Legalizing same-sex unions is a socio-legal topic that has been the subject of heated debate in India’s legal system. This issue challenges the constitutional validity and the provisions of several personal laws regarding the conditions for a valid marriage, sexual orientation, and gender identity. This blog simplifies its legal scenario and explains the crucial aspects.

The following is a brief introduction to the topic

The legal paradigm around marriage equality and same-sex marriage has significantly shifted in recent years. Many countries have recognized the right of same-sex marriages in the context of human rights and societal progress, but others still struggle to deal with issues surrounding it. In countries that recognize same-sex weddings, the importance of equal protection and rights for everyone, regardless of sexual orientation, has increased. It has created a more diverse and inclusive society, with everyone being able to marry and love whoever they want. Many challenges exist, such as discrimination and bias against the LGBTQ+ communities. Indian law does not recognize same-sex unions. The Indian Penal Code section 377 criminalized homosexual behavior until 2018. Even though the Supreme Court of India partially overturned this section in 2018, same-sex marriages are still unrecognized. Nevertheless, there have been some positive developments over the last few years. In 2014, Indian Supreme Court granted legal recognition to transgender people in the case NALSA vs. UOI AIR2014 SC1863.

Legal rights and provisions that are being challenged

In India, the legal paradigm for same-sex marriages is challenging. Growing movements and advocacy groups work to promote greater acceptance of and rights for LGBTQ+ communities. Marriage equality is an expression of the principle of equal opportunity and fairness under the law and embodies empathy, compassion, and respect for diverse human relationships. The following are some of the challenges that marriage equality advocates have raised.

Particular Marriage Act of 1954

In India, the Special Marriage Act of 1954 provides a legal framework for civil marriages between people from different castes and religions. It was intended to promote equality and social harmony by allowing people to marry regardless of caste or religion. The Act provides couples with a formal legal process to match irrespective of caste or religion. It means that teams from different castes or religions can marry legally and enjoy the same rights and protections. In the case of Supriya-Chakraborty Vs. Union Of India, on the 6th of January 2023, the petitioners involved in this plea for marriage equality argued that Section 4, which prescribes the conditions of solemnization in particular marriages, only recognizes marriage between a “male” and a “female.” This discriminates against same-sex married couples, denying them benefits like adoption, surrogacy, and employment. It also prohibits their joint bank accounts and retirement benefits. The plea only challenges certain sections of the Act rather than its entirety.

Constitutional Rights

The Hon’ble Supreme Court was also challenged on the grounds of equal protection and rights granted to every citizen. The appeal was made via a writ under Article 32 of India’s Constitution. The arguments of the Petitioner challenged the exclusion from marriage solemnization of couples of the same gender under the Special Marriage Act. The Petitioner argued that the Act violated their fundamental rights, Articles 14, 19, and 21. The Hon’ble SC also observed and applied groundbreaking principles in previous judgments on marriage equality. Here are some of the critical points from SC’s observations.

Precedents of the Court

In the case of vs. UOI (2017 10 SCC 1), it agreed that the rights of LGBTQ+ should not be viewed as “so-called” rights but rather “real rights” based on constitutional doctrine. They have a fundamental right to dignity, privacy, and life under the Constitution, which is the foundation of freedom and liberty. 1. The Hon’ble SCs in Navtej Sing Johar and Orsvs UOI (2018 10 SCC 1) affirmed that members of the LGBTQ+ communities are entitled to equal citizenship without discrimination. The court added that sexual intimacy must not be subjected to discriminatory behavior and that the right to choose a partner is integral to constitutional protection. 2. The historical decision to decriminalize consensual homosexual conduct by rewriting Section 377 IPC has significantly impacted the lives and relationships of couples of the same sex. The state was obliged to recognize rights that bring accurate fulfillment to the relationships of same-sex couples.

In other similar cases, the Hon’ble SC ruled that Article 21 guaranteed that an adult has the right of choice to marry the person they choose.

The conclusion of the article is

The court’s decision in Navtej Johar’s case and other arguments made before it obligated High Courts throughout the country to protect such couples on the same basis as they do inter-caste or inter-faith marriages. The United States, Canada, and many European countries have legalized same-sex unions. In the past few years, India has progressed in advancing LGBTQ+ rights, including decriminalizing homophobia in 2018. The Supreme Court’s final decision on same-sex marriages will significantly impact the establishment of marriage equality in India. The Hon’ble SC has yet to decide on marriage equality in India.

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This blog was written and published solely for information and awareness. Contact an attorney to discuss your concerns if your rights have been violated. This blog should not be construed as legal advice.