Homosexual marriage refers to the coming together of two people of the same
sex and recognising each other as their lifetime partner by following the
rituals and customs they believe in. However, this practice has been
experiencing opposition from the society for a long time now, thanks to the
orthodox public cast of minds. The LBTQ+ community has been fighting for this
recognition since time immemorial and rightly so.
They are also as equal citizens of the country as any other heterosexual Indian
national; hence rightfully entitled to the constitutional rights and liberty. It
is therefore a matter of regret that India still hasn't come up with a
legislation providing this community with exclusive rights to marriage,
adoption, guardianship, succession, maintenance, pension rights, health benefits
that are available to married couples but not to homosexual couples.
Not ignoring the historical cis normative and heteronormative framing of Indian
laws, the struggle of the courts in dealing with the complexities around LGBTQIA+
issues is not in the slightest bit, bewildering. At the same time, it cannot be
overlooked that certain judgements have provided relief to the concerned coterie
and paved way for subsequent relaxations.
The Supreme Court's landmark NALSA judgement in 2014 gave recognition to their
constitutional rights of the for the first time. Subsequent judgements like
Justice K.S. Puttaswamy(Retd.) & anr. vs Union of India & ors.
Navtej Singh Johar & ors. vs Union of India
Thr. Secretary Ministry of Law
and Justice (2018) did the same for sexual minorities.
This project has been undertaken in lieu of the need for proper legal provisions
regarding same sex marriages in the country. The previous judgements have for
sure paved the way but, the rights need to be enacted into proper legal
provisions to ensure recognition of the same. Recent hearings in Delhi High
Court regarding live streaming of proceedings in the case concerning recognition
and registration of same sex marriages necessitate the same.
People arguing in the favour of legalising homosexual marriages demand the
implementation of the equality clause in the constitution. They call the
unavailability of protection to the same sex couples as being discriminatory and
hence unconstitutional. In various foreign courts where the laws prohibiting or
not allowing same sex marriages were held to be unconstitutional, also invoking
due process and equal protection clause.
The courts distinctly mentioned that right to marry being an individual right to
liberty, also includes the equality component. A certain group of people cannot
be deprived of the right to marriage granted to others, without a very
compelling justification which, the courts held, does not exist.
Some people also argue about the ambiguity in The Hindu Law which does not
explicitly mention about the marriage being solemnized between two opposite
sexes, rather between two Hindus. However, the language of the act using
'she/her' pronouns in Section 13 of the act clearly points out the intention of
legislature to limit the concept of marriage to heterosexual unions only. Thus,
the question as to what the correct interpretation of this law can be is highly
debatable and subject to various interpretations.
Supporters also take assistance of the view of Delhi High Court in Naz
Foundation case that the term 'sex' in Article 15 is inclusive of the sexual
orientation and hence, prohibits discrimination on the basis of the same.
Uttarakhand High Court also quoted in June 2020 about the live-in relationships
of the same sex couples not being unconstitutional. The court observed that:
"It is a fundamental right which is guaranteed to a person under article 21 of
the Constitution of India, which is wide enough to protect an inherent right of
self-determination with regards to one's identity and freedom of choice with
regards to sexual orientation of choice of partner".
Similarly, Orissa High Court and Punjab & Haryana High Court have ruled in
favour of constitutional validity of same sex live-in relationships; citing
protection under Article 21 of the Constitution of India.
Homer Clarke, a scholar writes that the most significant function of marriage
today is that it furnishes emotional satisfactions to be found in no other
relationships. For many people, it is considered as a refuge from coldness and
impersonality of contemporary existence. This implies that marriage is a sacred
union which goes much beyond the gender boundaries and therefore, should not be
denied to any individual.
Several movies like Ek Ladki ko Dekha toh Aisa Laga(2019), The Journey (2004)
depict homosexual relationships, the latter inspired by two real life lesbian
lovers. Celebrities like Vikram Seth and Karan Johar have openly come out as a
part of the third gender community. Swami Laxmi Narayan Tripathi from Thane,
Maharashtra became the first transgender to represent Asia Pacific in the UN.
So, all in all this fraction advocates that same sex marriage should be
legalised owing to India being the world's largest democracy where, equal right
and protection to all is guaranteed in the constitution.
The government on Feb 25, 2021 asked the Delhi High Court to dismiss the cases
demanding legislation for same sex marriages arguing that "marriage is based on
age-old customs, rituals, practices, cultural ethos and societal values and that
there exists a legitimate state interest in preventing same sex couples from
Again, on 24 May, 2021 the government asked the court to delay discussion on
four petitions asserting that "nobody is dying because of the lack of marriage
registration" and that their focus was on urgent and immediate pandemic related
The Solicitor General of India, Tushar Mehta commented that the term 'spouse'
and 'marriage' in the Citizenship Act referred to heterosexual couples only, and
so, de facto excluded same-sex couples. Moreover, this was a position the
government was comfortable with.
Further stating that Navtej Singh Johar case judgement decriminalised
private, consensual same-sex activity, he argued that the judgement therefore
could not be attributed to permitting homosexual people marriage rights. Another
statement from the Union Ministry of Law and Justice read that 'legitimate state
interest lay in limiting the institution of marriage to the heterosexual couples
only in an attempt to preserve social morality.'
The Apostolic Alliance of Churches and the Utkal Christian Council (Orissa)
opposed the reading down of section 377 stating that "the decriminalisation of
section 377 IPC will open a floodgate of social issues which the legislative
domain is not capable of accommodating, as same sex marriages would become
social experiments with unpredictable outcome."
It is claimed that children in such unions would be denied the affection of
either mother or father; as a result, would have negative repercussions on their
natural development. Psychologists however, are of the opinion that it is not
the gender, rather the love and commitment of parents which makes the
There Were Several Cases Dealing With Third Gender Rights Which Were
Dismissed By The Courts; A Brief Account Of Which Is Given Below:
- 2019- Delhi High Court dismissed appeal to make rules and regulations
regarding same sex laws under Hindu Marriage Act,1955.
- 2019- women in state of Uttar Pradesh were denied recognition to their
marriage by the local registrar citing lack of relevant legal provisions.
- 2020- lawsuit was filed in Kerala High Court on being denied the right
to marriage under Special Marriage Act citing violation of principles of
equality, non- arbitrariness, individual dignity and personal autonomy under
articles 14,15(1), 19(1)(a) and 21 of the Constitution of India.
- 2022- The Allahabad High Court similarly dismissed a case brought forth
by a Hindu lesbian couple who wished to marry under the Special Marriages
Act. The court also dismissed a habeas corpus claim brought by the mother of
one of the women.
Instances Of Indian Same Sex Marriages
There must have been several cases of same sex marriages in the country, however
only a small fraction of them have been reported. In this section we will look
at a few of them.
In 1987, the national press reported the story of two policewoman who married
each other by following Hindu rituals and customs in Central India. A large
chunk of the cases reported are from the rural areas and small towns. The
families sometimes may approve, while disapproving the other times.
In 2018, a Yavatmal native, Hrishi Mohankumar Sathawane (40) married Vinh, said
to be a Vietnamese on December 30, days before the constitutional validity of
sec 377 was to be decided. Another instance in Agra saw two lovers marrying each
other where one of them changed their appearance into that of a boy. The family
came to know of the truth after a week and thrashed the other girl. Following
this, the girls threatened to commit suicide if separated.
2018 also witnessed the marriage of Nikesh Usha Pushkaran and Sonu MS in the
premises of Guruvayur Temple, Thrissur, Kerala. A gay couple in Hyderabad
solemnised their relationship in a same sex wedding in December,2021.
In June 2020, a lesbian couple from Mahisagar district, Gujarat filed a petition
with the Gujarat High Court seeking police immunity from their families and
recognition of their right to cohabitation. The couple entered into a
'friendship agreement' in an attempt to legitimise their relationship. The High
Court granted their request on 23 July,2020 and instructed the Mahisagar police
to provide protection to the couple.
Looking at these cases give us a fair idea of how keen these couples are, on
getting their relationships legally recognised and protected. As already
mentioned before, there are probably several unreported cases but in no way,
they are less significant than the instances listed here. It is time that the
efforts of this community are rewarded and provided with the legal sanction
their relationships deserve.
History Of Judgements
We will have a peek on the breakthrough judgements that responded to the call of
the community and provided them with reliefs.
- Naz Foundation vs Government of NCT of Delhi & ors. (2009):
Challenged the constitutional validity of section 377 IPC (criminalisation
of voluntary carnal intercourse against the order of nature), as being
violative of articles 14 (equality before the law or equal protection of
laws within the territory of India), 15 (forbids discrimination on the
grounds only of religion, race, caste, sex, place of birth), 21 (right to
protection of life and personal liberty) of constitution of India.
The Delhi High Court struck down the concerned section as unconstitutional
for the first time.
- Suresh Kumar Koushal & ors. vs Naz Foundation & ors. (2013):
Challenged the Delhi High Court decision in Naz Foundation case before the
The Hon. Supreme Court reversed the Delhi High Court decision stating
reasons that the matter did not demand judicial interference, thereby
upholding the constitutional validity of section 377 IPC.
- National Legal Services Authority vs Union of India & ors. (2014):
Challenged the verdict in Suresh Kumar Koushal & ors. vs Naz Foundation &
ors. case before the Supreme Court.
The Hon. Supreme Court recognised transgenders as the 'third gender' and
said that they deserve equal rights as provided to their other societal
counterparts. The court also instructed the centre and state governments to
take steps to treat them as socially and educationally backward classes of
citizens and extend all kinds of reservation in cases of admission in
educational institutions and for public appointments.
- Justice K.S. Puttaswamy(Retd.) & Anr. vs Union of India & Ors.
Justice D.Y. Chandrachud delivered that the basic elements under the ambit
of "privacy" includes preservation of personal intimacy, purity of family
life, marriage, procreating and sexual orientation. He went further ahead
and stated that every individual, inclusive of the third genders, have
liberty and freedom, within right to life and included under privacy.
- Navtej Singh Johar & Ors. vs Union of India thr. Secretary Ministry
of Law and Justice (2018):
The Hon. Supreme Court struck down section 377 IPC,1860 stating that it was
violative of the liberty of LGBTQIA+ community. The statement read that they
had autonomy to make personal decisions and the right to full dignity.
Notwithstanding gender boundaries, every individual has the right to choose
their partners, be it for marriage, or engaging in a sexual intercourse with
the required consent.
- Shakti Vahini vs Union of India and ors. (2018):
The Hon. Supreme Court observed the following:
The choice of an individual is an inextricable part of dignity, for dignity
cannot be thought of where there is erosion of choice. True it is, the same
is bound by the principle of constitutional limitation but in the absence of
such limitation, none, we mean, no one shall be permitted to interfere in
the fructification of the said choice. If the right to express one's own
choice is obstructed, it would be extremely difficult to think of dignity in
its sanctified completeness.
The LGBTQIA+ rights advocates believe that a combined reading of Shakti
Vahini and Navtej Singh Johar cases, could facilitate the recognition of
same-sex unions within the Special Marriage Act,1954.
- Arunkumar and anr. vs The Inspector General of Registration and ors.
The Madras High Court Justice G.R. Swaminathan observed that the term
'bride' in Section 5 (conditions for a Hindu Marriage) of the Hindu Marriage
Act must not have a static meaning. It has to be interpreted in the light of
changing socio-cultural norms to also include transwomen, intersex people,
and other transgender people who identified as women.
- Shafin Jahan vs Asokan K.M. & ors. (2021):
The Hon. Supreme Court of India established that the ability to choose and
marry a spouse is a constitutionally secured freedom. The intimacies of
marriage reside inside an inviolable core zone of private and that society
has role to play in influencing our choice of spouses.
Hence, the abovementioned judgements when read, reflect upon the fact that India
is gradually but significantly proceeding in its struggle for recognising third
gender rights. We hope that certain similar judgements in the future provide the
community with a fast-track portal for achieving the much-desired same sex
Attempts At Introducing Legislation And Awareness
Let us have a look at some of the attempts which were made to introduce a proper
legislation legalising the same sex unions.
- First is the concept of Uniform Civil Code i.e., UCC. It was introduced
in 2017 and aims at legalising same sex marriages in the country. According
to its definition of marriage, it is "the legal union of a man and woman, a
man with another man, a woman with another woman, a transgender with another
transgender or a transgender with a man or a woman." It also provides
couples with the right to adoption regardless of the adopting couples'
- On April 1, 2022, MP Supriya Sule from the Nationalist Congress Party
introduced a bill to the Lok Sabha in an attempt to validate same sex unions
under the Special Marriage Act, 1954. This proposal was aimed at amending
various sections of the act to provide same-sex couples with the same legal
rights as the opposite sex couples. It would also determine the marriage age
for male and lesbian couples i.e., 21 and 18 years respectively.
- As a part of Rashtriya Kishor Swasthya Karyakram (RKSK), which focuses
on health programmes for adolescents, the Ministry of Health and Family
Welfare launched the Saathiya Resource Kit (2017). This kit aimed at
sensitising the adolescents about gender roles. One out of the several aims
was telling the kids about same sex attraction and assuring them of its
Reading of the detailed report offered by this project compels us to think of
the ways which can ensure validation of homosexual marriages in the country. The
contention about allowing it under the Hindu Marriage Act, 1955 because it
doesn't "explicitly specify the sex of the couples tying the knot", won't stand
on a closer and careful reading of the act. It is an established principle that
no provision in a statute and no word in any section can be construed in
isolation. Instead, it is suggested to gather the mens or sententia legis of the
Section 13(2)(iv) of the Act:
"that her marriage (whether consummated or not) was solemnised before she
attained the age of fifteen years and she has repudiated the marriage after
attaining that age but before attaining the age of eighteen years"
Clearly points out the intention of legislature to restrict the practice of
marriage to heterosexual couples only. This leaves us with the clear indication
of the gender of the bride, nullifying the argument of uncertainty in gender
A viable yet strenuous option can be the Special Marriages Act,1954. It can be
amended for including homosexual marriages under its ambit. In the main
paragraph of the section, the statement mentioned is "a marriage may be
solemnised between two persons" and not between a male and a female. However, in
clause (c) dealing with the age of the parties to the marriage, the words 'male'
and 'female' are expressly used.
It can be interpreted that the act does not explicitly mentions the marriage to
be solemnised between a male and a female. But this interpretation falls flat on
an examination of Section 15 of the act. Clause (a) of section 15, uses the
- A ceremony of marriage has been performed between the parties and they
have been living together as husband and wife ever since.
The abovementioned statement conveys the idea that the subjects of the Special
Marriage Act are also male and female and a wedding between two homosexuals has
not been included in this act. Hence the need for corresponding changes becomes
necessary to make the concerned community feel equally respected and included.
In conclusion, be it amending the already existing laws or bringing an entirely
new law in total, the same sex unions need to be legitimised and given legal
sanction. We cannot let this community suffer any more torment especially in a
democratic country like India. Indian constitution and laws have always made
sure to be the 'home' for every community, affectionately incorporating the
diversity within it. It is time to extend the shelter of this home to our
LGBTQIA+ counterparts as well. Only then, can India uphold its title as the
world's largest democracy in real terms.
- Naz Foundation vs Government of Nct of Delhi and others (AIR 2009, WP(C) No.
- Navtej Singh Johar & Ors. versus Union of India thr. Secretary Ministry of
Law and Justice (AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016 D. No.