This article is written by Shraileen Kaur, student of ICFAI University, Dehradun, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. In this article, the author discusses in detail the legality of gay marriages in India.

It has been published by Rachit Garg.

Introduction

When something pertains to civil liberties and fundamental freedom, numerous industrialized nations have accepted same-sex marital relationships. Undoubtedly, the LGBTQ+ community has constantly been subjected to sexual identity-based prejudice. They have struggled for judicial acknowledgement of human basic freedoms for many years. The constitutional safeguarding of homosexual marriages on an equal basis with heterosexual marriages is now becoming a need. Marriages, since time immemorial, are seen as a basic human right. Nevertheless, there seems to be no legislation in place to protect same-sex marriages and their rights. 

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In political, cultural, and societal considerations, marriage is regarded as one of the most crucial aspects of an individual’s existence. It is a legitimate organisation that recognizes the relationship between different persons under numerous constitutional provisions. It is of tremendous national relevance since it has significant implications for rights and responsibilities such as inheritance, succession, and other associated rights. These rights are the result of a matrimonial relationship. Marriage is not just a civic right in the present era, but it has also garnered influence on the world stage. The nation must grant marriage rights. The freedom to marry is currently acknowledged as a fundamental right in India, giving a person the ability to pick their preferred partner.

The article examines the legality and scope of same-sex marriages in India. It also includes the stance of several governments concerning the topic of LGBTQ+ rights. 

History of the legality of gay marriages in India

Homosexual behaviour has a longstanding history on the Indian continent, as evidenced by various writings dating back to antiquated periods. Sexual behaviours among women are depicted as insights into a female-oriented cosmos of pleasure and productivity in historical writings such as the Rig Veda, monuments, as well as remnants dating back to around 1500 BC. Photographs of gay practices in the Hindu scriptures, as well as photographs of adolescent boys possessed by Muslim nizams and Hindu nobles, are examples of irrefutable evidence of homosexuals throughout the Muslim Middle Ages, as well as confirmation of homosexual acts amongst Tantric ritualist couples.

These interactions became less relevant with the emergence of Vedic Mahayana Buddhism and then British imperialism. According to Giti, one of the 27 matravratas in Sanskrit, the Aryan colonisation of 1500 B.C. attempted to subjugate homosexuality as the patriarchal society gained power. For same-sex conduct, the Manusmriti mentions repercussions such as caste forfeiture, substantial financial penalties, and whipping. Before the British colonisation grew more institutional and clear in its repression of gay images and gender expression, in particular, all social determinants lived in harmony because of differences in seeming disposition and egalitarianism. Explicitly sexual photos are considered ‘pornographic but also evil’ by homophobic attitudes and standards.

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The western perspective on sexual orientation has significantly impacted childbearing expectations following European expansion. Such ancient concepts and practices have already been sequentially transferred into the explanation of imperialist sexual preferences, and they can be detected through reactions to almost any sort of ‘unnatural’ intercourse. 

Rather than accepting organic displays of tendency as part of Indian society, India adopted the modern view of ‘psychological and ethical’ sexual identity as ‘abnormal.’ The concept of homosexuality has changed dramatically during the past century. Following 1974, homosexual acts were no longer regarded as abnormal conduct and were thus omitted from psychological disease categories. Various nations, notably India, have decriminalized homosexuality. Many countries around the globe have introduced laws and taken steps to protect LGBTQ+ community facing discrimination without due process. South Africa became the first state in the world to acknowledge the human rights of homosexuals as well as gays back in 1994.

Botswana, Trinida and Tobago, Germany, Luxembourg, the Netherlands, Belgium, Norway, Finland, Spain, and New Zealand are also covered by specific legislation. In 1996, the United States Supreme Court held that no jurisdiction may pass legislation discriminating against gays based on hate. After the decriminalisation of Section 377 of the Indian Penal Code, 1860 in Navtej Singh Johar v. Union of India, Indian citizens accepted homosexuality in 2018.

All about gay marriages in India

Since the freedom to marry is essential for maintaining the rights of all people and living a worthwhile existence, the court system has viewed marriage as a fundamental human right, illustrated under Article 21 of the Indian Constitution. Even though the freedom to marry, depending on an individual’s wishes, has been proclaimed as a basic right, this right does not extend to same-sex marriages. Even the basic rights of the LGBTQ+ community are being threatened. Lawmakers are doing nothing to protect them from losing their constitutional right to marry. Most advanced nations have accepted same-sex marriages in their statutes to compensate for the fact that heterosexual couples receive the same sociopolitical support. Potential benefits offered to heterosexual spouses, such as maintenance and succession, are forbidden to homosexual couples.

Sexual identity is included in the term “sex.” Consequently, harassment based on sexual inclination is illegal under both civil and criminal legislation. Existing family legislation solely embraces heterosexual unions, effectively depriving gay couples of sociopolitical and legal recognition and also of  the privileges that these laws place on people who are married. Prejudice on the ground of sex is unquestionably a violation of the fundamental rights accorded by Article 15.

Sociological aspect of homosexuality and gay marriages regarding Indian society

In India, currently, no specific socially conscious advances in social and political acceptance have occurred, and gays continue to be the sufferers of abuse in various forms sponsored by the government and the community. Homosexuals in India have grown from a small community of a few hundred to 10 crores and counting. The group is developing its style and events. Both physical and digital, individuals are making their path from metropolitan areas to semi-urban cultures. This figure is steadily rising as even more people join. People like this are stepping out of the shadows and in Delhi, Mumbai, and Kolkata, to a lesser extent, individuals from outlying areas in India flock to Bengaluru and other metropolitan cities, which are the epicentres of the Indian LGBTQIA+ movement.

Several Indian gays are chatting in online forums in real time, searching for bosom buddies, finding love, engaging in sexual activity on the internet, and traveling across regions to just be with one another in the present world. This demonstrates that homosexual partnerships are not uncommon in India; nonetheless, partnerships are more common in the nation’s major regions, wherein individuals are much more upfront about their sexual orientation. 

Kolkata, Bengaluru, Mysore, Nagpur, Hyderabad, Bihar, Varanasi, Kottayam, Trichi, and Gwalior, for example, provided a variety of options for homosexuals, lesbians, and transgender people, including counseling services, media publications, healthcare systems, community areas, and drop-in facilities. The homosexual communities of Kolkata, Mumbai, and Bengaluru have all recently staged gay pride marches. All of the preceding examples demonstrate that India’s homosexual community is noticeable and increasingly loud in its demands.

The legality of homosexuality in India 

The British colonialist administration adopted Section 377 of the Indian Penal Code, 1860 which made all forms of consensual yet non-begetting sex illegal. The tyrannical rule not only targeted gays, but also all other sorts of modern sexual activity, even within heterosexual relationships. As a result, this rule was nothing more than a holdover from Victorian orthodoxy that had no validity in a representative democratic society like India.

Unfortunately, it ended up taking over 70 years and nearly two decades of judicial battles to overturn this antiquated statute, which had developed as a tool for harassing and exploiting anyone who did not fit into the standard dichotomy of gender and sexual orientation. As of now, homosexuality is legal in India, and Section 377 of the Indian Penal Code, 1860 has been abolished to a certain extent. The section still includes activities related to sex with individuals below 18 years of age, bestiality, and sexual practices that are non-consensual.

The never-ending debate on gay marriage

Marriage is a critical predictor of well-being for both individuals and society. In numerous countries, gay couples have been barred from formally enforceable marriage. The recent debate over same-sex marriage legalization has raised concerns among heterosexual marriage supporters and legislators that permitting homosexual couples will result in fewer homosexual marriages.

Arguments in favor of legalising gay marriages in India

Equality is just about compassion and liberation and refusing marriages to those of the fellow citizens, who deserve. It means curtailing their rights, handling them unfairly, psychologically and socially penalising them, as well as endangering their lives. It is a retaliatory action that requires a considerable justification to not enable someone to marry; belief systems should only impose tight regulatory limitations if they are satisfied that certain injunctions are required to avert individual and interpersonal harm.

All these made enough circumstances for the finest legal minds to discuss the matter, such as when the judicial officers of the Supreme Court of the United States told certain attorneys who favored gay marriages how none of them could make a coherent justification as to what harm it may cause to the general populace.

Yes, the homosexual union affects everyone. The idea that gay marriage in whatever form is harmful is false; nobody’s union is injured by the actions of others, and the authenticity of a person’s right to marry is not based on the disapproval of others. The nations that approved such legislation have still not been harmed by the environment since 2001 when the Netherlands did so for the initial time.

There are presently 25 nations where same-sex marriages are allowed, and all of them, including some of the developed nations, have addressed a certain sociological issue. In every nation where same-sex marriages are legal, there has been no loss of heritage or a decrease in the credibility of traditional family values.

Arguments against gay marriages 

Many males, especially in India, are opposed to this because it is rude, unrefined, and unethical. Former Prime Minister Manmohan Singh was asked how he thought about the Canadian restriction against gay unions. The individuals’ opposition was built on religious convictions and procedural fairness.

Some people do not think gay marriages are acceptable since they cannot procreate. This is religiously incorrect; God created Adam and Eve since homosexual marriage was legal. If gay marriage was authorized, why falsify Jesus’s rule? If nature intended gays to cohabit, one sex instead of distinct genders should also have emerged.

Marriage and societal bonding are central to the culture. The norm is banned in this case. Humanity was built to remain unchanged. This goes against the land’s regulations, which have been in place for countless generations and are based on the New Testament.

Legislations that deal with homosexuality

  1. Unnatural offences are covered by Section 377 of the Indian Penal Code, which includes homosexual activity within its scope. This law was provided by the British during the colonialist regime from the British Penal Code of the nineteenth century in India.  According to Section 377, “whoever willfully engages in carnal intercourse against the order of nature with any man, woman, or animal shall be punished by life imprisonment, or by imprisonment of either sort for a period of up to 10 years, and shall also be liable to a fine.”
  2. Section 292 of the Indian Penal Code relates to obscenity, with plenty of room to encompass homosexuality under its ambit. 
  3. Section 294 of the Indian Penal Code, which punishes “obscene behavior in public,” is also applicable and used to discriminate against gay men. It is crucial to highlight that the Protection of Children from Sexual Offences Act, 2012 removed the penalty for homosexual behavior involving consensual sex in England, however in India, consent is largely irrelevant for creating an offense as described under this provision.
  4. The Transgender Persons (Protection of Rights) Bill, 2019, was passed to protect transgender people’s rights by preventing workplace harassment, education, medical services, and accessibility to government and private businesses. However, in the name of community upliftment, the legislation exposes individuals to institutionalised tyranny and dehumanises their bodies and identities.

The LGBTQIA+ community in India has passionately opposed the law, claiming that it infringes on their basic rights and does not conform with the NALSA ruling.

Homosexual Marriage under Personal Laws 

Marriages and intimate unions have a high historical and sociological prominence in India. Spiritual roles are at the heart of what are known as sacraments. It defines numerous aspects of lesbian committed relationships, including the conduct of church ceremonies and, in some cases, the ceremonial exchanging of shrines.

In 1988, for instance, a Hindu service wedded two female police officers. Their marriage was approved by their families and cultures, although their nuptials could not be recognized and their employment was cancelled. It is noteworthy to note that there are several homosexual unions between residents and non-English-speaking individuals who have not been affiliated with the transgender movement.

Hindu marriage laws, which include Hindus, Sikhs, Jain, and people following Buddhism, assert that a marital ceremony would take place in natural settings, in conjunction with conception, between two individuals in India.

Under the Christian definition of ‘marriage’, a woman must be 20 years old, while a man must be 18. There is no explicit idea of ‘marriage’ because the legality of Muslim unions is irrelevant; yet, the requirements of the agreement with the end goal of conception are commonly accepted. All Indian personal laws favour patriarchy.

Homosexual Marriage under the Special Marriage Act 

Another approach to preventing raising ethical objections is to attempt to amend the Special Marriage Act, 1954 to allow gay marriages. The Special Marriage Act is a non-religious statute that makes it simple to marry individuals of diverse faiths or those who do not want their laws to be enforced. Instead of a religious ritual, the registration officer certifies the relationship. As it stands, the Special Marriage Act appears to only apply to heterosexual couples, as it states that men must be 21 years old and women must be 18 years old.

Accepting same-sex marriages is not difficult under the Special Marriage Act. Only Section 4(c) must be altered to allow an individual to marry at the age of 21 if he is a man and 18 if he is a woman, and to add a clear provision that gay marriage is legal. It is just necessary to change Section 4(c). Even if personal law provisions were altered to recognize same-sex unions, the Special Marriage Act should be amended in each instance to grant equivalent sanction to couplings among people of distinct denominations.

Even though the proposed adjustments are simple to articulate and therefore do not appear to restrict religious liberty, they are certain to elicit serious resistance. The Special Marriage Act legislation would have been comparable to those that have been put in place in numerous nations to recognize same-sex nuptials. From the Netherlands in 2000 to the United Kingdom and the United States in 2015, 25 countries have so far adopted these regulations.

Current standing of the government in respect of legalisation of gay marriage in India

Tushar Mehta, the solicitor-general of the Delhi High Court, claimed that same-sex marriages violate “our laws, judicial system, societal norms, and morals.” It is disheartening that a youthful democracy has become so constrictive because of principles and culture that it took roughly 24 years to decriminalize homosexual behavior and enable individuals to openly love one another, and it is appeared so rigorous due to various moral standards and communities that a group of homosexual people are not allowed to get married to someone of their own choice.

As a result, it can be stated that although the judiciary is adopting various initiatives to protect and safeguard the LGBTQIA+ community’s rights, the government is undermining those same rights. It is need of the hour for the administration to recognize and enact legislation in conformity with the groundbreaking decision, or the gay community will continue to endure obstacles in their fight for the very same rights as heterosexuals.

International perspective with respect to gay marriage

As of now, there are a total of 31 nations that have allowed same-sex marriages. The countries which have allowed homosexual marriage are Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States of America, and Uruguay.

Legalisation procedures

Federal legislation has authorized same-sex marital relationships in 22 nations. Only after national votes did Australia, Ireland, and Switzerland allow same-sex marriage via legislation. Austria, Brazil, Colombia, Costa Rica, Ecuador, Mexico, South Africa, Taiwan, and the United States of America are among the nations that have allowed same-sex marital relationships by judicial pronouncements. Following the court orders, two nations, South Africa and Taiwan approved a bill recognizing the same-sex civil union.

Nations that have made marital equality lawful

  1. Chile: Chile’s president has approved a matrimonial equal rights bill into law. Since 2015, same-gender civil partnerships have been legalised.
  2. Switzerland: The Swiss Senate voted to pass laws allowing same-gender individuals to marry. A national referendum held in September 2021 found that 64 percent of people approve of marital equality.

Other than these 2 nations, there are several other countries wherein marriage equality has been approved. Some of these nations are – Ecuador, Taiwan, Costa Rica, as well as Austria. In numerous regions, homosexual partners do not have the same benefits and protections as heterosexual spouses, including the privilege to inherit. Same-sex unions are subjected to supplementary prohibitions in several jurisdictions. In Taiwan, for instance, same-sex civil partnership is only permitted between Taiwanese nationals and citizens of countries that acknowledge same-sex union.

The global trend of same-sex marriages 

Nations around the globe have varying attitudes toward homosexuals and same-sex unions. Many governments are welcoming of these partnerships and have legalized same-sex weddings, while others are strongly opposed to gay marriage and sometimes even deem it a felony. When it comes to dealing with the issue, government servants and LGBTQIA+ organisations take different perspectives.

They openly welcome the behaviour on occasions, while in other situations, they advocate the legal recognition of these partnerships on the grounds of combating prejudice towards individuals of the very same sexes. In other cases, they chose to give logically valid gay relationships psychological equivalency and offspring the same adoption rights. As a consequence, a growing number of jurisdictions have legalized gay behavior in a variety of countries. Despite the various statements made by organizations and individuals that such prohibitions are obsolete and should be abolished, several countries continue to prohibit homosexual acts through legislation. Nonetheless, the concept of homosexual behavior has changed dramatically during the previous century. Since 1974, homosexual acts have no longer been considered aberrant conduct, and it is no longer classified as a psychological disorder. Several countries have since legalized homosexual activity. Several nations all over the globe have passed anti-discrimination or equal opportunity laws to protect LGBTQ+ rights.

Even though homosexual activity is a punishable offence in over 70 countries, it is indeed punishable by death in several nations such as Afghanistan, Nigeria, Somalia, Iran, Brunei, Pakistan, Saudi Arabia, Qatar, Sudan, the United Arab Emirates, and Yemen, as well as life imprisonment in Burma, Bhutan, Georgia, Indonesia, and the Maldives. The legal standing of homosexuals varies substantially across countries. In England, for instance, homosexual sodomy nuptials amongst consenting adults are lawful till they reach the age of 21 and therefore are held confidentially.

Are gay marriages legal in India

When it comes to gay marriages in India, the first and foremost question that arises is, whether gay marriages will ever be legal in India or not? 

In a culture and tradition conformist nation like India, marriages are seen as a highly prominent socio-cultural and legal institution. Marriage includes matrimonial rights as well as social obligations in our value system. Because marriage has become a crucial component of an individual’s life, the ‘Right to Marry,’ which is recognized under Article 21 of the ‘Right to Life and personal liberty,’ has allowed all of us the opportunity to choose our future spouse. The Apex Court ruled in Shakti Vahini v. Union of India (2018) that an individual has the constitutional freedom to marry whoever he chooses. Even in the Hindu Marriage Act of 1955, there is no requirement that the marriage is solely between a heterosexual couple.

A survey conducted by OkCupid, a dating website, discovered that approximately 69% of individuals support legalizing same-sex weddings.

The concern is, if legalizing same-sex marital relationships does not violate any personal law and the general public wants it, what would be the loss in incorporating two individuals of the same gender to marry? Are we still adhering to the conservative society’s standards? Why do the people from the LGBTQIA+ community have to still fight for their basic rights even though our legal and social system is changing and progressing? 

In September 2020, four LGBTQ individuals filed a Public Interest Litigation under Article 32 in the Delhi High Court, claiming that they must be permitted to marry under the Hindu Marriage Act of 1955. The petitioners claimed that they are being deceived of their fundamental privileges as a result of the constraints. 

Nikesh Pushkaran filed a parallel suit in the Kerala High Court, challenging the Special Marriage Act and demanding the same privileges as a heterosexual couple. The Madras High Court has ruled that under the Hindu Marriage Act of 1955, a transsexual individual might be termed a bride.

The Court referred to passages from the Hindu mythology holy books such as Ramayana and the Mahabharata and ordered that the petitioners’ marriage be recognized. Despite this, homosexual couples are denied the fundamental human rights of marriage, parenthood, and succession. The primary problem with legalizing gay marriages is that many begin to oppose it based on religious, cultural, and societal factors. Leaving aside religious and ideological considerations, the judicial system should allow homosexual couples to register their marriages under the Special Marriage Act of 1954.

Conclusion

Although Indians are aware of homosexual occurrences all around the globe and their legal recognition, many have moral qualms concerning homosexual relationships. Even nowadays, the plurality of Indians remains against homosexual weddings for themselves. However, the desire for recognizing same-sex nuptial bonds is severe as well as strenuous, but it is hidden because it is not gaining societal support. It appears that social tolerance of homosexual relationships in India is still a long way to go.

As constitutional protection of same-sex marriage unions would imply not only acceptance of homosexual behavior, thus seeking to make it a simulation in today’s societal structure, but it could also arcane the fundamental ideals of household, cohabitation, childbearing, and species coherency, all of which are part of humankind’s widely accepted intestate succession. However, Indians must understand that sexual inclination is a physiological and organic phenomenon, not an illness. Certainly, the quest for societal and constitutional acknowledgment of homosexuality has yet to be recognized, but the homosexual population must not be abused or humiliated in any scenario.

As a result, considering the prevailing Indian sociocultural framework and the escalating struggle for the sanctity of marriage, the desire for recognizing homosexual marital relationships is mostly dismissed. However, in the not-too-distant future, the current societal preconception of the marital relationship as a heterosexual institution involved with childbearing and childraising may embrace homosexual marriages, in which affection among the spouses takes precedence over sexual identity. The inability to concede how the community and the household are evolving will then cause more damage than benefit. In any event, the call for legalizing homosexual marriages has sparked a new battle in marriage, community, and legislation that cannot be ignored.

However, granting societal and statutory acceptance in this conservative culture is more difficult than in developed states, but ignoring this rising tension in the structure of life and civil partnership will be narrow-minded and can have catastrophic consequences if not addressed delicately.

Lastly, if regulations are designed to symbolise culturally acceptable terms and conditions, then a shift in thinking is critically needed.

Frequently Asked Questions 

Are homosexual couples better parents?

The overwhelming proportion of scholarly researchers who compared lesbian and gay parents to heterosexual parents have repeatedly observed that same-sex partners are just as competent and skilled caregivers as other partners and that their offspring are as emotionally sound and well adapted.

How are gay and lesbian persons affected by legislation that restricts marriage to heterosexual people?

Having been deprived of the opportunity to marry adds to the prejudice attached to having a minority gender orientation, which can cause severe psychological issues and other health ailments.

Is there a difference between same-sex and heterosexual marriages?

According to researchers, the cognitive and interpersonal features of relationships among same-sex partners are very similar to those of heterosexual unions.

What causes individuals to be heterosexual, lesbian, gay, bisexual, or any other sexual preference?

No one knows for certain. The large bulk of trustworthy professional specialists, on the other hand, feel that sexual preference, like handedness, is a component of our biological experience.

What is the distinction between sexual identity, sexual expression, and sexual orientation?

Everyone has a sexual orientation, gender identity, and expression. One defines our sexual desires; another represents our mental sensation or experience of being masculine, feminine, a mix of both, or none; and yet another describes how we portray ourselves to others.

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