The world is continuously evolving and it has been since time immemorial;
However, the rate of evolution has been increasing exponentially in recent
times. The rate of advancements in technology and science are only rivalled by
that of progressive social thinking and the emergence of novel schools of
thought acknowledging and even normalizing aspects and instances of society and
One such aspect that has taken the limelight in recent times
in the LGBTQ+ community and the prospects and notions put forth by their
emergence let alone existence. Among the many, equally important rights, fought
for the community, the acceptance and legal recognition of same sex
companionship and marriages is of great importance.
Humans are social beings, more so, a large part of the human life cycle, the
later stages of it in specific, is centered around companionship and its
implications. Humans have lived together since time immemorial and the idea of
companionship can be said to be inherent in humans as a part of our natural
being. Having a partner is a wholistic need of a person encompassing physical,
mental and emotional objectives.
The idea of living together surpasses records
and observations and is widely accepted to have a place even in prehistoric
times. Though its origins may not have been as structured, monogamous or even
holistic as it has come to be now, it has nevertheless been an integral part of
both private and social life.
The institution of marriage seeks to legitimize in a way, such companionship
between two individuals there by acting as a social acknowledgement of the
decision taken by said individuals to bestow upon themselves the right to
cherish, embrace and call their significant other as their wife or husband, even
in a more representational sense, while also assenting to an implied or explicit
set of duties brought forth by such marriage; It is pertinent to note that such
rights and obligations though to a large extent are prescribed by personal laws
that govern the marriage, a fair share of the ‘right and duty’ is characteristic
to every marriage.
Now that both fundamental entities that are to be explored in this document have
been prefaced we can now interlace them individually with the ethos,
perspective, and ideologies of Indian law and analyze the status of the
aforementioned in contemporary society that is in an awkward transitional state
where the seeds of change have been laid for a while now by activists, movements
are people who fight for such rights, yet though there are a relevant section of
the population who have at least come to accept such rights even if not support
them, such a quantifiable section of the population pales in comparison to the
millions and millions of people, who in this sense are still regressive if
equality and upliftment are two of the many pillars of progress; After all the
government is the consciousness of the people, and it has seldom forsaken the
majority for the sake of the minority.
In light of recent judgements that deal with such issues, the aforementioned
minority of people is growing fast thanks to the recognition and rationale given
to such sensitive topics by the court, yet the legislative is rather vehement in
its not so passive-aggressive stance against LGBTQ+ rights let alone the
recognition of their consensual relationships and marriages.
The judiciary has played a formidable role in protecting the people, their
rights and justifiable interests, but there is in fact a glass ceiling of sorts
where a line is drawn, where the power to protect the people under law cannot be
construed as power to make law itself.
With all this said and pondered upon, in a bittersweet sense, there is a certain
level of tolerance and acceptance, especially in the eyes of the law and its
agents towards same sex relationships, yet not as much for same sex marriages.
The reasoning behind such a state of thought can be rational to some yet seems
to barely qualify as reasonable to others, yet in hopes of progress and change
for the greater good the envelope continues to be pushed.
With the integral themes and constituents of this document prefaced, let us now
analyze the matter in itself.
Right to Marriage
Article 21 of the Indian Constitution confers the right, not limited only to
citizens of the state, the right to life and personal liberty. Further, The
Honourable Allahabad High Court recently in Salamat Ansari and others versus
State of UP and others
 cancelled a case against a Muslim man filed by the
parents of his wife who had converted to Islam and became a Muslim before
marrying him saying that the court doesn’t see them as a Hindu-Muslim couple.
A Bench comprising of Honourable Justice Pankaj Naqvi and Justice Vivek Agarwal
while doing so reiterated that a person’s right to live with a person of choice,
irrespective of religion, is intrinsic to the right to life, and of personal
The Supreme Court, in the case of Lata Singh vs. the State of Uttar Pradesh
2006 SC 2522 viewed the right to marry as a component of right to life under Art
21 of Indian Constitution the court observed that:
“This is a free and democratic country, and once a person becomes a major he or
she can marry whosoever he/she likes. If the parents of the boy or girl do not
approve of such inter-caste marriage the maximum they can do is that they can
cut off social relations with the son or daughter, but they cannot give threats
or commit or instigate acts of violence and cannot harass the person who
undergoes such inter-caste marriage”.
In the above instances, of many more, there is no qualification for the term
‘person of choice’, so for any reasonable man, it should be safe to assume that
by law, a person can choose to live with or marry anyone, even if that person be
of the same sex. However, though we have made significant progress
socialistically, legislatively and jurisprudentially speaking in as much to
disqualify age, caste, religion, wealth as encumbrances to the right to marry
the person of choice, the notion of marrying someone from the same sex is still
perceived as alien, unacceptable and unnatural.
Right To Be In A Relationship
In contemporary society, it is conventional that once an individual is primarily
major and is further mentally sensible enough so as to be able to independently
manage their own affairs to a reasonable extent, there cannot be any rational
impediment to them being involved consensually with another person in a
relationship withstanding that of a romantic nature.
The Allahabad High Court recognised the concept of live-in relationship in Payal
Sharma v. Nari Niketan
, wherein the Bench consisting of Justice M. Katju and
Justice R.B. Mishra observed that, “In our opinion, a man and a woman, even
without getting married, can live together if they wish to. This may be regarded
as immoral by society, but it is not illegal. There is a difference between law
Thereafter, in Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel
Court observed that two people who are in a live-in relationship without a
formal marriage are not criminal offenders.
In landmark case of S. Khushboo v. Kanniammal
, the Supreme Court held that a
living relationship comes within the ambit of right to life under Article 21 of
the Constitution of India. The Court further held that live-in relationships are
permissible and the act of two major living together cannot be considered
illegal or unlawful.
Thus, even while not venturing further into the remnant of many such judgements
that recognize, acknowledge and protect the right to be in a relationship with a
person of choice, we can infer that though there isn’t a similar widespread
consensus in respect of the general society yet, the courts have protected such
right. However, up until very recent times such acknowledgement was only
extended to straight (couples where the individuals are from the opposite sexes)
couples and not same sex couples.
S. Sushma v. Director General of Police,
WP No. 7284 of 2021
Landmark judgements are always momentous, often in retrospect, yet there may
very well be one such brilliant judgement in the making and we ought to be
privileged in a way to be privy to it. Recently a petition was filed in the
Madras High Court by two girls who were in a relationship with each other,
seeking protection from their parents who were vehemently against their
On the 29th of March 2021, Justice N. Anand Venkatesh
issued directions to the families of two girls respectively, to attend
counselling sessions with a counsellor who specializes in working with LGBTQI+
individuals so as to handle the issue with sensibility and thought.
Justice Anand went on to say, “I am also trying to break my own preconceived
notions about this issue and am in the process of evolving, and sincerely
attempting to understand the feelings of the petitioners and their parents;
thereafter, I will proceed to write a detailed order on this issue”
It is definitely wholesome and inspiring to see such progressiveness exemplified
by the High Court of Madras, especially given the stature and platform it
possesses. Needless to say, the winds of change that have now been manifested by
the mast of the this impending judgement will go on to allow and have many more
following suit. Yet, a sense of disillusionment is very much beneath the thin
surface of this juncture.
The courts have been able to interpret Article 21 and the ideologies and
principles it represents independent of the article itself simply because the
legislation does not say otherwise, however the same cannot be said for the case
The Centre And The Central Issue Of Same Sex Marriages
Seeking dismissal of petitions praying for recognition of same-sex marriages
under existing laws, the Centre Thursday told the Delhi High Court that a
marriage in India necessarily depends upon “age-old customs, rituals, practices,
cultural ethos and societal values”, and that in reading down the provision of
Section 377 of the IPC covering homosexuality, the Supreme Court had only
decriminalised “a particular human behaviour” but “neither intended to, nor did
in fact, legitimise the human conduct in question”.
“The fundamental right under Article 21 is subject to the procedure established
by law and the same cannot be expanded to… include the fundamental right for
same sex marriage to be recognised under the laws… which in fact mandate the
contrary,” the Centre’s reply says:
Living together as partners or in a relationship with a same-sex individual is
“not comparable” with the “Indian family unit concept” of a husband, wife and
children, the government said, arguing that the institution of marriage has a
“sanctity”. “In our country, despite statutory recognition of the relationship
of marriage between a biological man and a biological woman, marriage
necessarily depends upon age-old customs… societal values.”
The government also argued that while marriage happens between two private
individuals, it “cannot be relegated
” to merely a concept within the domain of
privacy of an individual. On the other hand, the Centre told the Delhi High
Court, marriage is recognised as public recognition of a relationship, with
which several statutory rights and obligations are attached. It also said that
the Supreme Court judgment in the Navtej Singh Johar case
 “does not extend
the right to privacy to include a fundamental right in the nature of a right to
marry by two individuals of same gender”.
The stark difference in the prospects of same-sex marriages as opposed to that
of same-sex relationships under the eyes of the law is simply that the
legislations explicitly acknowledge only heteronormative forms of the former,
while it simply does not place any qualification along the lines of the same for
the latter. Thus, even if the court wants to uphold the martial rights of same
sex marriages it simply cannot as the law in so much as everything we have thus
fair does not give rise to do so.
As idealistic as it may seem for the court to
once again be a knight in shining Armor and save the day as far as same-sex
marriages are concerned, in truth and realism it would only be ideal that the
court be able to do so while still not overstepping the division of powers its
governed by, but sadly the legislative don’t seem keen let alone open to that
Thus, India is in a complex state of affairs in a metaphysical sense, as though
we are driven by progressiveness and social evolution, we are also anchored by
customs and traditions and the ideologies and principles they represent, and
these often take up a mantle of sanctity and superiority than mere procedural
aspects of society.
One can ask that why in the first place do same-sex couples need to be able to
lawfully get married in the first place, can’t a mere relationship suffice ?
Sadly we fail to realise that such aspiration to marriage comes from a place
similar to that of the origin of the institution of marriage in itself, albeit
the so called natural form of it, consisting of a monogamous heterosexual
Simply to be able to enjoy the benefits and rights entailed by the
ability to avail such lawful marriage and not merely for the emotional and
mental acknowledgement of sorts it brings. Some compelling practical reasons to
seek social and legal recognition of same-sex relationships are as follows;
Certain legal benefits such as succession, maintenance, and pension rights that
are available to married couples are not available to same-sex couples.
benefits from laws like the Employment Provident Fund Scheme, 1952 and Workmen’s
Compensation Act, 1923 are given only to those related by blood or marriage.
After the Central Adoption Resource Authority (CARA) issued guidelines for
adoption, single persons and unmarried couples have found it increasingly
difficult to adopt. Further, not all persons in same-sex relationships are
seeking radical changes in society and its institution, and many are politically
Many of them merely desire acceptance without discrimination and
the option to have a legally recognised partnership.
In all appreciation, the progress India as a state has made in commendable given
its relatively conservative roots and culture driven societies, and it is even
more commendable that the courts have been the conscience of the people, and
not just heteronormative people. The glimmer of hope given by the continuously
growing acceptance of the LGBTQ+ community both from the law as well as society
in general is nothing short of amazing. A large part of this is owed to the
jurisprudential development of the courts while addressing such matters which in
turn translates into the better understanding and as a result, acceptance of
such prospects by the people of the land.
However this glimmer of hope is but a smouldering wick in the cold hands and heart of the legislation that fails to
acknowledge the legitimacy of the emotional and physiological development of
human beings as much as it acknowledges the legitimacy of the customs and
traditions and notions it so dearly holds and adheres. It isn’t impossible for
these to co-exist, and hopefully, with the persistent and endearing efforts of
the more inclusive and forward thinking people, soon the legislature too will be
able to make peace with its internal conflict, giving rise to a functional
amalgamation of essential human rights and an amicably culture rich, yet
thoughtful and progressive society.
Written By: Joshua Immanuel Samuel
- Crl. Misc. WP No. 11367 of 2020
- Right To Choose A Partner Is A Fundamental Right.” Legal Service India -
Law, Lawyers and Legal Resources, www.legalserviceindia.com/legal/article-4219-right-to-choose-a-partner-is-a-fundamental-right.html.
- AIR 2006 SC 2522
- 2001 SCC OnLine All 332.
- (2006) 8 SCC 726
- (2010) 5 SCC 600
- WP No. 7284 of 2021
- W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016
- Ahsan, Sofi. “Centre Opposes Same-Sex Marriage in Delhi HC, Says Not
Comparable with 'Indian Family Unit Concept'.” The Indian Express, 25 Feb.
- Ravichandran, Nayantara. “Legal Recognition of Samesex Relationships in