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Same Sex Marriage in India


Recently, The Supreme Court has delivered its long awaited verdict rejecting petitions to legalise same-sex marriage and delved deeper on the provisions of the Special Marriage Act, 1954 to examine the issue thoroughly, which have convergence and interrelationship with homosexuality.


GS II: Polity and Governance

Dimensions of the Article:

  1. Supreme Court’s Observation on Same-Sex Marriage
  2. Legality of Same-Sex Marriages in India
  3. Arguments in Favor of Same-Sex Marriage
  4. Arguments Against Same-Sex Marriage

Supreme Court’s Observation on Same-Sex Marriage


A five-judge Constitution Bench of the Supreme Court, led by the Chief Justice of India, delivered a 3:2 verdict regarding the constitutional validity of same-sex marriages.

Verdict and Rationale:
  • Majority Opinion: The Chief Justice of India’s opinion concluded that the court cannot grant constitutional validity to same-sex marriages within the existing Special Marriage Act (SMA) 1954. The responsibility to create such laws rests with the Parliament and state legislatures.
  • Dynamic Nature of Marriage: The Supreme Court acknowledged that the concept of marriage is not static and can evolve over time.
  • Equal Rights for Queer Persons: The court affirmed that individuals in the queer community have an equal right and freedom to enter into a “union.”
  • Absence of Fundamental Right to Marry: All five judges on the Bench unanimously agreed that there is no fundamental right to marry under the Constitution.
Minority Opinions (CJI and Justice Kaul):
  • The Chief Justice of India and Justice Kaul supported the extension of ‘civil unions’ to same-sex couples.
  • A ‘civil union’ grants legal status to same-sex couples, providing them with specific rights and responsibilities similar to those of married couples. However, it does not have the same recognition in personal law as marriage.

Legality of Same-Sex Marriages in India

Recognition as a Statutory Right:
  • The right to marry is not explicitly recognized as a fundamental or constitutional right in the Indian Constitution; it is considered a statutory right.
  • The acknowledgment of marriage as a fundamental right has developed through judicial decisions of India’s Supreme Court, which are binding on all courts throughout India under Article 141 of the Constitution.
Earlier Supreme Court Views on Same-Sex Marriages:

Marriage as a Fundamental Right (Shafin Jahan v. Asokan K.M. and others, 2018):

  • The Supreme Court, in this case, referenced Article 16 of the Universal Declaration of Human Rights and the Puttaswamy case.
  • It held that the right to marry a person of one’s choice is an integral part of Article 21 of the Indian Constitution.
  • Article 16(2) of the Indian Constitution prohibits discrimination based on religion, race, caste, sex, descent, place of birth, residence, or any of them.
  • The right to marry is intrinsic to the liberty guaranteed by the Constitution as a fundamental right, allowing individuals to make decisions central to their pursuit of happiness. Matters of belief and faith, including whether to believe, are at the core of constitutional liberty.

LGBTQ Community Entitled to Constitutional Rights (Navjet Singh Johar and others v. Union of India, 2018):

  • The Supreme Court held that members of the LGBTQ community are entitled to the full range of constitutional rights, including the liberties protected by the Constitution.
  • They are entitled to equal citizenship and the “equal protection of the law.”

Arguments in Favor of Same-Sex Marriage:

  • Equal Rights for All: All individuals, regardless of their sexual orientation, should have the right to marry and form a family.
  • Legal Equality: Same-sex couples should have the same legal rights and protections as opposite-sex couples.
  • Anti-Discrimination: Non-recognition of same-sex marriage amounts to discrimination that infringes upon the dignity of LGBTQIA+ couples.
  • Social and Economic Benefits: Marriage provides social and economic benefits to couples and their families, which should also be extended to same-sex couples.
  • Fundamental Right: The Chief Justice of India acknowledged that cohabitation is a fundamental right, and the government has a duty to legally recognize the social impact of such relationships.
  • Gender Complexity: The Supreme Court of India recognized that biological gender is not absolute, and gender is more complex than just one’s genitals. There is no absolute concept of a man or a woman.
  • Global Principles: Same-sex marriage is legal in many countries around the world, and denying this right in a democratic society contradicts global principles.

Arguments Against Same-Sex Marriage:

  • Religious and Cultural Beliefs: Many religious and cultural groups believe that marriage should be limited to a union between a man and a woman, based on their traditional values and principles.
  • Marriage’s Primary Purpose: Some argue that the primary purpose of marriage is procreation, and same-sex couples cannot have biological children, which they believe goes against the natural order.
  • Legal Complications: Concerns exist that legalizing same-sex marriage could create complications related to inheritance, tax, and property rights.
  • Resistance to Legal Changes: Some argue that it would be too difficult to modify existing laws and regulations to accommodate same-sex marriage.
  • Societal Stigma and Discrimination: When queer couples adopt children, they may face societal stigma and discrimination, which can negatively impact the child’s emotional and psychological well-being, especially in societies where LGBTQIA+ acceptance is not universal.

About Special Marriage Act, 1954

  • The Special Marriage Act, 1954 is an Act of the Parliament of India enacted to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party.
  • Marriages solemnized under Special Marriage Act are not governed by personal laws.

The Act has 3 major objectives:

  • to provide a special form of marriage in certain cases,
  • to provide for registration of certain marriages and,
  • to provide for divorce.
Applicability of the Act
  • Any person, irrespective of religion.
  • Hindus, Muslims, Buddhists, Jains, Sikhs, Christians, Parsis, or Jews can also perform marriage under the Special Marriage Act, 1954.
  • Inter-religion marriages are performed under this Act.
  • This Act is applicable to the entire territory of India and extends to intending spouses who are both Indian nationals living abroad.
  • Indian national living abroad.
Succession to the property
  • Succession to the property of person married under this Act or customary marriage registered under this Act and that of their children, are governed by Indian Succession Act.
  • However, if the parties to the marriage are Hindu, Buddhist, Sikh or Jain religion, the succession to their property will be governed by Hindu succession Act.
  • The Hindu Marriage Act is pertinent to Hindus, though the Special Marriage Act is appropriate to all residents of India regardless of their religion applicable at Court marriage.

-Source: Indian Express

December 2023