Legalisation Of Same-Sex Marriage In India, Thoughts And Perspectives

Author: LawSphereX

Category: Family & Personal Law

Published: 2026-08-23T20:32:17.963595+00:00

Updated: 2026-08-26T17:10:38.221+00:00

LEGALISATION OF SAME-SEX MARRIAGE IN INDIA,

THOUGHTS AND PERSPECTIVES

Ishita Garg & Kanishka Singal, Jindal Global Law School

ABSTRACT

Same-sex marriages have been considered a vital issue globally. This makes it essential to understand the legality of these marriages in Indian society because they impact not only the couple but also the whole society. This paper has discussed a brief history of same-sex marriages, its advocacy in India, its hearing updates, challenges faced by homosexual couples, a brief comparative analysis with South Africa, and thoughts and opinions. It is essential to recognize same sex marriage in modern India and contend that it is a choice to pursue happiness rather than a crime. But it will take some time for society to accept and adjust to this development. In this paper, we recommend that India has the option to either enact legislation or modify the current statutes to acknowledge unions between individuals of the same gender identity.

Keywords: homosexuals, same-sex marriages, legalization, criminalization, sexual behavior.

INTRODUCTION

India, a democratic nation, has only recently and imperfectly acknowledged the value of the LGBTQIA+ community. The term "LGBTQ" encompasses a wide spectrum of people who do not conform to the heteronormative definitions of gender and sex. The acronym is sometimes used with a plus sign (+) to denote that the collective is not all-inclusive because there is no official definition for the phrase. Nonetheless, lesbian, gay, bisexual, transgender, and queer individuals are included in the phrase. It refers to sexuality as well as gender. Gay, lesbian, and bisexual identities are sexual orientations; on the other hand, transgender identity is a gender that does not correspond with the binary of male and female. The word "queer" is generally used to describe a group's "queerness. " The phrase includes other concepts like intersex, asexuality, etc.

1 Understanding gender and sexuality as facets of human life is necessary for understanding this complex concept. This group seeks to establish their own characters within the sex and sexuality continuum and questions the heteronormative standard that has become the de facto norm. The societal infusion of moral good and wrong and the idea that it was immoral coexisted with this legal restriction. Morality, coupled with a religious perspective of what happens after death, caused society to question such customs and blatantly deprive them of all decency and humanity. This kind of thinking was established in society, and even after independence, the Indian Penal Code, and Section 377 were still part of the legal code. The British, who instituted such a legislative provision, revoked it in their own country in 1967, but the struggle persisted in India until 2018. 2

HISTORY

The existence of homosexuality in India since the beginning of time is proven by references to it in several writings and carvings on cave or temple walls. The phrase "tritiya-prakriti," for instance, is used by the Kamasutra to designate individuals with gay urges and to explain their behaviors in great detail. Lesbian, bisexual, transgender, and intersex individuals are all covered.3 1 Deepali. M. Babar, Homosexualty and Same-Sex Marriages: Need for Legislation, Pen Acclaims (Nov.7,2019, 12:30pm)

2 Saif Rasul Khan, ‘SAME-SEX RELATIONSHIPS AND MARRIAGE IN INDIA: THE PATH FORWARD’, Melbourne Law

School (Dec.6,2021, 12:32pm) hQps://law.unimelb.edu.au/ data/assets/pdf_file/0010/3967444/Khan_Saif- Rasul.pdf/

3 Id.

1. "Homosexuality" is also mentioned in the Sushrita Samhita and the Charaka.

2. The Ramayana and the Mahabharata

3. Manusmriti and Arthasashtra

4. The Khajuraho temple in Madhya Pradesh, India's Chhatarpur area, contains several

scriptures that depict depictions of gay Also, during the Mughal era, it was a crime. It was made a crime under the British occupation of India u/s 377 of the Indian Penal Code, 1860. “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable for a fine,” states Sec.377 of the Indian Penal Code, 1860.4

ADVOCACY OF LEGALISING HOMOSEXUAL MARRIAGE IN INDIA

The term "LGBTQ" encompasses a wide spectrum of people who do not conform to the heteronormative definitions of gender and sex. The acronym is sometimes used with a plus sign (+) to denote that the collective is not all-inclusive because there is no official definition for the phrase. Nonetheless, lesbian, gay, bisexual, transgender, and queer individuals are included in the phrase. It refers to sexuality as well as gender. Gay, lesbian, and bisexual identities are sexual orientations; on the other hand, transgender identity is a gender that does not correspond with the binary of male and female. Naz Foundation v. NCT Delhi Government In this landmark decision, the Delhi High Court declared that Section 377 of the Indian Penal Code was unconstitutional. As a result of the NGO's public interest lawsuit, the ruling made it possible for the British laws to be reviewed in court.

The court determined that the rights

4 Babar (n 1)

outlined in Articles 14, 15, and 16 of the Indian Constitution, all of which are based on the concept of equality had been violated. 5 NALSA v. Union of India In order to offer a clear statute that would promote their rights, legislative modifications were undertaken after that. The Transgender Persons (Protection of Rights) Act of 2019, the consequence of protracted deliberations and multiple measures that were submitted was passed in 2019. 6 The law is substantial, and it does have some benefits, but it has a major drawback in that it requires everyone to be recognised as "transgender" based only on an identification certificate granted by a district magistrate, which interferes with administrative operations. When you consider how delicate the subject is, this is a serious problem. 7 Justice (Retd. ) K. S. Puttaswamy v.

Union of India According to this ruling, the right to privacy is a fundamental feature of an individual's life and is guaranteed to all people, regardless of gender or sexual orientation, as per this verdict that acknowledged it as a component of the right to life and liberty provided by Article 21. “The LGBTQ community should have the right to privacy, including autonomy and independence from government interference, Justice Chandrachud noted in the ruling. 8 There was a particular comment made regarding the liberty and freedom of sexual activity in addition to the freedom to choose partners. The Court found that the fundamental rights guaranteed by Articles 14 (right to equality), 15 (discrimination on the basis of sex), and 21 (right to life and personal liberty) of the Constitution protection is central to the right to privacy and protection of sexual orientation.

This decision was a fundamental component of the groundbreaking Navtej Johar case. Navtej Singh Johar v. Union of India The historic removal of Section 377 has made homosexuality lawful in India. The court's decision rendered the section unconstitutional since it prohibited voluntary sexual intercourse 5 Jaideep Singh Randhawa, NAZ Founda^on v/s. Govt. of NCT of Delhi, Probono-India (Sep. 11,2020, 12:35pm),

6 NALSA v. Union of India, 5 SCC 438 (Supreme Ct. India 2014)

7 Id.

between two consenting adults, in violation of Articles 14, 15, and 19(1)(a) of the Constitution. Invoking the Putta Swamy ruling, the right to a dignified existence as well as the freedom of autonomy and personal choice were recognized. 9 Abhijit Iyer Mitra case: Whether same-sex unions are permitted in India under the Hindu Marriage Act and the Special Marriage Act is the matter at hand. In view of the decriminalization and subsequent recognition of same-sex partnerships, the petitioner argues that the state ought to address the cause and adhere to the international norms and accords to which India is a party. In response, Attorney General Tushar Mehta argues that any judicial interference would completely destroy the individuality of the simple equilibrium of personal law because, according to Hindu law, the word "spouse" can only refer to a man and a woman.

According to the federal government, homosexual partnerships are not necessarily granted the right to marry simply because Section 377 was decriminalized. Owing to the spiritual essence of matrimony and its foundation in Indian customs, ethos, and social values, the government and legislature must consider same-sex marriage rights rather than courts when making decisions on it. 10

HEARING UPDATES

Two homosexual couples have filed a legal case in the Supreme Court is asking for acknowledgment of same-sex marriage through the Special Marriage Act. The court has ordered the transfer of all petitions related to same-sex marriage from various high courts to the Apex Court, with a hearing scheduled for March 13.11 The Centre is against same- sexmarriage due to its argument that it goes against traditional marriage norms and should not be altered through judicial interpretation. The Supreme Court has sent the case to a bench to study the context and relationship between the petitions and constitutional rights. The Centre questions the validity of the pleas, arguing for legislative decisions on samesex marriage. The SC of India continues the trial on same-sex marriages, revisiting key Supreme Court verdicts

9 Navtej Singh Johar v. Union of India, 10 SCC 1 (Supreme Ct. India 2018)

10 Debabrata Mohanty, Journalist Abhijit Iyer-Mitra arrested for allegedly derogatory tweets on Odisha temples, Hindustan Times (Oct.23,2018, 1:00 pm),

11 Sumasri, Same-Sex Marriage Hearing in India, LEGALBOTS (July.4,2023, 1:05pm)

/

that influenced LGBTQ rights in India. The ruling has long-term consequences for adoptions nationally, perpetuity statutes of limitations, and inheritance rights riding on the words "transgender" which does not cover all bi or gay males. The Indian Supreme Court has ruled that same-sex marriages are not a fundamental right and may refer the challenge to the notice provision under the Special Marriage Act of 1954, to a two-judge bench. ‘The Court is currently dealing with petitions seeking legal identification of same-sex marriages, despite the Centre's opposition. The court is considering the impact on children, the need for legislative changes, and the need for registration under the Registration Act, 1908.

CHALLENGES FACED BY A HUMANOID COUPLE

Same sex couple faces a variety of issues due to the existing culture and lack of legal rights in India. These disadvantages are not exclusive but present in several forms; for instance, legally, they are not recognized, and thus, they lack basic rights and protections like alimony and inheritance. In addition, the pressure of social expectations acts as a burden that negatively influences mental and emotional state. That is why the problem of family acceptance becomes a rather challenging one, as there is an obvious contradiction between the sexuality of LGBTQ+ people and the standards of traditional families. Furthermore, access to quality healthcare is proving to be a formidable challenge, as discrimination and lack of knowledge among healthcare providers hinder their access to quality care.

The matter of child custody and adoption is similarly intricate due to the dearth of clearly defined norms within Indian legislation. Discrimination within the workplace can considerably jeopardize job security and hinder career advancement. Hence, it is not uncommon for mental health issues, such as anxiety and depression, to manifest frequently among same-sex couples. Legal protections are lacking, exposing same-sex couples to legal challenges like property disputes and the inability to obtain partner benefits. Violence and harassment are also common, endangering public safety. Limited support networks, particularly in rural areas, are another issue. Finally, surrogacy and fertility services are limited, with the legal landscape transforming. THE LEGALITY OF SAME-SEX MARRIAGE IN INDIA vs. SOUTH AFRICA: A

COMPARATIVE ANALYSIS

South Africa was the fifth country to make same-sex marriage legal, following a ruling that

the existing legal definition of marriage violated the equality clause of the Constitution. The Civil Union Act allows both same-sex and opposite-sex couples to marry in South Africa. 12 Same-sex marriage is not legal in India. Society has complex attitudes towards homosexuality, often with conservative views prevailing. Progress has been made in recent years, with a landmark judgement in 2018 decriminalizing homosexuality. However, same- sex marriage is still not legalized. Currently, there are several same-sex couple petitions seeking legal recognition in court. South Africa has full legal acknowledgement of same-sex marriages, whereas in India, while homosexuality has been decriminalized, same-sex marriages are not legally recognized yet. The issue continues to be a topic of significant legal and public discourse in India.

13 The legalization of same-sex marriage in South Africa offers guidance to India. South Africa's constitutional protections against bias, including on the basis of sexual orientation, provide a model for India. In the progression of societal values, courts in South Africa have played a major role. Legalization was prompted by a court ruling that highlighted the exclusion of same-sex couples as a violation of the Constitution. Legal changes in South Africa fostered broader societal acceptance. Advocacy groups in South Africa played a key role in pushing for change. Allowing same-sex marriage is part of a broader challenge in ensuring equal rights and protections for the LGBTQ+ society. Legalizing same-sex marriage in India could face various obstacles similar to those encountered in South Africa.

India's unique socio-political and cultural context may present its own challenges, but lessons from South Africa can help anticipate probable hurdles. Resistance from sociocultural and religious groups may be a significant difficulty, as observed in South Africa. Societal norms and religious beliefs strongly reject the concept of same sex relationships. In South Africa, this was achieved through civic education and engagement as well as the appeal to constitutional values. But it took a long process of discussion, explanation, and struggle against homophobic attitudes. Political opposition such as the one observed in South Africa could also prove to be a major challenge. In the case of South Africa,

12 JA Robinson and J Swanepoel, SAME-SEX MARRIAGE IN SOUTH AFRICA: THE

ROAD AHEAD, African Journals OnLine (Mar.01, 2005, 1:08pm)

13 Akshat Anunay, Same Sex Marriages in India: A complete overview, Times of India (May.06, 2023, 1:12pm) https://timesofindia.indiatimes.com/readersblog/dopamineffable/same-sex-marriagesin-india-a-completeoverview-53507//

political resistance was encountered even though it had a liberal constitution at the time of legalization. The opposition was addressed through judicial action, civil society advocacy, and commitment to constitution’s values. The practice of the law after its legalization is not an easy process, especially where social diversity such as in South Africa or India exists. South Africa has covered this through policies, measures of handling rejection of forcing same-sex marriage in case of India besides publicizing campaigns that might be challenging in India. In addition, legalizing same sex marriages is one thing that needs to be done in the struggle for equality for the LGBTQ+ communities. It is important to consider protection in broad terms, from combating discrimination, violence, and ensuring equal access to resources.

On this score, South Africa has developed the laws herein discussed and has bolstered its legal reforms, advocacy, and education agendas for addressing these. Lack of public support and awareness is another reason that makes legal reform a very complicated process. Public enlightenment was adopted by South Africa to clear myths, erase people’s fears and gain acceptance. Public engagement and dialogue played a vital role in making progress. 14 Unfortunately, though the evolution towards the recognition of SSM in India may not follow a similar path as South Africa due to the structural and fundamental differences which are social, cultural, legal and political. Nevertheless, the experience of the South African country can include useful lessons and recommendations for India.

In conclusion, thus, India has indeed a long way to go in terms of legalizing same-sex relations but still even today it has to encounter such problems regarding the minimal legal rights for same-sex couples, marriages, and the accompanying civil liberties. As for some of the gubernatorial establishments, there are cases which are particular to the LGBTQ+ individuals where judgements are made at times, but there is currently no law or an S. O. P in all the United States of America that gives same-sex marriage couples the dignity of marriage or recognition of their legal status. Through a comparative examination of jurisprudence across the globe, ‘J. Chandrachud asserts that the law must not discriminate against same-sex relationships and must actively endeavor to achieve parity in protection.

Consequently, this landmark verdict represents the initial stride towards the recognition of the civil rights of homosexuals and

14 id.

paves the way for unhindered progress in India.15

OPINION

National legislation that grants equal marriage privileges to homosexual couples can decrease social stigma and positively influence the health and welfare of individuals with nonheterosexual preferences. However, the current approach to criminalizing same-sex marriages in India does not benefit homosexuals or society as a whole. Free love and freedom of sexuality are based on humaneness, respect, and rationality, and same-sex couples and their younger ones can benefit from legal recognition of their relationships as marriage. LGBT people have the right to full constitutional protections, including equality and nondiscrimination.

To some extent, however, we agree with the Centre that it is not easy or convenient to integrate the concept of same-sex marriage into the long-established unitary family practice of husband, wife, and children, and marriage cannot be reduced to the social organization and the private life of two individual. While the contention of the appellant petitioners that procreation of children is not the reason or primary objective of marriage and homosexual couples should not be reserved is correct in their position, it is justified by the readiness of society to promote the idea of same-sex marriage. While LGBT rights have received significant awareness in urban India, there are still struggles and opposition faced by the LGBT community, including disowning children, violence against transgender individuals, and non-consensual sex practices.

In our opinion, the Indian government ought to augment cognizance of same-sex partners among urban as well as agrarian individuals. Therefore, we recommend that India has the option to either enact legislation or modify the current statutes in order to acknowledge unions between individuals of the same gender identity.

CONCLUSION

The same-sex marriage dispute is essentially a religious one as opposed to a political one. We support same-sex marriage and contend that it is a choice to pursue happiness rather than a crime. The entire equality and dignity of homosexuals in society cannot be ensured by the 15 Heena Sharma, Same-sex marriage in India: CJI Chandrachud says 'no bar in our law to having any form of ceremony',WION (April.27, 2023,1:20pm)

decriminalization of their lifestyle. To ensure that their relationships are acknowledged, legal acknowledgement is required. The Supreme Court's removal of a barrier in the Navtej Johar case gives the government more choices for recognizing same- sex marriage legally and carrying out its obligations to protect fundamental rights and freedoms. But it will take some time for society to accept and adjust to this development. Since society has a history of evolving and adjusting to new events, beliefs, rules, and regulations, it is impossible to impose a new ideology upon it. Society will eventually accept same-sex marriage, similar to laws banning old cruel practices like child marriage and ritual killing of animals. Prior to allowing same-sex marriage, it is essential to give society some time to embrace same-sex marriage.

Thus, legalizing same-sex unions is necessary to make progress in the domain of human rights.