Position of Same-Sex Marriage in India

Same-sex marriage remains a contentious issue in India, with the Supreme Court recently declining to recognise such unions while calling upon the government to establish legal protections for same-sex couples. Despite increasing societal discussions on LGBTQ+ rights, India does not legally recognise same-sex marriages, civil unions, or similar partnerships. However, limited legal recognition exists in the form of live-in relationships, and certain judicial pronouncements have expanded rights for queer couples in some aspects.

This article examines the current legal stance on same-sex marriage in India, judicial interventions, government positions, and the broader socio-political implications of the ongoing debate.

Legal Status of Same-Sex Marriage in India

Absence of Legal Recognition

As of now, India does not provide legal recognition to same-sex marriages. While traditional marriage laws such as the Special Marriage Act, 1954 (SMA), Hindu Marriage Act, 1955 (HMA), and Foreign Marriage Act, 1969 (FMA) govern heterosexual unions, they do not extend to same-sex couples.

Although some same-sex couples have solemnised their relationships through traditional Hindu ceremonies since the 1980s, such marriages hold no legal standing. As a result, same-sex partners lack legal rights such as inheritance, medical decision-making authority, joint property ownership, and pension benefits that are granted to heterosexual married couples.

Recognition of Same-Sex Live-in Relationships

In recent years, Indian courts have recognised same-sex live-in relationships as legitimate and granted limited rights to queer couples. In Deepika Singh v. Central Administrative Tribunal (2022), the Supreme Court ruled that queer live-in relationships form a valid “family unit” and deserve social security benefits. Similarly, state courts in Gujarat, Himachal Pradesh, Kerala, Odisha, Punjab, Uttar Pradesh, and Uttarakhand have affirmed that same-sex live-in relationships are not unlawful and deserve legal protection.

However, these rulings only provide restricted benefits, such as police protection from family harassment and limited inheritance rights. Unlike legally married couples, same-sex partners in live-in relationships remain excluded from legal privileges such as joint bank accounts, property rights, and spousal healthcare benefits.

Landmark Cases on Same-Sex Marriage

Supriyo v. Union of India (2023)

A five-judge Constitution Bench, led by Chief Justice DY Chandrachud, in Supriyo v. Union of India (2023), refused to legalise same-sex marriage. The court observed that while the rights of queer individuals must be protected, marriage is a legislative matter and cannot be judicially mandated. The key takeaways from the ruling include:

• Institutional Limitations: The court acknowledged that the exclusion of same-sex couples from the SMA is discriminatory. However, striking down the SMA to include same-sex marriages would amount to judicial overreach, as such legislative changes fall within Parliament’s domain.
• Right to Enter into Abiding Unions: The court affirmed that queer individuals have the right to form stable relationships, but this does not automatically translate into the right to marry.
• Atypical Family Structures: The court recognised that family units extend beyond the traditional heterosexual model, acknowledging queer families as legitimate.
• Transgender Marriages: The court ruled that if a transgender person is in a heterosexual relationship, their marriage can be legally recognised under existing laws.
• Adoption Rights: The ruling confirmed that unmarried queer couples are allowed to jointly adopt children.

Shafin Jahan v. Asokan K.M. (2018)

The Supreme Court ruled that the right to marry a person of one’s choice is a fundamental right.

Navtej Singh Johar v. Union of India (2018)

The Supreme Court in Navtej Singh Johar v. Union of India decriminalised homosexuality, ruling that LGBTQ+ individuals are equal citizens and that discrimination based on sexual orientation and gender identity is unconstitutional.

Naz Foundation v. Govt of NCT of Delhi

The Naz Foundation challenged Section 377 of the IPC before the Delhi High Court, arguing that it violated Articles 14, 15, 19, and 21 of the Indian Constitution. The petition claimed that the police used Section 377 as a tool to penalise consensual same-sex relationships, even though they did not cause harm.

In 2008, the Delhi High Court in Naz Foundation case ruled that Section 377 could not be applied to consensual homosexual acts, as it violated fundamental rights. The judgement decriminalised private, consensual same-sex relations between adults. However, this ruling was challenged by various social and religious groups, who contended that decriminalizing homosexuality would erode traditional marriage values and encourage LGBTQ+ relationships.

Suresh Kumar Koushal & Anr v. Naz Foundation & Ors

In 2013, the Supreme Court overturned the Delhi High Court’s ruling in the Suresh Kumar Koushal case, holding that only Parliament had the authority to amend Section 377. The Court also noted that the LGBTQ+ population in India was small, and few prosecutions had occurred under Section 377.

This verdict led to widespread criticism from human rights activists and legal experts. Several curative petitions were filed to challenge the ruling. Meanwhile, five prominent LGBTQ+ individuals—Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath, and Sunil Mehra—filed a writ petition seeking to overturn Section 377.

Despite pending curative petitions, the Supreme Court established a Constitution Bench on January 5, 2018, to re-examine Section 377. The five-judge bench, led by Chief Justice Dipak Misra, began hearings on July 10, 2018. The decision was influenced by the Right to Privacy judgment, which indicated that the Suresh Koushal ruling was flawed.

Existing Marriage Laws and Exclusion of Queer Couples

India’s marriage laws are structured around religious and civil statutes, none of which accommodate same-sex unions:

• Hindu Marriage Act, 1955 (HMA): Governs Hindu, Sikh, Buddhist, and Jain marriages; applies only to heterosexual couples.
• Special Marriage Act, 1954 (SMA): Enables interfaith and inter-caste marriages but does not include same-sex marriages.
• Muslim Personal Law (Shariat) Application Act, 1937: Governs Muslim marriages based on Sharia principles, which traditionally do not recognise same-sex unions.
• Indian Christian Marriage Act, 1872 (ICMA) and Parsi Marriage and Divorce Act, 1936: Similarly restricted to opposite-sex couples.

Conclusion

While India has made progress in recognising queer relationships, same-sex marriage remains unrecognised under Indian law. The Supreme Court’s refusal to legalise same-sex marriage has placed the responsibility on Parliament, which has so far been reluctant to act. The formation of a government committee to explore rights for queer couples is a small step forward, but comprehensive marriage equality remains elusive.

For India to truly embrace LGBTQ+ rights, legislative and societal transformations are essential. The path to equality must be paved with inclusive laws, judicial protection, and changing social attitudes.