Same Sex Marriage in India 2024, Judgement and Sections

A five-judge Bench of the Hon’ble Supreme Court of India in the case of Supriyo v. Union of India, announced a 3:2 verdict on petitions seeking the rights for members of the LGBTQ community to marry and choose family. The Court declined to legalize same-sex marriage, placing it upon the Parliament and State governments to decide if non-heterosexual unions can be legally recognized.

However, all the Judges on the bench agreed that the Central Government shall constitute a Committee to examine the rights and entitlements of persons in the queer union, without legal recognition of their relationship as a “marriage”.

Same-Sex Marriage

Same-sex marriage refers to a legally recognized marriage between two individuals of the same sex. It grants same-sex couples the same legal rights, responsibilities, and protections as opposite-sex couples. This includes matters related to inheritance, taxation, property rights, adoption, and spousal benefits. The recognition and legalization of same-sex marriage vary by country and region, reflecting differing cultural, religious, and legal attitudes towards LGBTQ+ rights.

Relief claimed by Petitioners

They prayed for the legalization of same-sex marriage in the country. They also sought joint adoption rights, nominee rights concerning healthcare decisions, guarantee by all State governments of their safety and security, directions to the Union and State governments, and district and police authorities to protect adult, consenting LGBTQIA+ couples from their families.

Existing laws dealing with Marriage

The Constitution does not expressly recognize a fundamental right to marry. In India, diverse personal laws on marriage make forced marriage illegal, with the right to marry recognized by both Hindu and Muslim laws.

Other regulations in India that govern a person’s right to marriage include:

• The Child Marriage Prohibition Act, 2006
• The Guardians and Wards Act, of 1890
• The Majority Act, 1875
• The Family Courts Act, 1984
• The Protection of Women from Domestic Violence Act of 2005

Precedents

• In Lata Singh v. State of Uttar Pradesh (2006)SC, the Supreme Court ruled that because the petitioner was a major, she had the right to marry whoever she wanted and that there was no statute prohibiting an inter-caste marriage.
• The Constitution Bench of nine judges in Justice KS Puttaswamy (retd) and another v. Union of India and others. The Court unanimously held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21”.
• In Shakti Vahini v. Union of India, the Court held that the right of a person’s choice to marry whom she pleases is an inherent part of individual dignity and intrinsic to Article 21.
• SC reiterated this right in Shafin Jahan v. Asokan K.M. and others.
• The five-judge Constitution Bench decision in Navjet Singh Johar and others v. Union of India, which declared Section 377 of the Indian Penal Code, 1860, a colonial-era provision that had criminalized homosexual relations, as unconstitutional to the extent that it prohibited voluntary sexual intercourse between two consenting adults. 

Government’s statements

• 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 a same-sex marriage to be recognized under the laws of the country which mandate the contrary.
• The institution of marriage had a certain sanctity attached to it across the country.
• It enjoins the parties belonging to different sexes to bring up children in the “most natural way possible”.
• Several rights and liabilities flow from such a marriage.
• When queer couples adopt children, it can lead to societal stigma, discrimination, and negative impacts on the child’s emotional and psychological well-being, especially in Indian society where acceptance of the LGBTQIA+ community is not universal.
• The primary purpose of marriage is procreation, and that same-sex couples cannot have biological children.

Special Marriage Act

The Special Marriage Act, 1954 has provisions for civil marriage for people of India and all Indian nationals in foreign countries, irrespective of religion or faith followed by either party.

Court’s Decision

• • Though all five Judges accepted that it was time to end discrimination against same-sex couples, they failed to reach a consensus on giving queer couples the status of a legally recognized “civil union,” with a majority of three Judges holding that any legal status to such a union can only be through enacted law.
  • SC held that the Court cannot strike down or read down the provisions of the Special Marriage Act owing to “institutional limitations” as the same would fall within the domain of the Parliament and the Legislature.
  • The Court felt that if the SMA was held void for excluding same-sex couples, it would mean going back to a time when two persons of different castes and religions could not marry.
  • Marriage is a “social institution” and there could not be an unqualified right to marry which was to be treated as a fundamental right.
  • Transgender persons in heterosexual relationships had the right to marry under the existing laws including personal laws.

A Unanimous decision-

• Same-sex couples do not have a ‘right to marry’.
• Transgender persons have a right to marry under the current framework.
• Same-sex couples have a right to choose their partners and cohabit with one another.

Decisions by 3:2

• Queer couples do not have the right to adopt
• Couples do not enjoy a right to a civil union

Way Ahead

According to the Human Rights Campaign, a US-based LGBTQ advocacy group, only 32 countries around the world recognize gay marriage. Queer rights activists, while relieved about the recognitions granted in the minority judgment, were disheartened with the final verdict saying,“It’s a long road to marriage equality and other rights”.

Educating the masses about the difference between Gender and sexuality would bring positive change in social attitudes towards same-sex individuals/couples. India has taken a giant leap towards modernity, acceptance, and equality, and now the need of the hour is to maintain equality before the law of all sexual orientations and identities. 

Conclusion

While the landmark judgment in 2018 decriminalizing homosexuality marked a significant step forward, the fight for marriage equality remains ongoing. In conclusion, while the path to legalizing same-sex marriage in India is complex and challenging, the progress made in recent years is undeniable. The fight for equality is far from over, but with continued advocacy, education, and societal change, the dream of marriage equality can become a reality for millions of LGBTQ+ individuals in India.

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