Kishan Dutt
Legality of Homosexual Marriages – Same Sex Marriages

Legality of  Homosexual Marriages – Same Sex Marriages

Legality of  Homosexual Marriages – Same Sex Marriages


Legalizing same-sex marriage is a recent socio-legal issue subject to the heated debate before the Indian legal system and citizens. While this issue addresses the provisions of many personal laws, it also challenges the constitutional validity of some provisions regarding conditions of a valid marriage and sexual orientation or gender identity under the law. This blog simplifies the apropos of its legal scenario, giving an understanding of its crucial correlated aspects.




The legal paradigmaround marriage equality and same-sex marriages has undergone a significant shift in recent years. In the realm of societal progress and human rights, many countries around the world have recognised the rights of same-sex couples to marry, while others are still struggling to effectively deal with the issues revolving around it. In countries where same-sex marriage is recognized, there has been a growth in the importance of equal rights and protections for all individuals, regardless of their sexual orientation. This has led to a more inclusive and diverse society, where everyone is free to love and marry whoever they choose. However, there are still many challenges that remain, including discrimination and prejudice against the LGBTQ+ community. In India, same-sex marriage is not recognised under the Indian law. Section 377 of the Indian Penal Code criminalized homosexual activity till 2018. While the Hon’ble Supreme Court of India partially struck down this section in 2018, same-sex marriage is still not recognized. However, some positive developments have occurred over the past several years. In 2014, the Indian Supreme Court recognized transgender individuals as a "third gender" and granted them legal recognition through the case of NALSA vs UOI AIR 2014 SC 1863.


Challenged legal provisions and rights

The legal paradigm for same-sex couples in India is challenging; growing movements and advocacy groups are working to promote greater acceptance and rights for the LGBTQ+ community. In addition, the recognition of marriage equality not only embodies the principles of fairness and equal opportunity under the law but also represents a triumph of empathy, compassion, and respect for the diverse tapestry of human relationships. Some challenges raised in the plea for marriage equality are as follows.


Special Marriage Act, 1954

The Special Marriage Act 1954 is a law in India that provides a legal framework for civil marriage between individuals of different religions or castes. The act was designed to promote social harmony and equality by allowing individuals to marry regardless of their religion or caste. It provides a formal and legal procedure for couples who wish to marry without regard to their religion or caste. This means that couples who belong to different religions or castes can legally marry and enjoy the same legal rights and protections as any other married couple. The petitioners involved in the plea for marriage equality in the case of Supriya Chakraborty vs Union Of India on 6 January 2023 and argued that Section 4(c) of the Act, which prominently prescribes conditions relating to the solemnization of special marriages, recognizes marriage only between a ‘male’ and a ‘female’. Thus, this discriminates against same-sex couples by denying them matrimonial benefits such as adoption, surrogacy, employment, joint bank accounts, and retirement benefits.It appeals to broaden the provision to include same sex marriages on such grounds. However, Only certain provisions of the Act are challenged in the plea and not the entire Act.


Constitutional rights

Another issue raised before the Hon’ble Supreme Court in the plea for marriage equality was based on the challenges on grounds for equal rights and protection granted to each citizen. The appeal was filed via a writ petition under Article 32 of the Constitution of India. The Petitioner’s arguments challenged the exclusion of same-sex couples from the solemnisation of marriage under the Special Marriage Act. This led to the contentionthat the provision of the Act is violative of Articles 14, 15, 19, and 21, which are their fundamental rights. In addition, the Hon’ble SC has previously observed groundbreakingand applied principles in its judgments in various cases/pleas for marriage equality. Some of the critical points of SC's observations are given hereunder.



The Hon’ble SC, in the case of K S Puttuswami vs UOI (2017) 10 SCC 1 (CB), concurred that the rights of LGBTQ+ shall not be considered “so-called” as they are “real rights” based on sound constitutional doctrine. Hence, they fundamentally have the right to life, privacy and dignity under the Constitution that forms the basis of liberty and freedom. 1. In Navtej Singh Johar and Orsvs UOI (2018) 10 SCC 1 (CB), the  Hon’ble SC’s  conferred that the members of the LGBTQ+ community are equally entitled to equal citizenship without discrimination. It further added that the fulfilment ofsexual intimacies must not be subjected to discriminatory behaviour, and the choice of whom to partner with is intrinsic to constitutional protection. 2. The historic decision of decriminalising consensual sexual conduct by reading down Section 377 of IPC  had a vital impact on the lives of same-sex couples. It placed a positive obligation on the state to recognise rights which bring true fulfilment to their relationships.

3. In similar other cases, the Hon’ble SC held that Article 21 guarantees that an adult person has the right to marry a person of their choice.



The decision in Navtej Singh Johar’s case, along with other pleas made before the court, obligated all High Courts across the country to grant protection to such couples on the same footing as they protect inter-caste and inter-faith couples.  Many countries worldwide have legalised same-sex marriage, including the United States, Canada, and several countries of Europe. India has made some progress towards LGBTQ+ rights in recent years, including decriminalizing homosexuality in 2018. However, the Hon’bleSupreme Court's final ruling on recognizing same-sex marriages carries significant weight and importance in imparting marriage equality and will be a landmark moment in Indian legal history. The final judgment on marriage equality is still pending before the the Hon’ble SC on whether homosexual marriages will be recognized in India.




This blog is written and published for informational and awareness purposes only. If your rightshave been infringed and you want to get specific advice about the remedies available to you, connect with a lawyer or legal expert to address your concerns. This blog must not be treated aslegal advice in any scenario.






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