Author: Anubha Kumar, a student at Symbiosis Law School, Hyderabad


The paper discusses and analyses the recent judgment rendered for same-sex marriage and its significance. It focuses on the importance of the verdict given against homosexual couples in India. The absence of various rights and their reasoning have been showcased in the paper. It highlights its legal framework and the structure of the functioning of the Court in providing the verdict. It also briefly studies the arguments of the majoritarian and minority opinions on the adoption rights of the LGBTQ+ community. The findings and the exclusion of the rights with the current legal framework based on the constitutional rights are some of the key importance of the paper The discrimination and unfair treatment extending to homosexual couples in society has also been questioned to provide them equal protection under the law. It also aims to provide an analysis of the recent cases that have been challenged in a court of law. The research paper aims to prepare a study of the revolvement around the topic. The challenges faced and their key takeaways have been discussed with analysis and proper evaluation has been done in the research paper.

Background of Same-sex marriage legislation in India

The debate around Same-sex marriage or marriages performed among the LGBTQ+ community has been prolonged for a long time. The legalization of the same has always been the question of the hour. The marriage act under Indian law differs from religion. The Marriage Acts are governed by personal laws while there have been establishment of other marriage acts not limited to a particular religion as well. The marriages between same genders are not recognized as legal in India although homosexual couples are entitled to live with dignity and are protected under the constitution. It is also held that they have an equal right to live and shall not be subjected to any discrimination in society. The marriage between them is recognized solely by the ruling of the Apex court and its decisions on various statutory enactments. There is a low rate of acceptance from society for the LGBTQ community and its rights. Section 377 of the Indian Penal Code,1860 encompassed criminalizing unnatural sex or any voluntary carnal intercourse that is not biological or is not natural shall be an offense. Later, this section was challenged on its unconstitutionality and later was struck down giving the matter to the legislature’s opinion. In 2017, the government for the first time declared same-sex couples the right to live together yet was silent on legalizing the marriage. Furthermore, the community has lost out on legal and social advantages, but their lack of legal protection makes them more vulnerable to prejudice and discrimination.

Judgment & Findings

1. ‘Right to marry’ not equivalent to the fundamental right 

In the year 2023, the Supreme Court held that the Right to marry cannot be a fundamental right and unanimously ruled against the marriages between same sexes. It had contended that such marriages cannot be read within the Special Marriage Act of 1954 that enables marriages between inter-faith couples. In the 3:2 judgment, it was agreed that the existing legalization of marriages between the community stays still and shall not be altered. It was also held that for that it does not directly take away the component of marriage as a right guaranteed under the constitution of India. The State has an intricate function in the institution of marriage in India as it establishes requirements for a lawful marriage and supervises the nature of the marriage. Families and unions are not recognized by the Indian Constitution as a means of acquiring rights. The prospect of integrating a family’s or individual’s rights into a larger family unit is rejected by the Indian Constitution. The Indian Constitution fails to explicitly recognize the freedom to marry as an inherent right. The bench broadly concurred with this viewpoint, stating that the Constitution does not specifically guarantee the freedom to marry to the citizens. It kept its reliance on the factual matrix that the institution of marriage has not attained its social as well as legal significance yet it exercises the benefits from the legislation without questioning its fundamental nature. It was also claimed that marriage is not solely based on any statutory but on various personal and civil laws governed in the country. Marriage is a matter of privacy and any person shall not be deprived of it though it does not attain or supersede the rights to life and will continue to secure such rights without entailing a fundamental right for the same. 

2. Legal recognition on hold

There was a lack of subject on the legal recognition as a ‘right to union’. Sexual orientation should not be a factor in discriminating against people in cohabitation relationships, as the Court firmly recognizes the interests of equality under the Constitution. Such discrimination targets LGBTQ+ couples substantially. The right of every person to form a relationship with their partner was upheld as LGBTQ+ partnerships are entitled to this freedom. Homosexual couples who are unable to marry under the existing legal system would unfairly suffer if the State did not acknowledge the full spectrum of rights that result from these kinds of relationships. It follows that the State must recognize these unions and grant them legal protections. There was a need to refrain from the discrimination faced in the states and Union territories. The majoritarian opinion argued against legalizing the contention that the Constitution requires other legal frameworks, like marriage or established civil unions, for homosexual couples. Legislation including registration, eligibility requirements, and divorce processes would be necessary to establish such a structure. They maintained that just because people have a right under the Constitution to create personal relationships does not entail that a legal institution like marriage must be established. 

3. Absence of Adoption rights 

The recent judgment did not provide a legal provision for the adoption or right to form any civil union. The sole aspect of the adoption’s registration deed does not exempt the party making the adoption claim from providing persuasive evidence to support their claim or the opposing party from presenting proof to the contrary. It was held that the regulations provided for adoption i.e. Central Adoption Resource Authority (CARA) had prohibited same-sex couples from adopting was struck down by the court. Nevertheless, it was also added that same-sex couples cannot enjoy the right of adopt a child jointly. Various arguments relating to adoption were posed that explained that the provision under CARA was discriminatory to homosexuals and that it creates a sense of stereotype that only heterosexuals make up good parents and families. The provision encompassed that section 5(3) of the aforementioned regulation stated that for a person to adopt, they shall have at least 2 years of stable relationship which itself had infringed the rights of the community. In a 3:2 majority, it was argued against it expressing that the adoption by homosexuals as the objective of ensuring benefits to the child may not be reached if there is an absence of stability in the parenthood and therefore cannot be held as unconstitutional. It was also put forth that in the traditional method of parenting the child may be conditioned to only one specific gender role which might affect the child physiologically as well as emotionally. Therefore, such a stance on adoption is still on hold whether the question is on parenting by homosexuals or the challenges that may be faced with the sensitisation of topics in public. 

4. Continuance with the current framework of law

It was stated that the LGBTQ+ community will have the sufficient right to marry under the current legal framework and shall exercise their inherent right irrespective of their gender. The judgment had taken its stand in questionability of their recognition and determining their rights under the constitution to exclude any unjust practice against them. The bench had also provided that the State shall secure the interests of the community shall be obligated to equal means of livelihood and protection and shall take action in cases of infringement of their rights. It was also held that marriages by homosexuals could not be recognized under the Special Marriage Act of 1954. However, it does not invalidate the validity of the Act. It had placed its reliance on the purpose of the act as it is meant for the inter-caste marriages taking place between a ‘man’ and a ’woman’. Following Article 15(1) of the constitution, which prohibits discrimination based on sex and, consequently, a person’s sexuality, regulating solely heterosexual marriages would be an illegitimate governmental objective.

Challenges faced by the community

With the judgment being passed the LGBTQ+ community is subjected to discrimination, prejudice, and lack of equality in the constitution. There has been only a restricted amount of progress in the judgment rendered to protect the interests of the community. It had recognized the LGBTQ+ community’s exclusion from family laws which led to it being challenged in the court of law. In a nation where advanced jurisprudence on homosexual rights has been evolving, this is a significant setback for the rights of the community. There was an absence of transparency and harmony for homosexual individuals in the interpretation of laws. Due to their sexual orientation, same-sex potential adopters who were married under foreign law are at a distinct disadvantage particularly when it comes to joint adoption when compared to heterosexual married couples because of the contested Regulations. The stigma for the laws not being in coherence with the legal framework may result in affecting the social as well as the mental life of the LGBTQ+ community. The above judgment also provides the fact that for enough legalization, the questionability and their different laws may lead to huge delays and difficulties in marriage in India. 

Landmark Cases

  1. In Naz Foundation vs Govt. of NCT of Delhi, it was held that sec 377 of the Indian penal code,1860 shall be held as unconstitutional as it is violative of rights guaranteed under Articles 14,15,19 and 21 of the constitution. It is a matter of privacy and shall be subjected to be guaranteed within the interests of the public. Therefore, it was held by the Court that section 377 is ultra vires as it was criminalizing consensual sexual acts of adults in private and it was against the rights of homosexuals.
  1. In Navtej Singh Johar vs Union of India, a five-judge bench had partially struck down section 377 of IPC,1860 as it was violative of the inherent fundamental rights guaranteed to the citizens and was a matter of privacy that should be respected within the community. However, it added that any carnal intercourse shall take place with free consent and that it is open for the legislature on questions of any amendments to the law.
  1. In Nalsa vs Union of India, it was held as a landmark judgment for the recognition of transgenders as the third gender. It had granted protection against the discrimination of transgenders and stated it to be a human rights issue. It was also held that no biological test or medical examination that might violate the privacy of a third-gender person shall be performed.  


From the above judgment being rendered by the court, it becomes sufficiently clear that separate legalization for homosexual couples will amount to an ongoing process with heated debates and topics. It shall be considered that enacting separate laws is not a smooth process that the Constitution may guarantee. It shall be noticed that in the Marriage acts governed in India, there is a mention of a ‘wife’ and a ‘husband’ while having no reference to a ‘man’ with a ‘man’ or a ‘woman’ with a ‘woman’, which leads to questioning the purpose and functioning of the laws in the act and may retaliate in the interpretation of the clauses leading to confusion and lack of transparency in the marriage laws in India. Various interpretations and amendments are required that justify the enactment of such laws in coherence with the rights guaranteed. It can also be viewed as a major setback for the community because of the absence of legislation in India and ruling against their interests. The discrimination, violence, and other issues faced shall be taken into account and shall have equal hearsay in matters of violation of rights. As read in Article 21 of the constitution, all citizens shall be entitled to live with dignity and life and shall be treated equally. The verdict by the court opened multiple doors for freedom of speech by the citizens and their opportunity to say in the matter. The judgment also proves the fact that the allies of the community and the struggle for marriage equality and social justice continue in India. 



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