Author: Nimisha Anuragi, Dharmashastra National Law University, Jabalpur
To the Point
The legalization of same-sex marriage in India presents several legal impediments related to inheritance rights, adoption laws, taxation, property ownership, and social security benefits. Despite the decriminalization of homosexuality under Section 377 of the Indian Penal Code (IPC), same-sex couples continue to face significant legal disabilities that prevent them from accessing the same rights and privileges available to heterosexual unions. This article explores the core legal complexities that hinder the full recognition of same-sex marriage in India.
Abstract
The legalization of same-sex marriage in India remains a jurisprudential conundrum despite the landmark decision in Navtej Singh Johar v. Union of India (2018), which decriminalized consensual same-sex relations. However, the absence of statutory recognition of same-sex marriages continues to present substantial legal challenges, particularly in the domains of succession, adoption, tax benefits, and property rights. This article identifies and analyses the legal barriers that prevent same-sex couples from accessing fundamental rights typically conferred by marital status under Indian law, arguing that comprehensive legislative reform is necessary for inclusivity and equality under the Indian Constitution.
Introduction
The Supreme Court’s ruling in Navtej Singh Johar v. Union of India (2018) marked a pivotal moment in India’s constitutional jurisprudence by decriminalizing unnatural sexual acts under Section 377 of the IPC. While this decision was hailed as a victory for LGBTQIA+ rights, it did not extend to the recognition of same-sex marriages, leaving unresolved legal issues in areas such as succession law, family law, and tax law. The lack of statutory recognition for same-sex marriages has resulted in various legal disabilities, denying same-sex couples access to the benefits accorded to heterosexual married couples. This article delves into these legal predicaments, highlighting the need for judicial and legislative intervention to rectify these anomalies.
Legal Problems in Same-Sex Marriage Recognition
The denial of legal recognition for same-sex marriages leads to several complications in various areas of law. The most pressing issues relate to inheritance, adoption, taxation, and property ownership, all of which are fundamentally tied to the legal institution of marriage.
1. Inheritance Rights
In India, personal laws relating to inheritance vary according to religion, but they all recognize marriage as a precondition for inheritance rights. The absence of legal recognition for same-sex marriages means that same-sex couples do not have the right to inherit property from each other. Under Indian succession laws, including the Indian Succession Act, 1925, and the Hindu Succession Act, 1956, only legally recognized spouses can inherit property from their partner.
In cases where a same-sex partner dies intestate (without a will), the surviving partner has no automatic right to claim inheritance, as there is no legal recognition of their marriage. This situation exposes the surviving partner to financial and legal challenges, as they may need to go through lengthy and costly court proceedings to claim any property or assets.
Furthermore, since same-sex couples cannot legally marry, they may also encounter difficulties in making wills that provide for their partner’s inheritance. In the absence of a will, the law treats the surviving partner as a stranger, depriving them of inheritance rights.
2. Adoption and Parental Rights
Adoption is another major legal challenge faced by same-sex couples. In India, the adoption laws under the Hindu Adoption and Maintenance Act (HAMA), 1956, and the Juvenile Justice (Care and Protection of Children) Act, 2015, do not recognize same-sex couples as eligible to adopt children. These laws only recognize heterosexual couples as prospective adoptive parents.
This legal exclusion prevents same-sex couples from building families through adoption. It also denies them parental rights and responsibilities. Even if a same-sex couple is already raising children, the non-recognition of their marriage means that one partner may have no legal rights over the child in the event of the biological parent’s illness, death, or incapacity. The non-recognition of parental rights further complicates matters for same-sex couples in areas like custody, guardianship, and medical decision-making for their children.
3. Property Ownership and Joint Ownership
Property rights are another area where same-sex couples are disadvantaged by the lack of legal recognition for their relationships. In India, married couples are entitled to jointly own property, enjoy tax benefits, and transfer property to one another in a legally recognized manner. Same-sex couples, however, cannot access these legal protections and benefits.
Without the recognition of marriage, same-sex couples face significant legal hurdles in jointly owning property. For instance, banks and financial institutions may refuse to jointly recognize a same-sex couple in property transactions or mortgage applications, even if both partners contribute equally to the purchase. Additionally, in the event of the death of one partner, the surviving partner may face difficulties in transferring property or rights, as the relationship is not legally recognized.
Moreover, in case of a dispute between same-sex partners over jointly held property, legal recourse can become complicated as the court may not recognize the relationship, leading to potentially costly legal battles.
4. Social Security and Healthcare Benefits
Marriage is often a gateway to several social security and healthcare benefits, including access to health insurance, tax exemptions, pension benefits, and the ability to make medical decisions for a partner. Same-sex couples in India, however, are denied these rights due to the lack of legal recognition for their marriages.
For instance, under various employee welfare schemes, including those in the public and private sectors, married couples are often provided with health insurance, dependent benefits, and pensions. Without legal recognition of their relationship, same-sex couples cannot access these benefits, leading to disparities in healthcare and social security rights.
Furthermore, in situations where one partner is critically ill, the non-recognition of their relationship means that the surviving partner may have no legal right to make medical decisions on their behalf, even if they have been living together for years.
5. Taxation and Financial Rights
Legal recognition of marriage grants spouses several financial benefits, including tax exemptions, joint filing of income tax returns, and eligibility for certain tax deductions. Same-sex couples are currently excluded from these benefits. This can lead to higher tax liabilities for same-sex couples, as they are forced to file individually and cannot benefit from exemptions available to legally married couples.
In addition, the lack of marriage recognition also prevents same-sex couples from taking advantage of the many financial benefits afforded to married couples, such as joint property ownership, shared tax benefits, and inheritance tax exemptions.
Case Laws
Navtej Singh Johar v. Union of India (2018)
The decriminalization of homosexuality in the Navtej Singh Johar case marked a significant step toward equal rights for LGBTQIA+ individuals in India. The Supreme Court struck down Section 377 of the IPC, which criminalized consensual same-sex relations between adults. The ruling, however, did not extend to marriage equality, and the issue of legalizing same-sex marriage remains unresolved.
Subsequent cases, such as Deepika Singh v. Central Administrative Tribunal (2022), have expanded the definition of “family” under Indian law to include same-sex couples, granting them certain legal protections.
However, the Supriyo v. Union of India (2023) case did not grant a right to marriage, civil union, or adoption for same-sex couples under existing law. Instead, it placed the onus on Parliament and the Cabinet to pass legislation defining the rights of same-sex couples.
K.S. Puttaswamy v. Union of India (2017)
In Puttaswamy, the Supreme Court declared the right to privacy as a fundamental right, which includes the right to make personal decisions regarding sexual orientation and relationships. Although the ruling did not directly address same-sex marriage, it affirmed the principle of individual autonomy, setting the stage for future challenges to laws that restrict the rights of LGBTQIA+ individuals.
Conclusion
The legalization of same-sex marriage in India presents complex legal, social, and political challenges. While India has made significant progress, particularly with the decriminalization of homosexuality, the full recognition of same-sex marriages faces numerous obstacles. Legalizing same-sex marriage is crucial to ensuring equality for LGBTQIA+ individuals, particularly in areas such as inheritance, adoption, and social security. For true equality to be achieved, both judicial and legislative reforms are required to protect the rights of LGBTQIA+ couples and to challenge the cultural and societal norms that perpetuate discrimination.
FAQS
1. Can same-sex couples inherit property in India?
Without legal recognition of marriage, same-sex couples are excluded from inheritance rights under the Indian Succession Act and personal laws. They may face difficulties in claiming property without a will or legal standing.
2. Are same-sex couples allowed to adopt children in India?
Currently, same-sex couples are not permitted to adopt children under Indian law. Adoption laws only recognize heterosexual couples as eligible parents.
3. Does decriminalizing homosexuality guarantee same-sex marriage?
No, decriminalizing homosexuality does not automatically grant marriage rights. The legalization of same-sex marriage requires legislative changes to explicitly recognize such unions.
Bibliography
Navtej Singh Johar v. Union of India, 2018 SCC 1.
K.S. Puttaswamy v. Union of India, 2017 10 SCC 1.
Bhatia, M. (2019). “The Politics of Same-Sex Marriage in India.” Indian Journal of Constitutional Law, 25(3), 178-202.
Prakash, S. (2018). “The Struggle for Marriage Equality in India.” Journal of Human Rights, 29(2), 111-130.
Singh, R. (2020). “LGBTQIA+ Rights and Legal Reform in India.” Journal of Indian Law and Society, 32(1), 99-116.
Indian Succession Act, 1925, Act No. 39 of 1925.
Hindu Succession Act, 1956, Act No. 30 of 1956.
