Love Is Love: A Journey Through Same-Sex Marriage Legalization
As we know, the marriage is one of the Part of life which is solemnised
between the one male and one female to growing and changing as a mature person.
Which means two persons live a life but two souls. Marriage is a bond of
responsibilities, faith and love to each other. But this is all happens by their
own choices that they want to marry with someone else to whom they love or they
don't want to marry.
According to Hindu law marriage is a sacred tie and seven vows keeping the holy
pyre as the witness and follow their rules, customs and beliefs. The Hindu
marriage act 1955 does not specifically define under Hindu marriage act but
section 5.6 and 7 talk about a legal marriage between male and female(parties)
And according to section 3 of Muslim marriage registration act 1981 shall be
registered their marriage.
Here, we are discussing about same sex marriage which is solemnised between the
two people of having same sex, male to male and female to female from 2023 same
sex marriage is legally perfomed in almost 34 countries. The very first same sex
marriage was legally held in Netherland in 2000, the first same sex couple to be
married legally in modern period were Michael McConnell and jack baker in 1971
in the united nation. But later social science indicated the exclusion of same
sex couple to married and discriminates against gay and lesbian peoples, they
don't want to accept the relationship between the same sex couple. later on,
Homosexuality is a very big question against the society and against the
The people who belongs the LGBTQ+ community demands their right to legalization
from society and judiciary. In January 2023, supreme court heard the petitions
filed by gay couples seeking under the special marriage act on 6th of January.
Petitioners wanted to be legal same sex marriage in India also under special
marriage act. Basically, special marriage act (SMA)s 1954 is an act of the
parliament of India with provisions for civil marriage for people, irrespective
of religion or faith followed by either party. The lead petition filed by the
Supriyo Chakraborty and Abhay dang, two gay men was living in Hyderabad, states
that the right to marry a person of one's choice should extend to LGBTQ+
citizens, as well.
They both had a commencement ceremony in December 2021 attended by their
parents, family and friends. The second petition has been filed by gay couple
Parth Phiroze Mehrotra and Uday Raj Contending that non-recognition of same sex
marriage is violative of right to quality under article 14 and right to life
under article 21 of the constitution. The couple Have argued that the supreme
court of India has always protected the right of inter-caste and inter-faith
couples to marry a person of their choice. Same sex marriage is a frequency of
this constitutional hike. Couples have submitted the special marriage act is
ultra vires the constitution of India to the extent, It's discrimination between
same sex couples and opposite sex couples denying same sex couples both legal
rights as well the social. Recognition and status that flow from marriage.
In the case of Navtej Singh Johar the supreme court has held that LGBTQ+ persons
enjoy the right to equality, dignity and privacy guaranteed by the constitution
on the same footing as all other citizens. LGBTQ+ community entitled to all
constitutional rights (Navjet Singh Johar and others v. Union of India 2018).
The SC held that members of the LGBTQ community "are entitled, as all other
citizen, to the full range of constitutional right including the liberties
protected by the constitution" and are entitled to equal citizenship and "equal
protected to law."
Petitioner have also said that this has resulted in a situation where both
Petitioner cannot have a legal relationship of parent and child with both their
children. Marriage as a fundamental right (Shafin Jahan v. Asokan K.M. and
others 2018) The SC held that the right to marry a person of one's choice is
integral to article 21 of the constitution.
The plea states that the right to marry a person of one's choice is a
fundamental right under constitution of India to each person. But does not
presently allow members of LGBTQ+ community to marry the person of their choice.
And this is violative of the fundamental rights under Part III of the
constitution including articles 14, 15, 19(1)(A) and 21, they contend.
A bench of five judges including chief justice of India DY Chandrachud and
justice PS Narasimha said that plea raise issue concerning rights which are
constitutional in nature and hence, would have to be heard by a constitutional
Later on argue on the same sex marriage between bench and central government the
government refuse to accept the concept of same sex marriage but, CJI
Chandrachud remark. "The notion of biological man and biological woman is not
absolute. There is no absolute concept of man or an absolute concept of woman.
Man is not a definition of what your genitals are. It's far more complex. So
even when the special marriage act says man and woman. The very notion of man
and a notion of a woman is not an absolute based on what genitals have. "That is
not a notion. It is restricted to the genitals SG applied. The notion and
definition of gender is not limited to a person's genitals, The Supreme Court
So far, what new is the central government is in favour of same sex marriage,
solicitor general Tushar Mehta informed the court that central government has
agreed to grant certain rights to same sex couples. Also during the proceedings,
central government issued the letter to all states on 18th April 2023 to know
their views on legalisation of same sex marriage three of them were not in the
favour Andhra Pradesh, Assam and Rajasthan that same sax marriage can create
imbalance in society.
Later, the latest development of the history is the judgement has been reserved
that it will be landmark judgement on same sex marriage if same sex marriage
will legalisation that would be huge revolution in history itself, the important
thing in it there are twenty petitions before the bench, filed by various same
sex couples, transgender persons and LGBTQ+ activists challenging the provision
of the special marriage act 1954, Hindu marriage act 1955 and the foreign
marriage act 1969 to the extent these legislations do not recognise non
During the course of the hearing, the bench expressed that it will confine the
issue only to the Special Marriage Act and will not touch personal laws. The
centre also said that such an interpretation will disrupt various other
legislation which deals with adoption, maintenance, surrogacy, succession,
divorce etc. petitioners, central government and benches of five judges
represented their views on same sex marriage and hearing has been over.
Now all we need to see will what will be the judgement of supreme court in the
case of same sex marriage, will SC inclined the central government or give their
right to same sex couples or legalise the same sex marriage in India under
Special Marriage Act 1954.
Written By: Nandita Sharma, B.A.Ll.B 5th Year
Law Article in India
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