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Mar 11, 2022
5 things you didn’t know about the rights of Same-sex Couples
The Delhi High Court has taken up two petitions dealing with marriage equality for same-sex couples. The petitions seek that the Special Marriage Act (SMA) and Foreign Marriage Act (FMA) should apply to all couples regardless of gender identity and sexual orientation. The Court has asked the Central government to respond to these petitions.
- Is homosexuality a crime in India?
No, homosexuality is not a crime in our country. In the 2018 landmark judgement of Navtej Singh Johar v. Union of India, the Supreme Court said that homosexuality i.e., being sexually attracted to a person of the same sex, is not a criminal offence. Any two consenting adults are allowed to have sex. It doesn’t matter if the individuals having sex are both men, or both women, or belong to opposite sexes.
A ‘same-sex couple’ can refer to a gay couple (two men) or a lesbian couple (two women).
- The freedom of choice
The Supreme Court has said that when sexual orientation or choice is restricted, an individual’s natural and constitutional right is affected. The choice of whom to partner and the ability to find fulfilment in sexual intimacies is essential to the legal protection of sexual orientation. Any same-sex couple can choose to have a sexual relationship without fear, as long as there is consent by both the people.
- Are same-sex couples allowed to have live-in relationships?
Yes, same-sex partners can live together as a couple without being married. Recently, the Punjab and Haryana High Court ordered police protection for two women who were living together as a same-sex couple. The women had asked the Court to protect their life and liberty because they were being threatened by their family members.
The High Court said that because same-sex marriage is not yet legal in India as per our marriage laws, a lot of same-sex couples have to turn to live-in relationships. Article 21 of our Constitution gives everyone the right to protect their life and personal liberty. The Court said that the nature and legal status of a relationship is not important when considering the right to life and liberty, which is available to every person.
- The right to dignity
The fundamental right to life provided by Article 21 of our Constitution includes a right to live with dignity. The Supreme Court has upheld that any individual who has a same-sex partner also enjoys the right to live with dignity. Same-sex couples are equally protected under the law, and have the right to be treated in society as human beings without any stigma being attached to them.
- What can same-sex couples do if they face violence or abuse?
If any person faces discriminatory violence or abuse because of being in a same-sex relationship, the person can complain to the police and file an FIR. If the police are not being cooperative, the same-sex couple can approach the National (or State) Human Rights Commission which specifically looks into human rights violations, illegal detention, harassment in jail etc. For online crimes or online abuse, the couple can approach the Cyber Cell.