Introduction
Marriage, as a social and legal institution, has traditionally been understood as a union between a man and a woman. However, evolving social norms, increased visibility of LGBTQIA+ communities, and the global recognition of same-sex relationships have compelled legal systems to re-examine this traditional understanding. The debate around same-sex marriage is not merely about personal relationships; it fundamentally concerns constitutional rights, equality before law, human dignity, and the role of the State in regulating personal choices. In India, while homosexuality has been decriminalized, the question of legal recognition of same-sex marriage remains contentious and unresolved.
Understanding Same-Sex Marriage
Same-sex marriage refers to a legally recognized marital union between two persons of the same sex or gender. Legal recognition typically grants couples rights and obligations similar to those enjoyed by heterosexual married couples, including inheritance, adoption, maintenance, tax benefits, medical decision-making, and spousal privileges.
Globally, several countries including the United States, Canada, the United Kingdom, Germany, and Australia have legalized same-sex marriage, either through judicial interpretation of constitutional rights or legislative enactments. These developments have significantly influenced international human rights discourse.
Global Legal Developments
The legal recognition of same-sex marriage has often been achieved through constitutional courts interpreting equality and liberty provisions expansively. A landmark moment occurred in Obergefell v. Hodges (2015), where the U.S. Supreme Court held that denying marriage to same-sex couples violated the Due Process and Equal Protection Clauses of the Constitution.
Similarly, international human rights instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights (ICCPR) emphasize equality, dignity, and freedom from discrimination, principles frequently invoked in arguments supporting same-sex marriage.
Indian Legal Position: Decriminalization Without Recognition
In India, the journey towards LGBTQIA+ rights gained significant momentum with the Supreme Court’s judgment in Navtej Singh Johar v. Union of India (2018). The Court struck down Section 377 of the Indian Penal Code to the extent it criminalized consensual same-sex relations between adults. The judgment recognized sexual orientation as an essential attribute of privacy, dignity, and personal liberty under Article 21 of the Constitution.
However, decriminalization does not automatically translate into recognition of marital or familial rights. Same-sex couples in India continue to face legal invisibility when it comes to marriage, adoption, inheritance, and social security benefits.
Constitutional Arguments in Favour of Same-Sex Marriage
Proponents of same-sex marriage in India rely heavily on constitutional principles:
1. Article 14 – Right to Equality
Denying same-sex couples the right to marry arguably creates an unreasonable classification based solely on sexual orientation. Such discrimination fails the test of intelligible differentia and rational nexus.
2. Article 15 – Non-Discrimination
Although Article 15 explicitly prohibits discrimination on grounds of sex, judicial interpretation has expanded the meaning of “sex” to include sexual orientation and gender identity.
3. Article 21 – Right to Life and Personal Liberty
The Supreme Court has repeatedly held that the right to life includes the right to choose one’s partner, dignity, autonomy, and privacy. Marriage, being an intimate personal choice, falls squarely within this protection.
4. Right to Family and Companionship
Marriage provides a legal framework for emotional, social, and financial security. Denial of this institution to same-sex couples deprives them of equal citizenship.
The Supreme Court’s 2023 Verdict
In Supriyo @ Supriya Chakraborty v. Union of India (2023), a Constitution Bench of the Supreme Court considered petitions seeking legal recognition of same-sex marriage. While the Court unanimously acknowledged the discrimination and hardships faced by same-sex couples, it declined to legalize same-sex marriage through judicial intervention.
The majority held that marriage, as an institution, falls within the legislative domain and that courts cannot rewrite existing marriage laws such as the Hindu Marriage Act or the Special Marriage Act. However, the Court strongly affirmed the right of queer persons to form relationships, cohabit, and enjoy constitutional protection against discrimination.
Importantly, the judgment emphasized that queer persons are entitled to dignity, equal protection, and freedom from harassment, and directed the State to ensure non-discriminatory access to services.
Legislative Challenges and Social Concerns
One of the primary arguments against judicial recognition of same-sex marriage is that Indian marriage laws are deeply intertwined with religion, customs, and personal laws. Critics argue that any change must be preceded by legislative debate and societal consensus.
Concerns are also raised regarding adoption, surrogacy, inheritance laws, and the impact on traditional family structures. However, it is equally argued that constitutional morality must prevail over social morality, as held in multiple Supreme Court judgments.
The Way Forward
While the judiciary has laid a strong constitutional foundation, meaningful recognition of same-sex marriage in India ultimately depends on legislative action. Parliament may consider amending secular marriage laws such as the Special Marriage Act, 1954, to adopt gender-neutral language and provide a civil marriage framework inclusive of all couples.
In the interim, incremental recognition through legal protections for live-in relationships, anti-discrimination laws, and social welfare inclusion can alleviate some hardships faced by same-sex couples.
Conclusion
The debate on same-sex marriage in India reflects a broader struggle between tradition and constitutional transformation. While decriminalization marked a historic step, true equality demands recognition, not mere tolerance. Same-sex marriage is not about redefining culture but about reaffirming constitutional values of equality, dignity, and freedom. As Indian society continues to evolve, the law must keep pace to ensure that love, commitment, and companionship are not denied legal protection based on sexual orientation.
CONTRIBUTED BY : ANSHU (INTERN)