ADVANCING EQUALITY: The Legalization of Same-Sex Marriage in India

ADVANCING EQUALITY: The Legalization of Same-Sex Marriage in India

Author: Neetika Kalakar, a student at Mahatma Jyoti Rao Phoole University

“Marriage equality is not a choice. It is a legal right” -Cory Booker


Marriage is a concept that has existed in our society since ancient times. It is a social institution that transcends cultural boundaries and holds diverse meaning for the people around the world. At its core, it signifies a union between two individuals, typically based on love, commitment, and the intention to share their lives together. In India, marriages are governed under personal laws according to their religions. This varies from having monogamy relations under Hindu Law to polygamy among Muslim males. Some of the religions consider it sacramental that binds two individuals till eternity while to others it’s merely a contract. But the most essential and common ingredient among all the religions is that it must be heterosexual i.e. the marriage must be between a male and a female.


While the specifics of marriage may vary across cultures and time, its fundamental purpose remains the creation of a partnership built on love, trust, and mutual support, allowing individuals to navigate life’s journey together. Therefore, if two individuals are planning to spend their rest of lives together they should at least have the right to choose their partner irrespective if their caste, creed, religion or even gender. In recent years, the global landscape regarding same-sex marriage has been shifting, with numerous countries recognizing the rights of individuals to marry whomever they love, regardless of their gender. While Netherlands was the first ever nation to legalise same-sex marriage in the year 2001, Taiwan has landed the feat to become the first Asian nation to do so. Of these 34 nations where same sex marriages are legal, 23 legalised same sex couples to marry through legislation, while ten through court decisions. Both South Africa and Taiwan enacted the legislation following courts mandates. India, however, remains one of the nations where same-sex marriage is not legally recognized. 


Up until 2018 a consensual relationship between two adults of the same sex was an offence under Section 377 of the Indian Penal Code, 1860 which was decriminalized by the Hon’ble Supreme Court in Navtej Singh Johar v. Union of India. That was the first instance where the relationship between LGBTQ individuals was accepted by Indian society. However, the legal relationship between the same is yet to be recognized. So, this can be considered to be the stepping stone of the acceptance of same-sex relationships. This was further developed recently when the Supreme Court gave all rights to these couples, well except for the right to get married in.


It’s a well-known fact that the Fundamental rights in our Indian Constitution were adopted from the US Constitution by our framers. The provision of right to equality under Article 14 provides that everyone is to be treated equally and every individual gets equal protection of law.  Thus, it must also include right to equality in marriage irrespective of an individual’s gender. The Supreme Court of the United States of America in its landmark judgment in Obergefell v. Hodges, stated that the fundamental right to marry is guaranteed to same-sex couples by both the due process of law and equal protection of law. 

In a country where, the Constitution guarantees right to sleep to every individual under the scope of Article 21 which deals with right to life and personal liberty, it must also include the right to choose a partner and get married to them legally. While referring to Article 16 of the Universal Declaration of Human Right and the Puttaswamy case, the SC held that the right to marry a person of one’s choice is integral to Article 21 of the Constitution. Therefore, it can be deduced that marring to a person of one’s choice is part of living a life with dignity.  

Apart from the Fundamental rights, under laws all around the world including Indian Laws, marriage carries certain legal rights and obligations between the partners involved in the same. This is ensured by the personal laws under which they are governed. These also involve economic benefits such as tax advantages, inheritance rights and access to spousal healthcare and insurance. But these rights are only limited to heterosexual married couple. Denying these benefits to same-sex couples can create economic disparities and injustices. Legalizing same-sex marriage can ensure that LGBTQ+ couples enjoy the same financial advantages as heterosexual couples. These rights are not only limited to economic or financial benefits that heterosexual couples are entitled to but also extends to the benefits that a person is entitled to in case of separation, including the right to maintenance. In addition to this, a legalized marriage between homosexual couple would also provide them with the right to adopt children, since they cannot conceive the same unlike heterosexual couples. This would also act as a great opportunity to all those children who are orphaned, to have a home and live in a happy and well-nurtured environment and develop to their full potential which is their right under Fundamental rights as well as DPSP’s. Thus, providing them with an opportunity to have a family to both the couple as well as children 


Thus, allowing and legalizing the marriage between same-sex couples open a door to many ambits in an individual’s life. As not only it will provide them with certain benefits and rights which can be utilized by them even in case of living a life together but also at the time of separation. It might help them to get treated equally and accepted by the society with open arms. This can be a great initiative to not only help them live a dignified life but also have much stability. Although it might be long road but legalizing marriage just might be another step to reach the send of it.

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