AUTHOR : VAISHNAVI TRIPATHI, ARYA KANYA DEGREE COLLEGE, UNIVERSITY OF ALLAHABAD, PRAYAGRAJ.
TO THE POINT
Same- sex marriage as been longstanding issue in India, reflecting the complex intersection of constitution rights, social justice and evolving societal norms. Same sex marriages are common in various countries but it is still illegal in India. In 2018, gained partial legal recognition which decriminalized homosexal relationships in India. Again in 2023 some questions took up about same sex marriage but ultimately deferred the issue to parliament. There are many homosexual couples who are struggling in the society and couples country for recognition of their marriage but their love, choice and their right to choose the partner are suppressed and abandoned for the sake of pride of family and societal norms. Its rooted discrimination, ruined mental health which caused suicide especially in youths. Same sex marriage is the issue of right to life which is fundamental right of the citizen in India which cannot be prevail by anyone. And this is the issue of all homosexual couples which come under LGBTQAI+ and the government is not doing justice to them. By the examine the relevant cases and discussing the potential reforms, this article aim to provide a key aspect of the legal landscape of same sex marriage and how to resolve the problem of same sex marriage which work towards the dignity of the homosexuals.
ABSTRACT
India’s judicial journey on LGBTQAI+ ( Lesbian, Gay, Bisexual, Transgender, Queer/Questioning, Intersex, Asexual and +) rights took significant turn in post 2018 when Section 377 of IPC ( Indian Penal Code) means “Unnatural Offence” which is historically used to criminalized : Homosexual relationships ( even if consensual ) , Non- vaginal intercourse , Any Sexual act for procreation. Post 2018 verdict legalization of homosexual sex. However, non- consensual sex and sex with animals still remain punishable under this section . While this is a positive step toward parliamentary action. But it is vacuous of civil life and marital life. The 2023 verdict disappointed many and activated the primacy of the legislature in matters of personal law.This article delves with the post- verdict terrain- marked by the legal vacuum of advocacy and judicial deference. While the judiciary reaffirmed the equal dignity of queer relationship. By the analysing the relevant cases and discussing the potential reforms this article aim to provide key aspect of the legal landscape of same sex marriage and how to give a dignified life in the society which promote “Unity In Diversity”.
USE OF LEGAL JAGRAN
Homosexual couples face profound challenges in India. Indian Constitution guarantees the Fundamental rights of the citizen. But judgement on same sex marriage prevail the rights of the homosexual couples like Article 14 ( equality before law), Article 15 (prohibition of discrimination), which invoke activists to argue for equal treatment under family and matrimonial laws. Article 19 (freedom of speech and expression, among others), Article 21 ( right to life and personal liberty) which followed the landmark case, Justice K.S.Puttaswamy v. Union of India’ s decision has been explained to include the right to life with dignity and to make personal choices regarding relationships and marriages.
Constitutional morality must be upheld by the courts even if it contradicts with religious morality. It plays an important role in protecting minority rights, including LGBTQAI + rights.
Special Marriage Act, 1954, a secular status that allows civil marriages across the castes and religion. Petitioners sought an inclusive reading to permit same sex marriages, but the court denied.
Transformative constitutionalism encourages an evolving explanation of the constitution to promote social justice, needs of current circumstances done by the Parliament of India like right to privacy, etc.
The Supreme Court determined the term Queer Platonic Union ( QPU) to recognize non- marital, emotionally committed queer relationships. It signals symbolic acceptance but lack of the legal rights and protections of marriage.
Judicial Review is the authority of the Court of India to examine the constitutionality of the laws or executive action. It enabled the decriminalization of homosexuality in Navtej Singh Johar (2018) by striking down parts of Section 377 of IPC.
THE PROOF
The legal journey of same sexma rights in India grounded in the Constitutional Interpretation, Judicial Precedent, International Human Rights Frameworks. From the 2023 verdict in Supriyo @ Supriya Chakraborty v. The Union of India was not recognized by the law. It recognized the discrimination was done against minorities ( same sex couples) which is still going on today, it reaffirmed the judicial precedent of constitutional principles . In the case of Navtej Singh Johar v. Union of India (2018). Fundamental Rights are violated by denied of marriage violates equality before law (Article 14), discrimination on the basis of sex and sexual orientation is unconstitutional (Article 15), suppressing expression of identity violates freedom of speech and expression (Article 19 (1)(a)), Marriage, partnerships, and family are the integral part of the right to life personal liberty which is violated by the verdict of the Supreme Court.
However, the absence of legal recognition for same-sex marriage leaves LGBTQIA+ couples in a vulnerable position, denying them access to critical civil rights such as joint adoption, inheritance, taxation benefits, pension, health insurance, and government beneficiary policies. These rights are intrinsically tied to the institution of marriage, and the refusal to extend them results in practical hardships and social invisibility. Globally, there is substantial precedent for recognizing marriage equality as a constitutional and human rights issue. In the United States, the Supreme Court’s decision in Obergefell v. Hodges (2015) established that same-sex couples have a constitutional right to marry under the Fourteenth Amendment. Similarly, South Africa’s Constitutional Court, in Minister of Home Affairs v. Fourie (2005), ruled that excluding same-sex couples from marriage violated their rights to equality and to live dignified life . Taiwan, in a landmark move, legalized same-sex marriage in 2019, becoming the first country in Asia to do so. In 2023, Nepal’s Supreme Court issued interim orders directing the state to register same-sex marriages, pending the passage of a formal law.
International human rights instruments also lend strong support to the cause. The United Nations Human Rights Council has repeatedly emphasized that LGBTQIA+ rights are integral to the broader framework of human rights. The Yogyakarta Principles (2007), which interpret existing international human rights law in relation to sexual orientation and gender identity, clearly state that all people — regardless of their sexual orientation — have the right to found a family and enjoy equal access to civil marriage. These principles, while not legally binding, serve as persuasive moral and legal guidance for nation-states around the world.
Despite these evolving legal standards globally, India’s legal system currently fails to provide an inclusive statutory framework for same-sex couples. Personal laws rooted in religion — such as the Hindu Marriage Act, 1955, or Muslim personal law — do not recognize same-sex marriages, and civil laws like the Special Marriage Act, though secular, are interpreted in strictly heterosexual terms. This statutory exclusion, paired with the judiciary’s reluctance to intervene, underscores a significant gap between the spirit of the Constitution and the lived legal reality of LGBTQIA+ individuals in India. The need for legislative intervention is therefore both urgent and constitutionally justified. Parliament must rise to its constitutional responsibility and enact laws that reflect the evolving understanding of gender, sexuality, and human dignity in contemporary India.
CASE LAWS
The legal journey of LGBTQIA+ rights in India and around the world is shaped by landmark judicial decisions that have emphasized dignity, equality, and the evolving nature of constitutional interpretation. These case laws not only offer judicial validation of same-sex rights but also serve as compelling precedents to argue for marriage equality.
1. Navtej Singh Johar v. Union of India (2018)
Citation: (2018) 10 SCC 1
This historic judgment by a five-judge Constitution Bench of the Supreme Court of India decriminalized consensual same-sex relationships by reading down Section 377 of the Indian Penal Code. The Court held that Section 377, to the extent it criminalized consensual sexual conduct between adults of the same sex, was unconstitutional. The decision rested heavily on the principles of equality, dignity, and privacy enshrined in Articles 14, 15, and 21 of the Constitution. The Court recognized that sexual orientation is an intrinsic part of identity and that criminalizing it violates the essence of constitutional morality. Justice Indu Malhotra notably remarked that “history owes an apology to the members of the LGBTQ community and their families”.
2. Supriyo @ Supriya Chakraborty v. Union of India (2023)
Citation: Not yet officially reported (5-Judge Constitution Bench, October 17, 2023)
This case involved a batch of petitions seeking recognition of same-sex marriage under the Special Marriage Act, 1954. The petitioners argued that the denial of marriage rights amounted to unconstitutional discrimination under Articles 14, 15, and 21. The Court delivered a mixed verdict: while it recognized that queer couples have a right to form unions and cohabit, it stopped short of legalizing same-sex marriage, stating that such recognition must come through legislative means. The Chief Justice of India, DY Chandrachud, emphasized that the LGBTQIA+ community must not be invisible in law and that the Constitution protects their relationships, but the bench was divided on whether the judiciary could reinterpret the SMA to include same-sex couples
3. Minister of Home Affairs v. Fourie (2005) – South Africa
Citation: [2005] ZACC 19
In this transformative ruling, the Constitutional Court of South Africa declared that the common law definition of marriage, which excluded same-sex couples, was unconstitutional. The Court found that such exclusion infringed on the rights to equality and dignity as guaranteed under the South African Constitution. The Court gave Parliament a year to enact legislation allowing same-sex marriage, which led to the passage of the Civil Union Act, 2006—making South Africa the first country in Africa to legalize same-sex marriage.
4. Sunil Babu Pant & Others v. Nepal Government (2007)
Citation: Supreme Court of Nepal
In this landmark decision, the Supreme Court of Nepal ruled in favor of legal protections for sexual and gender minorities. The Court directed the government to draft laws that would allow for same-sex marriage and recognized the fundamental rights of LGBTQ individuals, including their right to identity, dignity, and equal treatment under law. In 2023, the Court issued interim orders allowing the registration of same-sex marriages, pending the passage of formal legislation.
5. NALSA v. Union of India (2014)
Citation: (2014) 5 SCC 438
This Indian Supreme Court judgment granted legal recognition to transgender persons as the ‘third gender’. Though not about marriage directly, it established that gender identity is an essential aspect of personal freedom and dignity under Article 21. It paved the way for a broader understanding of gender and sexual orientation under constitutional laws.
CONCLUSION
The legal battle for same-sex marriage in India is far from over. While the judiciary has made important strides in recognizing the dignity and identity of queer individuals, it has fallen short of extending full legal recognition to their relationships. The 2023 verdict in Supriyo @ Supriya Chakraborty v. Union of India reaffirms the constitutional right to love, cohabit, and form unions, but simultaneously exposes the limitations of relying solely on courts for social justice. In doing so, it places the onus on the legislature to frame laws that reflect the lived realities of the LGBTQIA+ community.
It is important to understand that marriage is not just a social institution—it is also a legal gateway to several rights such as adoption, inheritance, taxation, medical decision-making, and more. Denying these rights to same-sex couples perpetuates systemic inequality and undermines the very essence of constitutional values like equality, liberty, and dignity. To bridge this gap, Parliament must initiate inclusive legal reform, possibly by amending the Special Marriage Act, 1954, or enacting a new gender-neutral marriage law.
Additionally, public institutions and civil society must work together to reduce the stigma attached to queer identities. Legal reforms, while essential, must be accompanied by awareness campaigns, educational reforms, and sensitization programs aimed at transforming societal attitudes. Lessons can be drawn from countries like South Africa, Taiwan, and even Nepal, where a combination of judicial insight and legislative will has created more inclusive legal systems.
Ultimately, a democracy must not only protect the rights of the majority but must also ensure justice for those at the margins. The spirit of the Constitution lies in its ability to protect freedoms—even when they challenge social conventions. India must now decide whether it wants to remain a silent observer or emerge as a leader in upholding the universal values of equality and human dignity.
FAQs
Q1: What does LGBTQIA+ stand for?
Ans: LGBTQIA+ is an inclusive acronym that represents a broad spectrum of sexual orientations and gender identities. It stands for Lesbian, Gay, Bisexual, Transgender, Queer or Questioning, Intersex, Asexual or Agender, and the “+” signifies other diverse identities such as pansexual, non-binary, genderfluid, and more. This term recognizes that human experiences of gender and sexuality are varied and complex, and it promotes respect, dignity, and equal rights for all people, regardless of how they identify or whom they love.
Q2: Is same-sex marriage legal in India after the 2023 Supreme Court verdict?
Ans: No, same-sex marriage is not yet legal in India. The Supreme Court, in the Supriyo v. Union of India verdict (2023), acknowledged the right of same-sex couples to form unions and live together but clarified that it is for the Parliament to make laws granting legal recognition to such marriages.
Q3: What rights do same-sex couples currently have in India?
Ans: While same-sex couples can cohabit without criminal consequences, they lack legal recognition in areas like adoption, inheritance, taxation, medical consent, and next-of-kin status. Their unions are not protected by any existing marriage or civil union law.
Q4: Why did the Supreme Court not legalize same-sex marriage in 2023?
Ans: The Court chose judicial restraint, stating that interpreting or rewriting the Special Marriage Act to include same-sex couples would exceed the judiciary’s role. It urged Parliament to consider the issue and enact suitable legislation.
Q5: Can same-sex couples adopt children in India?
Ans: As of now, same-sex couples do not have the legal right to adopt children jointly in India. Adoption laws like the Juvenile Justice Act and guidelines of the Central Adoption Resource Authority (CARA) are interpreted in a way that excludes queer couples.
Q6: What legal reforms are needed for same-sex marriage in India?
Ans: The most direct reform would be an amendment to the Special Marriage Act, 1954, making it gender-neutral. Alternatively, Parliament could enact a new law that specifically recognizes and protects same-sex unions with all the rights and obligations of marriage.
Q7: What is “constitutional morality” and why is it relevant here?
Ans: Constitutional morality refers to the values embedded in the Constitution—like justice, liberty, and equality—over and above social or religious norms. It guides the judiciary to protect individual rights, especially those of minorities. It is central to arguments in favor of legalizing same-sex marriage.
