This article on ‘Same-Sex Marriage in India: Laws and Cases‘ was written by Pramod Sanap, an intern at Legal Upanishad.
Marriage is one of the most important aspects of a person’s life it is well-recognized in all cultures throughout the world. The right to marry is a well-recognized right under Article 21 of the Indian Constitution. Whereas for a long time, most of society only recognized heterosexual marriage, after a lot of struggle and discussions, many western nations have recognized same-sex marriage.
In India, there is no law that recognizes same-sex marriage due to this many are unable to get benefits and services from insurance and healthcare. Although the supreme court have decriminalized homosexuality in the historic judgment of Navtej Singh Johar v. Union of India there are many hurdles that same-sex couples face due to the non-recognization of their marriage by the law.
Same-Sex Marriage Legal framework
It is well known that society constantly evolves and the law needs to evolve or change according to the circumstances in that society is living. But the originalist interpretation totally ignores this fact and there are many laws that forbid various freedoms of an individual whose roots can be traced back to the colonial era.
Various activists and NGOs a long time are fighting for the recognization of LGBTQ rights by the legislature and courts. The ABVA which is an activist group fighting for the people infected by AIDS released a report in 1991 where it exposed how gay people face abuse and blackmail from the police. The Naz in 2001 for files a PIL in Delhi High Court opposing section 377 and to legalized homosexuality but the High Court dismisses the appeal on the basis of no cause of action.
While in 2009 the Delhi High Court strikes down section 377 arguing that it violates the basic rights to equality and liberty which are enshrined in the constitution. But later the supreme court overturns the verdict of the Delhi High Court. In 2018, in the landmark judgment of Navtej Singh Johar & Ors. v. Union of India, the supreme court strikes down section 377 which criminalizes homosexuality.
Legal Recognition of Homosexuality by Countries:
Denmark was the first nation to adopt legislation that recognizes same-sex marriage by a registered partnership. Soon Sweden also follows Denmark’s reforms and introduces Registered partnerships. After this many western nations followed the same step that Denmark took in the 90s and reformed their marriage laws so to recognize same-sex marriage.
Recognition under the Constitution of India
Article 21 of the Indian Constitution:
Which talks about private, consenting sexual encounters. Article 21 of the Constitution prohibits the state from meddling in a person’s domestic matters. It is hard to develop an extensive and comprehensive definition of privacy due to the concept’s vast nature. The South African court ruled that privacy recognizes that each of us has a right to a space of intimate privacy and autonomy that allows us to form and nurture human relationships free from interference from the outside community in the case National Coalition for Gay and Lesbian Equality V. Ministry of Justice. Even internationally, the right to privacy has been respected for lesbians and homosexual men.
The maintenance and succession benefits that are given to heterosexual spouses are not authorized to be received by heterosexual couples.
Sexual identity is included in the term “sex.” As a result, sexual propensity-based harassment is prohibited under both civil and criminal law. LGBT couples are essentially denied social acceptability, legal protection, and other benefits that marriage gives since the present family law exclusively recognizes heterosexual partnerships. Discrimination based on sexual orientation unquestionably breaches the fundamental rights protected by Article 15 of the constitution.
Which position does the government adopt?
In answer to the Delhi High Court’s petitions calling for the recognition of same-sex partnerships, Solicitor General Tushar Mehta for the Centre said that under the law, marriage was permissible between a “biological man” and “biological woman.” Additionally, he asserted that the Navtej Kaur decision had been misinterpreted. It practically decriminalizes, according to Mr. Mehta, but marriage is not discussed. This was denied by the petitioner’s counsel, who said that even if the term “same-sex marriage” was not used in the 2018 ruling, its recognition was still the “inevitable conclusion.”
Way forward for same-sex marriage:
After India’s Supreme Court decriminalized homosexuality, many questioned whether same-sex marriage should be made legal. To officially recognize interfaith marriage, the Special Marriage Act (SMA) was first enacted. LGBTQ couples are now requesting that their marriages be recognized by the SMA. Indian law does not recognize same-sex marriages or civil unions. Additionally, it is against the law for gay and lesbian couples to produce a child through an Indian surrogate mom.
To avoid moral objections being voiced, another tactic is to attempt to amend the Special Marriage Act of 1954 to authorize homosexual marriages. The Special Marriage Act, a nonreligious statute, makes it simple to wed individuals of other religions or those who don’t want their laws to be honored. Instead of executing a religious ritual, the registration official just certifies the relationship. The Special Marriage Act currently requires men to be 21 and women to be 18, giving the impression that it only applies to heterosexual couples.
Even though there is increasing awareness of the LGBTQ community in India, stigma and resistance to full acceptance persist. As of this writing, same-sex marriage and civil unions are legal in 33 countries.
The sole elements of equality are kindness, autonomy, and refusing to wed those of one’s fellow citizens who deserve it. It involves restricting their rights, treating them unfairly, stigmatizing them on a social and psychological level, and endangering their lives. Disbelief systems should only impose tight regulatory limits if they are confident that particular injunctions are required to avert interpersonal and individual damage. Forbidding someone from getting married is a punitive action that requires a compelling justification.
Yes, a gay relationship has an effect on everyone. No one’s union is hurt by the actions of others, and a person’s freedom to marry is legitimate regardless of whether other people find it acceptable or not. The idea that homosexual marriage, in any form, is harmful is false.
- Mahesh Kumar, As India’s top court takes up same-sex marriage, couples hope, and activists say there’s a long fight ahead, CBS News, 6 January 2023, available at: https://www.cbsnews.com/news/india-same-sex-marriage-supreme-court-lgbtq-rights-narendra-modi/
- Will India legalize same-sex marriage?, Hindustan Times, 6 December 2022, available at: https://www.hindustantimes.com/lifestyle/relationships/will-india-legalize-same-sex-marriage-101670342675170.html