Legalizing same-sex marriage is a recent socio-legal issue subject to the
heated debate before the Indian legal system and citizens. While this issue
addresses the provisions of many personal laws, it also challenges the
constitutional validity of some provisions regarding conditions of a valid
marriage and sexual orientation or gender identity under the law. This blog
simplifies the apropos of its legal scenario, giving an understanding of its
crucial correlated aspects.
The legal paradigmaround marriage equality and same-sex marriages has undergone
a significant shift in recent years. In the realm of societal progress and human
rights, many countries around the world have recognised the rights of same-sex
couples to marry, while others are still struggling to effectively deal with the
issues revolving around it. In countries where same-sex marriage is recognized,
there has been a growth in the importance of equal rights and protections for
all individuals, regardless of their sexual orientation. This has led to a more
inclusive and diverse society, where everyone is free to love and marry whoever
However, there are still many challenges that remain, including discrimination
and prejudice against the LGBTQ+ community. In India, same-sex marriage is not
recognised under the Indian law. Section 377 of the Indian Penal Code
criminalized homosexual activity till 2018. While the Hon'ble Supreme Court of
India partially struck down this section in 2018, same-sex marriage is still not
recognized. However, some positive developments have occurred over the past
several years. In 2014, the Indian Supreme Court recognized transgender
individuals as a "third gender" and granted them legal recognition through the
case of NALSA vs UOI
AIR 2014 SC 1863.
Challenged legal provisions and rights
The legal paradigm for same-sex couples in India is challenging; growing
movements and advocacy groups are working to promote greater acceptance and
rights for the LGBTQ+ community. In addition, the recognition of marriage
equality not only embodies the principles of fairness and equal opportunity
under the law but also represents a triumph of empathy, compassion, and respect
for the diverse tapestry of human relationships. Some challenges raised in the
plea for marriage equality are as follows.
Special Marriage Act, 1954
The Special Marriage Act 1954 is a law in India that provides a legal framework
for civil marriage between individuals of different religions or castes. The act
was designed to promote social harmony and equality by allowing individuals to
marry regardless of their religion or caste. It provides a formal and legal
procedure for couples who wish to marry without regard to their religion or
This means that couples who belong to different religions or castes can legally
marry and enjoy the same legal rights and protections as any other married
couple. The petitioners involved in the plea for marriage equality in the case
of Supriya Chakraborty vs Union Of India on 6 January 2023 and argued that
Section 4(c) of the Act, which prominently prescribes conditions relating to the
solemnization of special marriages, recognizes marriage only between a 'male'
and a 'female'.
Thus, this discriminates against same-sex couples by denying them matrimonial
benefits such as adoption, surrogacy, employment, joint bank accounts, and
retirement benefits.It appeals to broaden the provision to include same sex
marriages on such grounds. However, Only certain provisions of the Act are
challenged in the plea and not the entire Act.
Another issue raised before the Hon'ble Supreme Court in the plea for marriage
equality was based on the challenges on grounds for equal rights and protection
granted to each citizen. The appeal was filed via a writ petition under Article
32 of the Constitution of India. The Petitioner's arguments challenged the
exclusion of same-sex couples from the solemnization of marriage under the
Special Marriage Act.
This led to the contention that the provision of the Act is violative of
Articles 14, 15, 19, and 21, which are their fundamental rights. In addition,
the Hon'ble SC has previously observed ground breaking and applied principles in
its judgments in various cases/pleas for marriage equality. Some of the critical
points of SC's observations are given hereunder.
The Hon'ble SC, in the case of K S Puttuswami vs UOI (2017) 10 SCC 1 (CB),
concurred that the rights of LGBTQ+ shall not be considered "so-called" as they
are "real rights" based on sound constitutional doctrine. Hence, they
fundamentally have the right to life, privacy and dignity under the Constitution
that forms the basis of liberty and freedom.
- In Navtej Singh Johar and Orsvs UOI (2018) 10 SCC 1 (CB), the Hon'ble
SC's conferred that the members of the LGBTQ+ community are equally entitled
to equal citizenship without discrimination. It further added that the
fulfilment ofsexual intimacies must not be subjected to discriminatory
behaviour, and the choice of whom to partner with is intrinsic to
- The historic decision of decriminalising consensual sexual conduct by
reading down Section 377 of IPC had a vital impact on the lives of same-sex
couples. It placed a positive obligation on the state to recognise rights
which bring true fulfilment to their relationships.
- In similar other cases, the Hon'ble SC held that Article 21 guarantees
that an adult person has the right to marry a person of their choice.
The decision in Navtej Singh Johar's case, along with other pleas made before
the court, obligated all High Courts across the country to grant protection to
such couples on the same footing as they protect inter-caste and inter-faith
couples. Many countries worldwide have legalised same-sex marriage, including
the United States, Canada, and several countries of Europe. India has made some
progress towards LGBTQ+ rights in recent years, including decriminalizing
homosexuality in 2018.
However, the Hon'bleSupreme Court's final ruling on recognizing same-sex
marriages carries significant weight and importance in imparting marriage
equality and will be a landmark moment in Indian legal history. The final
judgment on marriage equality is still pending before the the Hon'ble SC on
whether homosexual marriages will be recognized in India.
This blog is written and published for informational and awareness purposes
only. If your rightshave been infringed and you want to get specific advice
about the remedies available to you, connect with a lawyer or legal expert to
address your concerns. This blog must not be treated aslegal advice in any
Award Winning Article Is Written By: Mr.Kishan Dutt Kalaskar
Authentication No: JU46384959581-11-0623