same sex marriage India

Will India Ever Legalize Same Sex Marriage?

IPC Section 377 was decriminalized on 6th September 2018 as the Supreme Court of India unanimously ruled in Navtej Singh Johar vs. Union of India case on the grounds that criminalizing consensual sexual acts between two adults in privacy violates article 14, 15, 19, and 20 of the Indian Constitution.

On 24th May 2021, the Centre told Delhi High Court on a petition, seeking recognition of same sex marriage under existing law that, ‘[N]obody is dying because they don’t have a marriage certificate.’ Solicitor General Tushar Mehta, who represented Centre, told the court as the government is currently busy dealing with the pandemic, there are other urgent matters apart from the presented issue that the government needs to deal with first. He added, these days government’s primary focus is on the urgent, imminent issues on hand in terms of urgency.

There are 70 million LGBTQ people in India, but still there is no LGBTQ marriage act for Indian homosexuals or the pride community. Same sex marriage in India is still not legalized and the government of India has been postponing taking any action regarding this. Government of India is still not ready to accept and legalize all the pending petitions relating same sex marriage.

Related read: What it takes being a LGBTQ in India?

Why doesn’t the law permit same sex marriages in India till now?

It has been three years since IPC section 377 was decriminalized, and yet, the law doesn’t permit the same sex marriage in India. Despite the LGBTQ people got recognition after the benchmark judgment made by the apex court of India, LGBTQ community still faces discrimination and is a stigma for the Indian society.

In January 2020, the central government opposed to recognize the LGBTQ legal marriage rights in India. Central Government opposed the seeking recognition of same sex marriage in India under the Hindu Marriage Act and the Special Marriage Act in Delhi High Court stating that a marriage in India can only be recognized if it is between a ‘biological man’ and a ‘biological woman’ capable of producing children.

Supreme Court of India held the members of LGBTQ community “[a]re entitled, as all other citizens, to the full range of [c]onstitutional rights including the liberties protected by the constitution” and are eligible to equal citizenship and ‘equal protection law’. Article 14 of the constitution guarantees equality before law and this applies to all classes of citizens thereby restoring ‘inclusiveness’ of LGBTQ community of India.

Since in the case of Section 377 decriminalization, the court made the judgment on the basis that it is a fundamental right to equality and dignity, LGBTQ people are also inclusive to exercise their right to equality and right to privacy as a citizen of India. However, marriage as an institution has been guided by the statutory laws only till now and is not a part of the fundamental rights.

If marriages would have been a fundamental right, the same-sex couples would have questioned the government why aren’t the LGBTQ society inclusive in this fundamental right to equality.

Why government opposes the same sex marriage?

Since marriage is a societal concept, government argues that societal norms have the higher values in oppose to individual rights. In addition to that, government debates on a few points why they are reluctant to legalize same sex marriages in India. Some of the points are listed below.

  1. There is a scope of ambiguity and anonymity when it comes to domestic violence in same sex marriages in India. If a same sex couple go through domestic violence, then how would they seek legal help and by depicting which role? Who will be represented as the role of wife in the relationship to seek for the legal protection that is primarily made for the wife under the women protection law?
  2. There are various issues regarding child adoption policy in a same sex couple relationship. How will the policies differ in case of LGBTQ couple? Can a gay couple adopt a girl child and provide needed nurturing? Same goes for a lesbian couple. Can they adopt a boy child?
  3. There are issues regarding inheritance rights, i.e., right to property or right to alimony.
  4. In case of divorce, who will be given the child custody?

Related read: Why Is Homosexuality Stigmatized in India?

What is the societal viewpoint regarding same sex marriages in India?

The foremost question society might ask an individual homosexual petitioner ‘is love not enough?’ Since Section 377 has been decriminalized and it is no longer a crime to have sex between two same sex couples, they can live together. They can do everything a couple does in a relationship and it’ll be legal. What is the point of marriage then?

Indian Society rightfully has been celebrating weddings as the main act to demonstrate the importance of marriage since ages. But when it comes to same sex marriage in India, our society tend to be regressive and skeptical of accepting same-sex relationships. Even till today, Indians are unwilling to change archaic laws that restrict equal legal LGTBQ rights in India.

However, to answer the above question by society, ‘No, it’s not enough.’ In Indian constitution, there are various rights and benefits for married couples which helps them lead a dignified life. A spouse can avail several social, political, religious, and economic benefits in every sect of life. For example, in banking, finance, insurance, etc. there are special yojanas made by government of India for married couples. If same sex marriage in India is not legalized, they can live together, but as strangers. They cannot enjoy these benefits where the heterosexual couples are privileged, which again violates the right to equality.

Should same sex marriages in India be legalized?

There is a huge scope of discussion whether same sex marriage in India be legalized. Since a large portion of Indian population have backward influences and are not aware of the LGBTQ community of India, they might not completely support them as of immediately. If government legalized same sex marriage now, it might take a long time for every citizen of India to adapt to the law. Homosexual couples living in backward places might still be facing discrimination, get attacked in the name of sinning or honor killing if the state doesn’t change or make new laws to give them protection legally.

Government cannot keep opposing the same sex marriage petition for a long-time showing causes like tradition and ancient laws. As Indian constitution is amendable accordingly, laws can be changed or added. Despite being a tradition, the practice of Sati was demolished by laws, likewise enacting laws for same sex marriages is also possible. Hopefully and likely, government will legalize same sex marriages in the time to come.