File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Legal Status of Same Sex Marriage

According to scholars, the position of lesbian, gay, bisexual, and transgender people in society has evolved over time. In certain ancient cultures, like ancient Greece and Rome, homosexual relationships and gender non-conformity were acceptable. However, with the rise of monotheist faiths like Christianity, Islam etc.

This acceptance was not universal. LGBTQ people are now being confronted with increased animosity. As European nations dominated different regions of the world, this resulted in significant prejudice and persecution. On the colonized peoples, they frequently impose their own values and beliefs, including anti-LGBTQ perspectives. This resulted in the repression as well as the criminalization of same-sex partnerships in many areas.

The late 19th and early 20th centuries was when the contemporary battle for LGBTQ rights began. The gay liberation movement gained velocity in the middle of the 20th century as a consequence of events like the Stonewall riots in 1969, which served as an ignition for the push to outlaw homosexuality and recognize LGBTQ people. LGBTQ rights have evolved substantially with nations worldwide during the past several decades homosexuality is no longer an offense.


In India, concepts like "homosexuality" have been looked down upon. Even though the majority of marriage laws utilize terminology that is gender-inclusive, marriage is a prominent cultural bond that is solely known as male-female. Even while gay marriage has only just gained widespread acceptance, culture is becoming more permissive.

This change is also shown in Navtej Singh V. Union of India, when the Supreme Court overturned Section 377 of the IPC. Many states have upheld their constitutional bans on homosexual marriages in the face of numerous complaints from individuals and organisations that insist that same-sex unions must be recognized as legitimate. Additionally, same-sex relationships are not legally recognized in many nations, including India. As a result, gay couples, regardless of their relationship duration, are denied many of the legal and monetary advantages that come automatically with marriage status.

Section- 377 Of The IPC Is Included In Chapter Xvi, "Of Offences Affecting The Human

Unnatural Offenses:
Anyone who willingly engages in sexual activity with a human, a non-human, or an animal is punishable by [life imprisonment] or by imprisonment of either kind for a time that may last up to ten years, as well as by a fine.

Case: Naz Foundation Case (2009)

In the landmark case, a two-judge panel of the Delhi High Court found that criminalizing consenting homosexuality between adults violates basic freedoms secured by the Indian Constitution.
  • NALSA Case Judgement (2014)

    The Court ruled that for transgender people to access healthcare and education without facing any kind of bias, the State and Federal governments must explicitly acknowledge them as such in the eyes of the law. The Court also distinguished between psychological and natural sex.
  • Privacy Case Or K.S Puttaswamy Case

    The K.S. Puttaswamy case ruling, which altered the scope of Article 21 or, more precisely, gave a new dimension to the meaning of Life and Personal liberty, has lately highlighted the "Right to Privacy's" significance.

Same Sex Marriage:

Regarding homosexuality and same-sex marriage, several nations throughout the world are in different positions. While several nations are quite welcoming of these unions and officially permit same-sex weddings, many others are very against homosexuality and even view it as a crime. The legalization of same-sex marriage in many nations contrasts sharply with the widespread disapproval of homosexuality, which is even seen as illicit behavior in other nations. In order to protect homosexual rights, several nations throughout the world have enacted anti-discrimination laws and regulations.

Same Sex Marriage Under Personal Laws:

  • Although same-sex couples can get the rights and advantages as a live-in pair , according to the Supreme Court of India's historic ruling Deepika Singh v. Central Administrative Tribunal in August 2022, same-sex marriage and civil unions are not recognized in India.

Marriages are very important in Indian culture and society. What is known as a sacrament has the divine functions as its core component. The right course of action in this situation is to acknowledge same-sex unions under Indian personal marriage laws. The rules of Hindu marriage, which include Catholics, Sikhs, Jain and Buddhists, declare that marriage will occur between two Catholics in nature, in connection with birth. This is true for Indian Christians, Muslims, and Hindus. In addition, the father must be at least 80 years old and the lady must be 21 years old.

Same Sex Marriage Under Special Marriage Act,1954:

Attempting to amend the Special Marriage Act of 1954 to permit same-sex marriages is another strategy to avoid raising moral objections. The Special Marriage Act is a lay legislation that facilitates marriage between individuals of many religions or who do not want their own laws to be constrained.

However, it is not impossible for the Special Marriage Act system to allow same-sex unions. Only the age barrier in Section 4(c) should be amended to 18 for females and 21, respectively, to specifically state that same-sex marriage is legal. Section 4(c) change is only necessary.

Why The Federal Government Forbids Same-Sex Marriage?
  • Religious Definition Of Marriage:
    The first argument made by the center was that different religions only acknowledge marriages between men and women. The lawmakers, not the court, should be the ones to come up with a new definition of marriage, according to advocate Mehta. It is crucial to remember that even under the Special Marriage Act, personal rules are the root of marriage. The aforementioned secular laws were passed not to establish new social legal structures but rather to get around specific restrictions imposed by personal laws.
  • Right to Privacy:
    The Supreme Court ruled in a historic ruling in 2017 that the right to privacy is a basic freedom and that sexual orientation is a crucial aspect of identity.

    "Equal protection requires protecting each individual's identity without discrimination," Justice Chandrachud had begun a concurring opinion.

    Although the right to privacy does exist, the center claimed that it cannot be extended to marriage.
  • Effects On Personal Laws:
    The center stated that even if the court merely looks at the special marriage statute, the personal laws will unavoidably be affected.
In India right now, same-sex unions are not seen as legitimate. Although the same-sex marriage is not expressly forbidden by the Indian Constitution, the notion of marriage in India is mostly regulated by personal rules that are based on religion. In India, the majority of religions do not approve of same-sex unions.

In conclusion, the current legal dispute over same-sex unions in India represents a significant step toward the acceptance of LGBTQ+ people's rights. Denying same-sex couples the ability to be married is discrimination and goes against their basic rights. Legalizing same-sex unions would not only give these couples legal rights and advantages, but it would also improve their mental health and general wellbeing.

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly