that support same-sex marriage and adoption rights. Diverse viewpoints can be brought together to address issues, debunk myths, and advance inclusivity by fostering debate and collaboration. Establishing forums for open dialogue, collaborative projects, and partnerships can spark significant change and advance a society that is more inclusive and equitable.
- Programmes for Public Sensitization and Awareness: Programmes for raising public knowledge and sensitization are crucial for overcoming prejudice, preventing discrimination, and fostering acceptance. By offering correct information, sharing human stories, and dispelling myths, these programmes can help alter public perceptions about same-sex marriage and adoption. Public opinions and attitudes can be significantly shaped by media, including television, movies, and online platforms. Popular culture’s positive and inclusive representations of LGBTQ+ people and families can help humanise their experiences and promote empathy and understanding. The general public can also be included in meaningful discussions on LGBTQ+ rights, marriage equality, and the value of recognising and supporting many types of partnerships and families through awareness campaigns, public events, and community outreach programmes.
- Inclusive Policies in Institutions and Workplaces: Fostering acceptance and securing equal rights and opportunities for LGBTQ+ people and couples depends on the establishment of inclusive policies in businesses and organisations. Government agencies, educational institutions, healthcare facilities, and businesses should all establish policies that forbid discrimination based on gender identity and sexual orientation. The scope of inclusive policies might include things like sensitivity training programmes, family leave policies, anti-discrimination laws, and healthcare benefits. These laws contribute to the creation of a welcoming atmosphere where LGBTQ+ people and couples can flourish free from harassment or discrimination. Employers and organisations can also create Employee Resource Groups (ERGs) or LGBTQ+ affinity groups to offer assistance, chances for networking, and a forum for discussion. These organisations aid in creating a sense of belonging and encouraging understanding amongst coworkers and peers.
- Education’s Function in Fostering Acceptance: The promotion of acceptance, the eradication of stereotypes, and the development of empathy for the LGBTQ+ population all depend heavily on education. Information about gender identity, sexual orientation, and many types of relationships and families should all be included in comprehensive and inclusive sex education in schools. Educational institutions should implement rules and procedures that guarantee LGBTQ+ students a safe and welcoming environment. This entails advocating for inclusive language, offering assistance, and dealing with bullying and harassment. The promotion of acceptance, the eradication of stereotypes, and the development of empathy for the LGBTQ+ population all depend heavily on education. Information about gender identity, sexual orientation, and many types of relationships and families should all be included in comprehensive and inclusive sex education in schools. In order to deepen their knowledge of LGBTQ+ topics and acquire inclusive teaching techniques, teachers and educators can enrol in training programmes. This gives them the ability to design inclusive classrooms where all children are treated with respect and value. The curriculum, textbooks, and instructional materials should also be changed to reflect varied family structures and incorporate LGBTQ+ voices and perspectives. This makes sure that children have a more complete grasp of families and human interactions as they grow up.
The future of same-sex marriage and adoption in India depends on interdisciplinary work, public awareness, inclusive policy, and education. Stakeholders can combat discriminatory practises, increase mutual understanding, and support legislation changes that uphold equality and inclusivity by cooperating.
Changing societal views and eliminating discrimination depend on public awareness campaigns, media representation, and community engagement initiatives. Equal rights and opportunities for LGBTQ+ people and couples are guaranteed through inclusive policies in institutions and workplaces. By embracing inclusive curricula and providing educators with training, education plays a crucial role in fostering acceptance.
India can make tremendous progress towards creating a more inclusive society that recognises and respects the rights of all people, regardless of their sexual orientation or gender identity, by putting these policies into place.
CONCLUSION:
A complex interaction of historical, legal, sociological, and cultural variables has an impact on India’s progress towards recognising same-sex marriage and adoption rights. According to historical evidence, same-sex relationships were occasionally tolerated in pre-colonial India, but British colonial control instilled conservative beliefs and made same-sex relationships illegal. Significant legal advancements, such as the decriminalisation of same-sex couples in 2018, marked these turning points. However, there are difficulties and ambiguities brought about by the legal framework’s lack of clear provisions for same-sex marriage and adoption. Traditional values and traditions, cultural and religious influences, and societal views all impact one another. Despite the fact that conservative religious interpretations support prejudice, society views are changing for the better as a result of increased awareness, media coverage, and education. Advocates for reform have relied heavily on legal and activist initiatives. Legal challenges, petitions, and lobbying have been used to overturn discriminatory laws, and activist groups and supporters have helped the LGBTQ+ community by raising awareness and offering support. International legal precedents clarify misconceptions and show the advantages of accepting same-sex marriage and adoption. The value of raising public awareness, combating prejudice, and promoting inclusive policies and education are only a few of the lessons discovered. For equality and inclusivity to be upheld, same-sex marriage and adoption rights must be recognised. Every person deserves the same rights and chances to create families, engage in loving and committed relationships, and create nurturing settings for children, regardless of their sexual orientation or gender identity. Same-sex marriages and families should be legally recognised and protected because they foster social acceptance, lessen discrimination, and improve the physical and mental health of LGBTQ+ people. It promotes a culture in which all people are appreciated and respected and in which variety is celebrated.
KEYWORDS: Same-sex, adoption , LGBTQ+, Marriage laws, Adoption, Community , Gender-Identity .
AUTHOR: ANISHA AGRAWAL
DESIGNATION: 3RD YEAR STUDENT OF BBA.LL. B(h)
COLLEGE NAME: AMITY UNIVERSITY RAJASTHAN
