Is same sex marriage legal in India?


August 21, 2023, 12:30 pm | Updated August 26, 2023, 6:14 pm IST
Is same sex marriage legal in India?
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Table of Contents

Introduction

India, a country renowned for its rich cultural heritage and diverse traditions, has long grappled with the question of legalizing same-sex marriage. The discourse surrounding the recognition of LGBTQ+ rights has evolved over the years, and the legal landscape is slowly but surely changing to reflect a more inclusive society. In this article, we delve into the historical context, legal developments, and societal implications of the journey towards legalizing same-sex marriage in India.

 

Some of the Key Events/Legal Developments in Same-sex Marriages in India

Over the years, a number of significant events in India have helped to define the nation's perspective on LGBTQ+ rights. Some of the most significant are listed below:

  • Section 377 Introduction

    Section 377 of the Indian Penal Code, which outlawed acts "against the order of nature" and inadvertently made homosexuality a crime, was introduced by the British colonial authority in 1860.
  • LGBTQ+ groups founding

    The AIDS Bhedbhav Virodhi Andolan (ABVA), the first LGBTQ+ group, was established in Delhi in the 1990s to combat violence and prejudice aimed at the LGBTQ+ population.
  • PIL filed by the Naz Foundation

    In 2001, the Delhi High Court received a public interest litigation (PIL) from the non-governmental Naz Foundation contesting the constitutionality of Section 377.
  • The Delhi High Court's 2009 ruling

    The ruling decriminalized homosexuality and ruled that Section 377 was unconstitutional.
  • 2013 Supreme Court ruling

    In 2013, the Indian Supreme Court reversed the Delhi High Court's decision and reinstated Section 377, making homosexuality a crime once more.
  • 2018 ruling by the Supreme Court of India

    In 2018, a five-judge bench of the Supreme Court of India overturned the earlier ruling and once more decriminalized homosexuality by declaring Section 377 unconstitutional.
  • The Transgender Persons (Protection of Rights) Act

    It was passed in 2019, was designed to safeguard the rights of transgender people and provide them legal status. Although the Act covers transgender rights, same-sex marriage is not specifically addressed in it. It does, however, show how the understanding of gender identity is changing and the necessity of inclusive policy.

 

Indian Law Regarding Same-Sex Marriage

In India, same-sex marriage is still not recognized despite legislative triumphs, depriving LGBTQ+ couples of social and legal benefits. From the prohibition of homosexuality to the decriminalization and eventual legal recognition of LGBTQ+ people, these events have had a profound impact on how India views LGBTQ+ rights. To secure equal rights and protection for the LGBTQ+ population in India, however, lobbying and activity must continue as hurdles and discrimination still exist.

 

Prominent Case Law: The Navtej Singh Johar Case

India had not yet legalized same-sex marriage nationwide. However, there have been several encouraging developments that suggest the possibility of legal recognition in the future.

The Supreme Court's decision in the Navtej Singh Johar case to strike down Section 377 was a turning point, as it acknowledged the importance of individual autonomy and the right to privacy. The verdict also emphasized that the constitutional rights of LGBTQ+ individuals cannot be denied. This ruling laid the foundation for future legal discussions around same-sex marriage.

 

Initiatives made by LGBTQ activists to Legalize Same-sex Marriages

In India, LGBTQ+ organizations and activists have been working nonstop to advocate for increased legal protection and acknowledgement of their rights. The following are some of the initiatives:

  • Legal Obstacles

    For years, LGBTQ+ organizations and activists have fought against Section 377 of the Indian Penal Code, which criminalized homosexuality. The prohibition was finally overturned in 2018, decriminalizing homosexuality in India.
  • Awareness and Advocacy

    Several LGBTQ+ organizations are striving to raise awareness of the issue and advocate for the community's increased rights and protections. To bring attention to problems facing the neighborhood and to advance equality and acceptance, they organize marches, protests, and campaigns.
  • Policy and Legal Reforms

    Organizations like the Humsafar Trust and the Naz Foundation are striving to preserve the rights of the LGBTQ+ community through policy and legal reforms. They are arguing in favor of anti-discrimination laws, welcoming regulations, and marriage and other same-sex relationships being legally recognized.
  • Counseling and Assistance

    The LGBTQ+ community can get counseling and assistance from a number of organizations. These services assist people in coping with problems like mental health issues, bullying, and prejudice.
  • Building a Sense of Community

    Organizations that serve LGBTQ+ people are also working to create a sense of community and support within the community. To make the community feel safe and welcome, they plan events, social gatherings, and support groups.

 

Initiative by Government for LGBTQ Community and Same- sex Marriage

The judiciary and the Indian government have had a big influence on how the country views same-sex marriage and LGBTQ+ rights. People are responding to the calls and efforts of the activists in a supportive and sympathetic manner. Some of the major developments are as follows:

  • Sexual orientation is no longer a crime

    The Indian Supreme Court invalidated Section 377 of the Indian Penal Code, which made homosexuality a crime, in September 2018. As the possibility of criminal prosecution for consensual same-sex partnerships was removed, this was a key turning point for LGBTQ+ rights in India.
  • Same-Sex Marriage

    In India, same-sex unions are not yet permitted. However, the Delhi High Court declared in 2017 that denying same-sex couples the ability to marry is a breach of their rights and that the right to marriage is a fundamental human right. The Supreme Court eventually overruled this decision, ruling that the legislature should have the last say on the matter of same-sex marriage.
  • Legal Recognition of Transgender Rights

    In 2014, the Supreme Court declared transgender people to be a third gender and ruled that their rights and protections must be equal. The Transgender Persons (Protection of Rights) Act, which gives transgender people legal recognition and safeguards their rights, was introduced by the government in 2019.
  • Anti-Discrimination Laws

    To protect LGBTQ+ people from discrimination in employment, housing, and public accommodations, the Indian government has not yet implemented thorough anti-discrimination laws. However, certain states have passed anti-discrimination legislation that includes safeguards for LGBTQ+ people, including Tamil Nadu and Kerala.

 

Conclusion

While same-sex marriage is not yet legal in India, the country has witnessed significant progress in recognizing LGBTQ+ rights, including the decriminalization of homosexuality and the acknowledgment of the importance of individual autonomy. As society evolves and attitudes change, it is possible that legal recognition of same-sex marriage will follow. The journey towards a more inclusive India is ongoing fueled by the tireless efforts of activists, legal experts, and individuals who believe in the power of equality and love. If you want to know more about same-sex marriages in India, you must contact divorce/ family lawyers in India and specifically in your area. In simple words if you are staying in Kolkata, you should contact a family/ divorce lawyer in Kolkata.

 

FAQs

  1. Can a man marry a man in India?

    No, in India a man cannot marry a man as Indian law does not recognize same-sex marriages. However, same-sex couples can live as live-in partners.
  1. What is the decision on same-sex marriage in India?

    Although, in 2018, the Supreme Court of India struck down Section 377 of the Indian Penal Code, which criminalized consensual same-sex relationships, it does not legalize same-sex marriages in India.
  1. Can same-sex couples adopt in India?

    It claimed that adoption by same-sex couples is not recognized by Indian law, including the Hindu Adoption and Maintenance Act and international treaties.
  1. Is the Supreme Court hearing about same-sex?

    The Supreme Court resumed the hearing on April 27 since the arguments were still undecided over the legal recognition of same-sex marriage in India.
Written By:
Vidhikarya

Vidhikarya


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