Marriage Equality and the Indian Constitution: A Legal Perspective

Author: Sanika Bhoite, PES Modern Law College, Pune



To the Point

Marriage is an institution like family or school; it provides basic rights such as inheritance, property, and adoption to individuals. In India, certain marriage Acts like the Hindu Marriage Act and Christian Marriage Act provide rights and responsibilities to people of particular religions.

Under Hindu law, marriage is considered a samskara — a sacred sacrament — and holds deep cultural value. In Muslim law it considered as contract for procreation of children’s

Just like Vasudhaiva Kutumbakam, India includes various castes and sub-castes. In such a diverse society, some people do not prefer sub-caste marriages. Hence, the Special Marriage Act was enacted for people from different communities. It provides rights and defines the procedure for registration of marriage and divorce proceedings.

When two people from different religions decide to marry, Indian law provides for it through the Special Marriage Act.
But what happens when two people of the same sex decide to marry…?
Does Indian law allow homosexuality?

This article is about just that.
Marriage is traditionally seen as the union of a man and a woman. After marriage, they are considered to complete each other. But in a changing society, marriage is also a union of families, thoughts, ideas, and religions.

The Indian Constitution provides basic rights like the right to equality, liberty, and freedom of speech and expression.

Before the 2018 judgment, homosexual relationships were criminalized under Section 377 of the Indian Penal Code, which punished “carnal intercourse against the order of nature” — interpreted to include gay sex, even between consenting adults in private.
The punishment could go up to 10 years in prison, or even life imprisonment in some cases.

Due to this, people from the LGBTQ+ community lived in fear and faced harassment and discrimination.
However, after the Supreme Court’s landmark decision in 2018, this part of the law was struck down, and now same-sex relationships between consenting adults are legal in India.


In heterosexual marriages, spouses automatically gain rights such as joint ownership of property, nomination in insurance and pension, and legal inheritance.
But since same-sex marriages are not legally recognized in India, LGBTQ+ couples do not enjoy these protections.

This legal gap means that one partner cannot automatically inherit property from the other unless a proper will is made.
In the absence of a will, succession laws based on personal religion (like the Hindu Succession Act or Indian Succession Act) apply — but they do not recognize same-sex partnerships.
This creates confusion and often denies LGBTQ+ individuals rightful claims to the property or assets of their deceased partners.

Even in terms of adoption, joint property rights, or next-of-kin status, LGBTQ+ persons are left in a legal vacuum, despite being full citizens under the Constitution.

Thus, while the Indian judiciary has upheld the right to dignity and identity, the laws regarding marriage, property, inheritance, and family rights still exclude LGBTQ+ individuals.

Challenges Before Same-Sex Marriage

Statutes like the Hindu Marriage Act, Special Marriage Act, and Muslim Personal Law assume marriage to be a union between a biological man and a woman. As a result, same-sex couples receive no legal recognition, which in turn denies them rights related to adoption, maintenance, inheritance, pension, and tax benefits.

Courts too have been cautious, often deferring the matter to Parliament.

Social resistance is the second major challenge. Indian society, heavily influenced by conservative traditions and religious beliefs, continues to stigmatize LGBTQ+ relationships.
Same-sex couples often face familial rejection, social boycott, and harassment, making it difficult for them to live openly, let alone seek marriage.

There is also a lack of political will. While the judiciary has taken a rights-based approach, legislative silence reflects the hesitation of lawmakers to engage with this sensitive topic.


The path to same-sex marriage in India is not just about changing laws — it is about changing minds.
Cultural resistance, traditional family norms, and the government’s “social chaos” argument pose challenges.
Yet, constitutional morality must override such objections.


It clarified that recognizing marriage is the role of Parliament, not the Court.
However, the Court did acknowledge LGBTQ+ rights, stating they deserve dignity, privacy, and protection from discrimination.
It protected the right to live together, but left it to Parliament to change the law if it wishes.

Use of Legal Jargon

Article 14: Right to Equality

Ensures equal treatment under the law. Denying same-sex couples the right to marry, while granting it to heterosexual couples, creates an unequal classification based on sexual orientation.

Article 15: Prohibition of Discrimination


Denying marriage rights to same-sex couples constitutes discrimination under this Article.

Article 21: Right to Life and Personal Liberty
. Denying this to same-sex couples violates the freedom to form intimate relationships and family units.

Section 377 (IPC)

A colonial-era law that criminalized homosexual acts under the term “unnatural sex.”


The Proof

“As per the Ministry of Health and Family Welfare, over 2.5 million homosexual men were identified in India (2012).
The Census 2011 recorded nearly 5 lakh transgender persons, though real numbers may be higher due to social stigma.
Surveys like Ipsos (2023) estimate that over 17% of India’s population may identify as LGBTQ+.
These figures highlight the urgent need for legal recognition of same-sex partnerships to uphold the values of equality and dignity.”

Abstract

This article examines the current legal status of same-sex marriage in India and the broader rights of the LGBTQ+ community. While the Supreme Court decriminalized homosexuality in 2018, same-sex unions still lack legal recognition.
The 2023 verdict upheld the right to dignity but left marriage rights to the legislature.
The article highlights challenges in property, inheritance, and succession, and argues that without full legal recognition, true equality under Articles 14, 15, and 21 remains incomplete.
It calls for inclusive legal reforms to ensure equal rights for all.

Case Laws

Navtej Singh Johar v. Union of India (2018)
Decriminalized Section 377, recognized sexual orientation as protected under the Constitution, and upheld LGBTQ+ dignity.


Supriyo v. Union of India (2023)
While refusing to grant marriage rights, the Supreme Court recognized the right to cohabit and emphasized equal treatment under law.


NALSA v. Union of India (2014)
Recognized gender identity and sexual orientation under constitutional protection — crucial for arguments on marriage equality.

Conclusion

India has taken its first steps—by decriminalizing love, it unshackled millions from silence.
But the journey from “decriminalization” to “recognition” is far from over.

When two individuals of the same gender can live together with dignity but can’t marry, inherit, or adopt together, the law speaks in half-truths.

A Constitution that promises equality, liberty, and dignity must not stop at tolerance — it must embrace inclusion.
The denial of marriage rights is not just a legal gap, but a message that some loves are still “less equal” than others.

FAQS

Is public support for same-sex marriage increasing in India?
Yes. Surveys like the Ipsos Global Pride Survey 2023 show increasing support, especially among urban youth. However, social stigma remains strong in rural areas.

What rights do LGBTQ+ people have in India?
They have the right to privacy, dignity, and non-discrimination, but not full rights in marriage, adoption, property, or inheritance.

Is same-sex marriage legal in India?
No. The Supreme Court in 2023 clarified that only Parliament can change the law to recognize same-sex marriages.

Can same-sex couples adopt children in India?
Currently, joint adoption is not permitted. Only single LGBTQ+ individuals may adopt, depending on the law.