Author: Ishika Sharma, Lords University
ABSTRACT
Notwithstanding the progressive progress made in recognizing LGBTQ+ rights, same-sex marriage is still a controversial topic in India. The Supreme Court decriminalized homosexuality in its landmark ruling in Navtej Singh Johar v. Union of India (2018), but same-sex marriage’s legal standing is still unclear. This article examines the legal environment surrounding same-sex marriage in India by examining legislative obstacles, case law, constitutional clauses, and court rulings. While answering commonly asked questions about the topic, it also looks at the necessity of marriage equality from a human rights perspective.
INTRODUCTION
People have various rights and obligations as a result of marriage, which is a social and legal institution. Personal laws, such as the Muslim Personal Law, the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, primarily regulate marriage laws in India. These laws, however, do not specifically acknowledge same-sex partnerships, which leaves LGBTQ+ couples without legal protection.
The government has opposed such reforms, citing worries about traditional family structures and social norms, despite growing calls for the legalization of same-sex marriages.
Notwithstanding the legal obstacles, the Indian judiciary has been instrumental in advancing LGBTQ+ rights and laying the groundwork for upcoming court cases pertaining to marriage equality.
CONSTITUTIONAL AND LEGAL PROVISIONS:
Fundamental Rights and Same-Sex Marriage:
Part III of the Indian Constitution protects fundamental rights, some of which are pertinent to same-sex marriage:
Article 14 (Right to Equality): promotes equality before the law and forbids discrimination. This principle is broken when same-sex couples are denied the right to marry.
Article 19 (1)(a) (Freedom of Expression): includes the freedom to express one’s sexual orientation.
Article 21 (Right to Life & Personal Liberty): The Supreme Court’s interpretation of this article, which was maintained in Justice K.S. Puttaswamy v. Union of India (2017), includes the rights to autonomy, privacy, and dignity.
Lack of Legislative Recognition:
Same-sex marriages are not specifically permitted by Indian law, despite constitutional protections. The main rules governing marriage, like:
Marriage is defined by the Hindu Marriage Act, 1955 (HMA) as the union of a “bride” and a “bridegroom.”
Same-sex couples are implicitly excluded by the Special Marriage Act, 1954 (SMA), which regulates civil and interfaith marriages but uses gendered terminology.
Same-sex unions are not recognized by Muslim personal law.
Judicial Precedents and Case Laws:
Navtej Singh Johar v. Union of India (2018)
The Supreme Court invalidated Section 377 of the Indian Penal Code, decriminalizing homosexuality. The ruling highlighted each person’s right to autonomy, dignity, and love.
Shafin Jahan v. Asokan K.M. (2018)
A precedent for marriage equality was established when the Supreme Court affirmed the right to select a spouse under Article 21.
Deepika Singh v. Central Administrative Tribunal (2022)
A progressive stance toward acknowledging diverse relationships is demonstrated by the Court’s ruling that familial relationships must not be restricted to conventional ideas of marriage.
Supriyo Chakraborty v. Union of India (2023)
A landmark case requesting that same-sex marriages be recognized legally under the SMA. However, Parliament will have to decide whether to allow same-sex marriage after the Supreme Court ruled against it.
CHALLENGES AND LEGISLATIVE ROADBLOCKS
Government Opposition
On the grounds of cultural and traditional values, the Indian government has continuously opposed the legalization of same-sex romance. The Union Government has contended in a number of court cases that marriage is a customarily accepted union between a biological man and a biological woman. The government argues that Parliament, not the courts, should set the legal definition of marriage and that same-sex marriage is not a fundamental right.
In addition, the government has expressed concerns about how same-sex marriage will affect the current legal system, especially with regard to adoption, inheritance, and social welfare programs that are based on heterosexual family units. The government stressed in the Supriyo Chakraborty v. Union of India (2023) case that social norms should change gradually and that abrupt legalization of same-sex marriages could incite discontent among conservative segments of society.
Lack of Legislative Reforms
There haven’t been any official legislative attempts to change current marriage laws to recognize same-sex unions, despite increased awareness and support for LGBTQ+ rights. Same-sex couples find it challenging to obtain legal recognition because of the heteronormative definitions of marriage found in the Muslim Personal Law, the Hindu Marriage Act of 1955, and the Special Marriage Act of 1954.
Even though the Supreme Court has upheld LGBTQ+ rights in a number of historic rulings, the court has steered clear of outright legalizing same-sex marriage, leaving the matter to the legislature. However, any substantive legislative discussion on this issue has been halted due to a lack of political will. Politicians from all parties are still reluctant to discuss marriage equality for fear of conservative and religious backlash. LGBTQ+ couples still lack fundamental marital rights like joint property ownership, succession, and medical decision-making in the absence of a formal bill or amendment.
Societal and Religious Opposition
In India, marriage is closely linked to both culture and religion. Because they believe it violates traditional family values, many religious groups are against same-sex marriage. In addition to religious resistance, social stigma continues to be a significant obstacle. Families and communities frequently discriminate against LGBTQ+ people, and same-sex couples frequently face social rejection. Heteronormative expectations are further reinforced by the deeply ingrained Indian society’s idea of arranged marriages. Legal recognition notwithstanding, social resistance may persist in posing challenges to same-sex couples’ daily lives, such as exclusion from family inheritance, discrimination in the workplace, and housing discrimination.
CONCLUSION
Even though India has made great strides in LGBTQ+ rights, legal recognition of same-sex marriage is still elusive. While judicial rulings have broadened the scope of fundamental rights, legislative reforms are necessary to achieve full marriage equality. The lack of legal recognition impacts the rights of same-sex couples in areas such as inheritance, adoption, taxation, and medical decision-making. A progressive approach that strikes a balance between constitutional morality and societal evolution is essential to attaining marriage equality in India.
In addition to legal obstacles, same-sex marriage recognition is a question of equal citizenship, social acceptance, and human dignity. Although the judiciary has cleared the path for more expansive rights, full equality won’t be possible until society accepts a range of identities and legal frameworks are inclusive. Recognizing same-sex unions will guarantee that LGBTQ+ people have the same legal protections and social acceptance as their heterosexual counterparts, while also reaffirming India’s adherence to constitutional principles. Marriage equality may be a long way off, but it is a necessary step in India’s democratic transition.
FAQS
Is same-sex marriage legal in India?
No, India does not have legal recognition for same-sex marriages. Parliament will make a decision on the issue, according to the Supreme Court.
Can same-sex couples live together legally?
Yes, the right to privacy and dignity protects the ability to live together and build relationships.
Can LGBTQ+ couples adopt children in India?
Currently, the Juvenile Justice Act of 2015 only permits adoption by LGBTQ+ single people. For same-sex couples, joint adoption is prohibited.
Can same-sex couples inherit property from their partners?
Inheritance laws do not always apply to same-sex marriages because they are not recognized by the law. Partners are forced to rely on legal documents and wills.
What is the future of same-sex marriage in India?
The discussion and advocacy efforts are still going strong. Legislative action and changing court rulings are necessary for legal recognition.
