Even though the Delhi High Court has heard multiple petitions and is still doing so in regard to the legalization of same-sex marriage within the country of India and the persecution that was amplified under British Colonial rule.
Historical Evidence of LGBTQ
Historical and literary evidence, whether it be the Vedas or else, has strongly indicated that homosexuality was prevalent and well accepted within society across the Indian subcontinent. This drastically changed in the 10th century when areas of the continent were slowly lost to Turkish Ghaznavid tribes and in the year 1206 with the establishment of the Delhi Sultanate resulting in homosexuality in any way, shape or form outlawed. Under the Islamic law of Fatawa ‘Alamgiri’ bought into existence during the era of the Mughal Empire, male homosexual intercourse was punishable by flogging for a Non-Muslim or stoning for a Muslim.
Under British rule, things were no different with the introduction of laws such as ‘Offences against the person Act’ 1828, which labelled the act of homosexuality as “ungodly” and made it punishable by up to 10 years in prison or even execution. The ‘Criminal Tribes Act of 1871 declared transgenders as ‘eunuchs’, labelling them as a criminal tribe and making them invisible to state policies.
Another reason for the issue in question can be that India currently does not possess a unified marriage law. This means that every citizen has the right to choose which law will apply to them based on their community or religion, which in turn results in the law being bent as per the whims and fancy of those in power. Even though none of the acts pertaining to marriage explicitly states that marriage can only be conducted between a man and a woman, neither do these acts explicitly prohibit or outlaw same-sex marriages and unions. However, the laws have been interpreted not to recognise same-sex unions.
How are things Drastically Changing?
On the 3rd of July 2022, a gay couple from Kolkata officialised their marriage in a glamorous ceremony taking the internet by storm with the majority praising the couple and wishing them a blissful journey ahead. In early 2022, a gay couple in Hyderabad also officialized their marriage in a relatively covert ceremony making them the first same-sex union in the state of Telangana.
The attitude towards homosexuality as a whole is changing as the government is slowly removing all the dusty colonial laws and making a step towards progress. On 6 September 2018, a 5-judge constitutional bench of the Supreme Court of India invalidated part of Section 377 of the Indian Penal Code, marking a landmark in this progress by making homosexuality legal in India. In striking down the colonial-era law that made the act of homosexuality punishable by up to 10 years in prison. This ruling applies to the state of Jammu and Kashmir too, under Article 141 of the Constitution of India and Delhi Agreement 1952, as section 377 of IPC and the Ranbir Penal Code.
With this drastic shift in the mindset of the Indian people and the progress and changes being made in the legal structure of the country by repealing such dusty colonial laws, the status of same-sex marriage in the country is bound to change. As per the pace of this much-welcomed change, in the near future, not only will the unions be legalised with a vote from the majority, but also the general acceptance towards the LGBTQ of the country will also improve.