Same-sex marriage, also known as gay marriage, is the marriage of two people of the same sex or gender.
As of 2022, marriage between same-sex couples is legally performed and recognized in 33 countries.
India provides same-sex couples rights and benefits equal to married couples as a live-in couple (anagolous to cohabitation or common law marriage) as per a supreme court judgement in August 2022, which offers some semblance of equality in a country where the vast majority of marriages are not registered with government.
While it does not recognise same-sex marriage or civil unions, the vast majority of heterosexual marriages are not registered with government and common law marriage based on traditional customs remains the dominant form of marriage.
India does not possess a unified marriage law, and as such every citizen has the right to choose which law will apply to them based on their community or religion. Although marriage is legislated at the federal level, the existence of multiple marriage laws complicates the issue.
Marriage lies at the intersection of society and the law. Societal traditions are crystallized into the rules relating to marriage by law. The last two decades have witnessed tremendous progress in establishing civil rights for the LGBTQIA+ community.
Indian Courts and Civil rights
In India, marriages are solemnised under personal laws such as the Hindu Marriage Act, 1955, Indian Christian Marriage Act, 1872, Muslim Personal Law (Shariat) Application Act, 1937.
At present, same-sex and queer marriages are not clearly recognised in India. However, we are not deprived of judicial guidance.
Arunkumar and Sreeja vs The Inspector General of Registration and Ors: The Madurai Bench of the Madras High Court employed the interpretation that the term ‘bride’ under the Hindu Marriage Act, 1955 includes transwomen and intersex persons identifying as women.
It expands the scope of a term used in the Hindu Marriage Act, 1955 in a progressive manner and sets the stage for re-imagining the marriage rights of the LGBTQIA+ community.
Shafin Jahan vs Asokan K.M. and Others (Hadiya case): The Supreme Court said that the right to choose and marry a partner was considered to be a constitutionally guaranteed freedom.
SC held that the “intimacies of marriage lie within a core zone of privacy, which is inviolable” and “society has no role to play in determining our choice of partners”.
From the logical interpretation of these judgements, it is apparent that any legal or statutory bar to same-sex and queer marriages must necessarily be held to be unconstitutional and specifically violative of Articles 14, 15 and 21 of the Constitution of India.
In 2021 centre Government opposed same-sex marriage in the Delhi High Court stating that marriage in India can be recognised only if it’s between a biological man and a biological woman capable of producing children.
The Centre government also stated that considerations of “societal morality” are relevant in considering the validity of a law and it is for the Legislature to enforce such societal morality and public acceptance based upon Indian ethos.
Expanding the scope of marriage
The domain of marriages cannot be immune to reform and review.
Reform of the Hindu Marriage Act, 1955 to bring self-respect marriages under its very umbrella, is seen as a strong move towards breaking caste-based practices within the institution of marriage.
Self-respect marriages were legalised in Tamil Nadu (later, in Puducherry) through amendments to the Hindu Marriage Act, 1955.
Self-respect marriages have done away with priests and religious symbols such as fire or saptapadi.
Solemnisation of such marriages requires only an exchange of rings or garlands or tying of the mangalsutra.
Similarly, understanding the needs of the LGBTQIA+ community, the law must expand the institution of marriage to include all gender and sexual identities.
Globally, the recognition of the unequal laws discriminating against the LGBTQIA+ community has acted as a trigger to reform and modernise legal architecture to become more inclusive and equal.
As a result of a verdict by the Constitutional Court of South Africa, the Civil Union Act, 2006 was enacted, enabling the voluntary union of two persons above 18 years of age, by way of marriage.
In Australia, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008was enacted to provide equal entitlements for same-sex couples in matters of, inter alia, social security, employment and taxation.
In England and Wales, the Marriage (Same Sex Couples) Act 2013enabled same-sex couples to marry in civil ceremonies or with religious rites.
In 2015, the Supreme Court of the United States decided that the fundamental right to marry is guaranteed to same-sex couples.It held the denial of marriage rights to same-sex couples to be a grave and continuing harm, serving to disrespect and subordinate gays and lesbians.
As of 2022, 33 countries in the world have legalised same-sex marriage. It is time that India thinks beyond the binary and reviews its existing legal architecture in order to legalise marriages irrespective of gender identity and sexual orientation. The law is however a dynamic concept. Inevitably the nature of marriage would change if there is a change in society.
What is the Path to Legalisation?
After India’s Supreme Court decriminalised homosexuality, many have raised the question of taking a step towards legalising same-sex marriage.
The Special Marriage Act (SMA) is a law that was passed originally to legalise interfaith unions. Now, LGBTQ+ couples are arguing their marriages should be recognised under the SMA.
Although awareness about the LGBTQ+ community has increased in India, there is still stigma and resistance to complete acceptance. So far, 33 countries around the world have recognized same-sex marriage and civil unions.
Along with not recognising same-sex marriages, Indian law does not provide for civil unions. Gay and lesbian couples are also not allowed to have children born with the help of an Indian surrogate mother.
An LGBTQ+ person can apply to Central Adoption Review Authority for adoption only as a single parent.
What is the Status of Marriages in India?
The right to marry is not expressly recognised either as a fundamental or constitutional right under the Indian Constitution.
However, same-sex marriage is also not legalized in India.
Though marriage is regulated through various statutory enactments, its recognition as a fundamental right has only developed through judicial decisions of India’s Supreme Court. Such declaration of law is binding on all courts throughout India under Article 141 of the Constitution.
How can Same-sex Marriage be Recognised Legally?
Legality of same-sex marriages can be achieved using either of the following approaches:
Interpreting the current legislation in order to legalise partnership unions of same genders lawfully.
Defining the LGBTQ+ culture as a separate category and whose practices provide for relationships with the same genders.
To legalise marriages between the same genders, Special Marriage Act, 1954 can be amended.
What can be the Way Forward?
Anti-discrimination Law: The LGTBQ+ community needs an anti-discrimination law that empowers them to build productive lives and relationships irrespective of gender identity or sexual orientation and places the onus to change on state, society and the individuals also.
Elimination of Distinctness: The introduction of same-sex marriage would help reduce these forms of prejudice against LGBTQ+ people because it would eliminate the official “otherness” status of LGBTQ+ people.
Full Scope of Rights: Once members of the LGBTQ+ community “are entitled to the full range of constitutional rights”, it is beyond doubt that the fundamental right to marry a person of one’s own choice has to be conferred on same-sex couples intending to marry.
Creating Awareness and Empowering LGBTQ+ Youth: An open and accessible forum is needed so they feel recognized and comfortable sharing their feelings.
Platforms like Gaysi and Gaylaxy have helped carve out spaces for LGBTQ+ people to interact, share and collaborate.
The Pride Month and Pride Parade Initiative is also a good step in this direction.
What is the Special Marriage Act (SMA), 1954?
Marriages in India can be registered under the respective personal laws Hindu Marriage Act, 1955, Muslim Marriage Act, 1954, or under the Special Marriage Act, 1954.
It is the duty of the Judiciary to ensure that the rights of both the husband and wife are protected.
The Special Marriage Act, 1954 is an Act of the Parliament of India with provision for civil marriage for people of India and all Indian nationals in foreign countries, irrespective of religion or faith followed by either party.
When a person solemnises marriage under this law, then the marriage is not governed by personal laws but by the Special Marriage Act.