In India, where there are many social and legal issues that are not faced by
non-LGBT individuals, homosexual individuals face various problems. Their sexual
activity is illegal, and they cannot marry or have a common association with
other individuals. In 2018, the Supreme Court was expected to consider whether
to allow same-sex couples to marry in the country. Partial freedom for LGBT
individuals in India is a matter of principle. However, it is also important to
note that the country's system should not be used to justify the right of a
couple to marry.
In India, many LGBT individuals and couples face various problems due to their
sexual orientation. They are afraid to get exposed and avoid being associated
with families and society because they consider being gay shameful. Despite the
decriminalization of Section 377, a lot of issues related to the LGBT community
are still pending. There is also discrimination against LGBT individuals when it
comes to freedom of expression. For instance, if a couple expresses their
affection toward one another, but does not have the authority to do so, then it
is not allowed.
In India, it is also illegal for same-sex couples to have a common association
or to get married. In terms of social and legal issues, same-sex unions are not
allowed to be considered in the country. This research paper discusses the
severity of the problems and challenges on legal grounds.
This is a personal choice that has been taken into account. Laws should be
gender-neutral so that couples who want to get married can do so without any
discrimination. In the tradition of Hindus, marriage is regarded as a type of
union between two souls, and the same concept applies to all souls.
Rights should be granted to the spouse instead of to a specific gender, as every
person is vulnerable to hypocrisy due to social beliefs. The concept of marriage
is acknowledged by society as a way to acknowledge the union of two souls. It is
the primary object of marriage to beget and bear children. All members of a
family are entitled to the right to be treated with dignity and respect.
A legal definition of marriage is a union between a man and a woman, which is a
contractual arrangement that can only be recognized by law. It's a binding
contract that both parties can rely on. The Hindu Marriage Act is a religious
undertaking that is performed for the performing of religious duties. It is
regarded as a sacred union that involves the blood and flesh of one's soul. It
is not a civil contract and can only be performed under the condition of being
Two years after the criminal offence of being gay was made under Section 3771 of
the Indian Penal Code (IPC), the Supreme Court of India ruled that this
provision was unconstitutional. The court overturned its ruling on December 11,
2013. In a case filed by the Naz Foundation2 in 2009, the Delhi High Court ruled
that this provision was unconstitutional when it pertains to sex between
Despite the court's ruling, the government and the Supreme Court of India still
have not addressed the various questions related to the issue of gay
relationships. One of these is the issue of same-sex marriages. Due to the law,
people belonging to the LGBT community are considered individuals and are not
allowed to get married. They also live in fear and are not able to feel
fulfilled in their lives.
One of the main reasons people are against the idea of same-sex marriage is due
to the non- acceptance of the sexual orientation of individuals. In any society,
the concept of marriage is regarded as the ultimate closure of a love story.
After the couple gets married, the status of the relationship changes from being
anti-social to social.
Equality In Marriage Laws
The Human Rights Charter3 states that the right to marry is a universal right.
This means that everyone should have the right to marry regardless of their
sexual orientation. Unfortunately, not allowing the LGBT to live with dignity
and liberty within their community is not only unjust and complex, but it also
contradicts the promises made to them by the State.
Many people who choose to marry in inter-caste, intra-religious, or inter-gotra
relationships have experienced violence. They have been murdered by their own
families. This shows how freedom of choice can affect one's actions. In India,
for instance, Dr. B.R. Ambedkar noted that Hindus would never intermarry with
outsiders unless caste was removed from the country's constitution.
The Role Of Constitutional And Personal Laws Challenges To Equality In Marriages
Constitutional Challenges To Marriage Equality The legal status of a marriage between one man and one woman is solemnized
according to the dictates of constitutional morality, which discriminates
against the sexual orientation of the individual. This is a violation of the
Golden Triangle constitution.4 Classification must be supported by a
rational difference of opinion. According to Article 14, the classification
must also satisfy two conditions: first, it must be able to distinguish
between the things that are grouped together and the ones that are not.
Second, it must have a rational nexus to what the statute seeks to achieve.
This means that the discrimination against the sexual orientation of
individuals cannot be regarded as a rational object.
According to Article 14 talks about Equality before law which states that
the State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India, the prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth
and Article 15, the State should not discriminate against any person on the
basis of their caste, race, religion, sex, or birthplace, despite having
these major articles in the Indian Constitution which protects the rights of
a citizen our Judiciary still not able to give equal protection and
opportunities just because of the criticism they face due to so called
Indian Societal norms. In a case involving the National Legal Services
Authority5, the Supreme Court ruled that the transgender community should be
recognized as a third gender instead of just being a second class. This will
provide necessary benefits to society's economically and socially backward
sections. However, the non-recognition of the marriage of a transgender
individual is also considered discrimination.
A Nine-judge bench of the Supreme court in the case of Justice K.S
Puttuswamy (Retd.) & Anr. Vs Union of India6 held that the right to privacy
was a fundamental right that was protected by the Indian constitution. It
also included the right to autonomy over one's personal choices. This right
was not only incidental to the freedoms guaranteed by the constitution, but
it was also a part of the country's overall social and economic development.
In the Navtej Johar case7, the court ruled that an individual's choice of
whether they would like to be left alone or not should not be considered a
restriction on their privacy.
In India, the only acceptable relationship is between a man and a woman
unless the person is anti-social. This condition will make a couple break up
and live in isolation. They will also never be able to live with the person
they are in love with as they will be restricted from exposing themselves to
the outside world. The right to self-identification is a component of the
freedom of expression8 that is protected by the Indian constitution. In the
Navtej Johar case, C.J.I. Mishra stated that discrimination on the basis of
sexual orientation would violate the freedom of expression. In his decision,
the court stated that even though the law recognises certain sexual
orientations, the individual's dignity is threatened by the imposition of
law. He further noted that the law also threatened the rights of biological
expression and autonomy. Despite these constitutional interpretations, no
legislation prohibiting discrimination in the workplace on the grounds of
sexual orientation has been passed since Article 15 only applied to state or
The discussion of marriage equality has recently been reignited by a member
of parliament who said that same-sex unions go against India's (so-called)
cultural ethos. This is happening in the midst of a Supreme Court of India
petition for same-sex marriage privileges (under the Special Marriage Act,
1954). The institution's legality, or whether courts should get involved in
marriage rights or leave it to Parliament's judgement, appears to be the
biggest obstacle in adjudication. The fact that the Court earlier
decriminalised consensual same-sex behaviour on the grounds of the "right to
equality" and not just the "right to privacy" may help the Court decide
whether or not to interfere in this case. What remains to be determined is
how challenging the current opposition to marital rights is?
The legal conflict facing the LGBTQ community has included the question of
whether the law that criminalises sexual activity has violated either the
right to equality or the right to privacy. In the former, one's sexual
orientation and partner of choice were considered essential components of
privacy and personal liberty. Equal treatment of same-sex couples and
heterosexual couples was prioritised in the latter. This makes a difference,
according to attorney Jonathan Berger, because while a privacy analysis
calls for the state to take a completely "hands-off" approach where it
should not interfere, an equality analysis necessitates the state to take
proactive measures to ensure equality in all spheres of life. As a result,
once equality with heterosexuals is established, it should be easier to
pursue subsequent rights such as equalising the consent age, banning
employment discrimination, and rights in marriage, adoption, etc.
Personal Laws And Its Implications In Same-Sex Marriages
In India, family laws are a much more complex set of laws than the laws
regarding same-sex marriage. Even though the recognition of this practice
through judicial challenge may lead to limited gains for the community, it does
not remove the need for more comprehensive legislation. The concept of marriage
cannot be viewed in terms of its rights only, as it is a pathway for society to
run its own terms and conditions. It also tackles various issues such as
parenthood, economic dependency, and protection from domestic violence. In
India, marriage is often regarded as a part of the family law system since it
still remains the central pillar of the legal system.
The laws currently deal with various aspects of the family, such as succession
and parenthood, and assume that the heterosexual family is the norm to live in
the society. Even if the Hindu Marriage Act or other similar laws are declared
unconstitutional, the provisions of other laws will not allow same-sex couples
to get married. The Hindu Succession Act, for instance, is based on the Hindu
undivided family. Laws related to parenthood, such as the Guardianship and Hindu
Minority Act, would only consider the normative family when it comes to deciding
the guardianship of minors.
If the desire of same-sex couples to get married in India is to base their
rights on the recognition of the special marriage act, then the laws related to
this practice would continue to be relevant. These laws are still relevant
because the various personal law regimes in the country are still
interconnected. A Hindu couple who are getting married under the special
marriage act would continue to be treated as a married couple under the Hindu
Succession Act and other related laws. These laws would also continue to apply
to matters of parenthood and inheritance.
Unfortunately, many of the laws related to this issue are not in keeping with
the modern lifestyle of the country and are not in keeping with the needs of the
LGBT community. For instance, the procedures related to the solemnization of
marriage and the maintenance of a relationship are not in keeping with the
modern standards of the country.
To ensure that the civil rights of the LGBT community are fully protected, the
laws related to the family should be changed to address the various issues that
arise after marriage. This would include the protection from domestic violence,
inheritance, and parenthood. This would be done by developing comprehensive
reform strategies in the family law system. The goal of marriage equality should
not only be limited to the recognition of one's sexuality but also to addressing
the various aspects of the family law. Doing so would ensure that the practice
of legal inclusion is carried out in a way that is beneficial to society.
Other Countries Status
Denmark Denmark legalised same-sex marriages on June 15, 2012. On June 7, 2012, the
Folketing adopted a bill that the Thorning-Schmidt I Cabinet had introduced
to legalise same-sex unions. On June 12, Queen Margrethe II gave her royal
approval, and it didn't go into force for another three days.
Germany Until June 11, 1994, it was considered a crime in Germany to be in a
same-sex relationship. In 2017, Germany became the 15th country in the
European Union to allow gay couples to get married. It was late to give full
legal recognition to same- sex marriages compared to other countries.
UK The UK became the first country in the world to legalise homosexuality in
1967. In Scotland, the Criminal Justice Act of 1980 decriminalized certain
types of sexual conduct. It was followed by the Northern Ireland Act of
USA On 26 June 2015, the US Supreme Court ruled that states can't prevent people
from getting married. This event brought marriage equality to the entire
country. During the previous 11 years, same-sex couples were able to get
married in one State. Due to various court decisions and ballot initiatives,
marriage equality has gradually spread across the country. The ruling was
beneficial to the LGBT community as it reinforced the belief that same-sex
marriage should be legal at all country levels. It also showed that the
country was ready to accept a ruling favouring same-sex marriage.
As the US Supreme Court considered whether to allow same-sex marriage in the
country, the growing number of people supporting the issue showed that the
government was ready to accept a decision in favour of equality. The
significance of this event is that it indicates the acceptance of the
changes that have been made in society regarding sexual orientation and
Taiwan In May 2019, Taiwan became the first country in Asia to pass laws that
allowed same-sex couples to get married. It is also one of the most
progressive countries in the world when it comes to addressing the issues
related to sexual orientation and gender identity. Some of the other notable
changes that the country has made include allowing people to serve in the
military and banning conversion therapy.
Japan In 1880, Japan became the first country to decriminalize anti-gay laws. Its
progressive laws also include the right to change one's legal gender. No
laws in Japan specifically prohibit discrimination based on sexual
orientation or gender identity. However, in Ibaraki and Tokyo, some laws
protect the rights of LGBT individuals. In some parts of the country,
couples can also register a Partnership Certificate, which provides limited
rights to help with the care of their partners.
Austria The great majority of Western European nations, including Austria, legalised
same-sex marriage on January 1, 2019. In 2010, the nation gave gay and
lesbian couples the ability to form a civil partnership. However, the
highest court in Austria decided in 2017 that these partnerships are
intrinsically discriminatory. The court also decided that homosexuals and
lesbians should be able to be married by January 1, 2019, barring any laws
imposed by the nation's government to the contrary. The first same-sex
marriages occurred at the start of 2019 because Austria's legislature did
not take any action to overturn the decision.
The first nation in Central America to legalise same-sex unions was Costa
Rica in May 2020. In 2018, the nation's top court declared that the
country's ban on same-sex marriage was unconstitutional. The court also
stated that the ban would be repealed in 18 months if the government did not
take action before that time, which it did not.
The debate over the legalization of same-sex marriage has been going on for a
long time now. Due to various factors, the debate has been hampered by multiple
ethical, religious, and political issues. This paper argues that it should be
Being gay is a choice that people have made based on their individual desires.
It does not mean that they can't feel affection towards any other person, but it
is a way of showing that they can get sexual happiness by having a legal civil
ceremony. Aside from having a legal marriage, gay people should also have the
right to enjoy the rights and securities of heterosexual couples.
In our society, marriage is a sign of commitment and love. If two individuals
are in a committed relationship, how does that destroy the ideals of marriage?
In India, we are currently in an age where people have the right to choose.
Being gay is not against any group or society, but it is a community that should
be recognized and treated with dignity and respect.
The question of how to deal with same-sex marriages is complex and has various
options. As the complexity of the issue increases, the feasibility of
implementing such an approach remains unclear. A growing number of people
believe that the criminalization of same-sex marriages does not protect the
fundamental rights of the gay community. This is because it undermines their
fundamental rights and society as a whole. We need to recognize and treat all
individuals equally and fairly.
- Indian Constitution
- Unnatural offences: 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.
- Naz Foundation vs Government of Nct of Delhi on 2 July, 2009
- Article 16
- Article 14, 19 and 21
- National Legal Services Authority (NALSA) v. Union of India &Ors on 15
- 26 September, 2018
- Navtej Singh Johar vs Union Of India on 6 September, 2018
- Article 19