Author:Haripriya Rajendra Tiwari (Reshma), Adv Balasaheb Apte college of law
“A tree must grow with its roots; tradition is not a cage, but a compass.”
Headline of the Article
Between Rights and Rituals: Revisiting Article 377 and the Indian Stance on Same-Sex Marriage
To the Point
In a historic judgment delivered in 2018, the Supreme Court of India struck down portions of Section 377 of the Indian Penal Code, effectively decriminalising consensual same-sex relationships among adults. This ruling marked a significant step forward in affirming individual freedom and human dignity. Despite this progress, the question of granting legal recognition to same-sex marriages continues to face opposition in several Indian states, where cultural and traditional norms strongly influence public and legislative opinion. Several state governments and cultural institutions argue that such unions, though valid from an individual rights perspective, may disrupt the sanctity of marriage as a sacred institution in Indian culture.
This article attempts to respectfully discuss why certain states believe same-sex marriages should remain unrecognised, citing scientific, social, and traditional reasons, without invalidating the existence or dignity of third-gender persons.
Use of Legal Jargon
Section 377 IPC: Historically criminalised “unnatural offences,” including same-sex acts. Partially struck down in 2018.
Article 14: Ensures equality before the law.
Article 21: Protects life and personal liberty, including dignity.
Personal Laws: Religion-specific laws governing marriage, divorce, and inheritance in India.
Constitutional Morality: A doctrine prioritising constitutional values over popular or religious sentiments.
The Proof
Indian Context of Marriage:
In India, marriage is not merely a legal contract—it is a spiritual and social institution, deeply rooted in religious rites, kinship patterns, and procreation-based continuity.
According to the Hindu Marriage Act, 1955, marriage is a sacrament involving a man and a woman, designed for the performance of dharma and continuation of varna and gotra.
The Islamic, Christian, Sikh, and Jain personal laws similarly define marriage in heteronormative terms.
Scientific Concerns Raised (Non-stigmatic View):
Though homosexuality is not a mental illness, some child development specialists argue that children raised in non-heterosexual families may lack balanced gender modeling, especially in societies where alternative role models are scarce.
Research in sociology and evolutionary biology sometimes supports that marriage evolved to ensure stable reproduction and lineage, functions less compatible with same-sex unions.
In societies like India, where familial interdependence and lineage-based duties play a major role in social structure, altering the definition of marriage may bring disruption to customary obligations such as ancestral worship and inheritance rituals.
Social Fabric and Public Sentiment (Short Version)
In India, marriage is more than a private bond—it is a cultural and familial institution, tied to duties like inheritance, ancestor worship, and caregiving. Many argue that same-sex marriage, if legalised without social readiness, could disrupt these traditional structures, especially in regions where families are interdependent and alternative support systems are limited.
Additionally, a large section of Indian society remains unfamiliar with LGBTQIA+ realities, making sudden legal changes harder to absorb. To balance rights with cultural continuity, some suggest starting with civil unions or legal partnerships, allowing society time to adjust while still protecting individual dignity and autonomy.
Abstract
The 2018 verdict in Navtej Singh Johar v. Union of India marked the beginning of legal recognition for LGBTQIA+ individuals in India. However, the issue of same-sex marriage continues to spark debate and remains unresolved.While proponents argue for equal marital rights, certain Indian states and cultural thinkers believe that allowing such unions may distort the sacred institution of marriage, which is historically tied to religious customs and reproductive continuity. This article explores that viewpoint while maintaining respect for the dignity and identity of all individuals.
Case Laws
Navtej Singh Johar v. Union of India (2018) 10 SCC 1
The Supreme Court read down Section 377 IPC to the extent that it criminalised consensual same-sex relations.
The Court stopped short of granting marital rights, leaving that decision to the legislature.
Sarla Mudgal v. Union of India (1995) 3 SCC 635
It emphasised the need for consistent personal laws, underlining that marriage in India is deeply rooted in religious traditions and social customs.
Supriya Chakraborty v. Union of India (2023)
The Supreme Court declined to legalise same-sex marriages, stating that the institution of marriage is within the legislature’s domain and should be guided by cultural and social realities.
Conclusion
The debate around same-sex marriage is not one of morality versus immorality but of modern constitutional liberties versus deeply rooted cultural traditions. Indian marriage laws, embedded in religious and societal expectations, reflect a system where marriage is a duty-bound institution, not just a personal choice. While the rights of third-gender and LGBTQIA+ persons must be protected, some states argue that legalising same-sex marriage in India might create discord with sacred traditions, social responsibilities, and familial structures. The way forward lies not in judicial imposition, but in gradual social discourse, legislative clarity, and cultural readiness.
FAQs
Q1. Is homosexuality legal in India?
Yes. Since 2018, consensual homosexual acts between adults are not punishable under Section 377 IPC.
Q2. Is same-sex marriage legal in India?
No. As of 2025, same-sex marriage has not been legalised. The Supreme Court has clearly stated that the issue of same-sex marriage falls under the authority of Parliament, and any legal recognition or change in marriage laws must come through legislation, not judicial direction.
Q3. Are there scientific reasons to restrict same-sex marriage?
While homosexuality is not a disease, some scholars cite biological, sociological, and child development frameworks in support of traditional marriage norms. These views are contested and vary globally.
Q4. Can personal religious beliefs restrict marriage rights?
Yes, in India, marriage is governed by personal laws which are religion-based. Most of these laws define marriage as heterosexual.
Q5. Does opposing same-sex marriage mean disrespecting the third gender?
Not necessarily. This article distinguishes between identity and institution. It respects LGBTQIA+ identities while discussing concerns about redefining marriage.
