By Arjun Singh
Invertis University, Bareilly
To the Point
Marriage is a legal institution that gives many civil rights, such as inheritance, adoption, taxation, and medical consent. However, in India, the law still does not recognize same-sex marriages. Although the Supreme Court in Navtej Singh Johar v. Union of India made homosexuality legal, LGBTQ+ couples still cannot marry. This lack of recognition goes against key constitutional principles in Article 14 (Equality), Article 15 (Non-discrimination), and Article 21 (Right to Life and Personal Liberty). The Indian legal system needs to go beyond just decriminalization and take on a rights-based approach to marriage equality.
Abstract
Same-sex marriage has become one of the most important human rights issues in India and around the world. While more than 30 countries, including the U.S., Canada, and South Africa, recognize same-sex marriage, Indian laws still focus on traditional heterosexual models. This article looks at the constitutional and international aspects of marriage equality. It examines key court decisions, legal principles, and the impact of slow progress in legislation. It argues that denying same-sex couples the right to marry goes against the principles of liberty, dignity, and non-discrimination protected by the Indian Constitution.
Use of Legal Jargon
The legal discussion on same-sex marriage involves several constitutional principles:
• Transformative Constitutionalism: As established in Navtej Johar, the Constitution should be interpreted flexibly to meet society’s changing needs, including LGBTQ+ rights.
• Equality Before Law and Equal Protection (Article 14): Any law that treats same-sex couples differently from heterosexual couples without a good reason goes against the equality clause.
• Substantive Due Process: Recognized in Justice K.S. Puttaswamy v. Union of India, it requires that government actions respect liberty and privacy, even beyond just following procedures.
• Non-Arbitrariness Doctrine: The government cannot deny marriage rights without justification, especially when those rights are essential to dignity and individual freedom.
India’s failure to grant same-sex marriage rights can also be seen as a “constitutional omission,” where rights are accepted in theory but denied in practice. Moreover, public morality is often cited as a reason to deny these rights. However, courts have ruled that constitutional morality should take precedence over majority opinion.
The Proof
Several legislative gaps prevent same-sex couples from enjoying full citizenship rights.
• The Special Marriage Act, 1954 provides a secular framework for interfaith and civil marriages, but it does not include same-sex couples.
• The Hindu Marriage Act, 1955 and Muslim personal laws define marriage as a union between a man and a woman.
• Adoption laws, such as the Juvenile Justice Act, are unclear about whether same-sex couples can adopt.
• Medical consent, next-of-kin rights, and property succession all depend on marital status, which leaves same-sex partners legally invisible.
Even after decriminalizing same-sex relations, there has been no law passed to give marriage or family rights to queer individuals. This lack of laws exposes LGBTQ+ couples to arbitrary state actions and social exclusion.
Case Laws
1. Navtej Singh Johar v. Union of India (2018) 10 SCC 1
• The SC invalidated Section 377 IPC. It held that homosexuality is not a crime. The judgment emphasized dignity, privacy, and individual autonomy as key parts of Article 21.
2. Justice K.S. Puttaswamy v. U.O.I (2017)
• The court acknowledged that privacy is a fundamental right. It set the stage for LGBTQ+ rights.
3. Supriyo v. Union of India (2023)
• A constitutional bench refused to legalize same-sex marriage, stating that this is a matter for Parliament. However, the Court affirmed the right of queer couples to live together and directed governments to avoid discrimination.
4. Obergefell v. Hodges, 576 U.S. 644 (2015) (U.S. Supreme Court)
• The Court held that same-sex marriage is a fundamental right under the U.S. Constitution. It emphasized that denying marriage equality violates due process and equal protection.
5. Minister of Home Affairs v. Fourie, CCT 60/04 (South Africa, 2005)
• The court acknowledged that privacy is a fundamental right. It set the stage for LGBTQ+ rights.
Conclusion
Same-sex marriage is not just a symbolic issue. It is a crucial question of legal recognition, equal protection, and human dignity. India’s constitutional framework, when considered alongside Navtej Johar and Puttaswamy, clearly supports including LGBTQ+ individuals in marriage. However, courts alone cannot create lasting change. The legislature needs to take action to amend laws or create a gender-neutral marriage law under the Special Marriage Act. Until that happens, LGBTQ+ citizens remain second-class in the eyes of the law.
FAQ
Q: Is same-sex marriage legal in India?
A: No, same-sex marriage is not legally recognized in India, but homosexuality is no longer a crime.
Q: Can same-sex couples adopt children in India?
A: Adoption laws are unclear. Most agencies and courts do not permit joint adoption by same-sex couples.
Q: What rights do LGBTQ+ couples have in India?
A: They can live together and form personal relationships, but they do not have marriage-related rights like inheritance, insurance, tax benefits, and legal guardianship.
Q: Are there any legal petitions for same-sex marriage?
A: Yes, several petitions were heard by the Supreme Court in 2023, but the Court left the decision up to Parliament.
Q: What is the global trend on same-sex marriage?
A: More than 35 countries, including the U.S., UK, South Africa, and Canada, have legalized same-sex marriage. India has not followed this trend yet.
