Author- Srishte, Institute of Law and Research

This Article analyses India’s legal denial of same-sex marriage, tracing historical roots, constitutional mandates, and judicial developments, and advocates for inclusive marriage equality grounded in dignity and constitutional morality.

In a country as diverse and vibrant as India, the debate surrounding same sex marriage has sparked intense discussion, challenged traditional norms and pushed the boundaries of love and acceptance. As the world witnesses a growing trend towards recognizing and celebrating diverse relationships, India stands at a crossroads, grappling with the question: Should same -marriage be legally recognized?

“Marriage is not merely a union of two individuals but a recognition of equal dignity and love”, stated by Justice D.Y. Chandrachud in Navtej Singh Johar vs. UOI marked a watershed moment, the path towards full marriage equality remains legally uncharted and socially contested. However, despite the decriminalisation of homosexuality in India, same -sex marriage remains outside the scope of legal recognition. The debate revolves not just around personal liberty, but also around constitutional morality, cultural ethos, and the evolving interpretation of human rights. This Article examines the legal, historical, constitutional, and comparative dimensions of same-sex marriage in India, while suggesting a reformative way forward.

Contrary to the colonial portrayal of homosexuality as “unnatural”, Indian culture historically exhibited considerable sexual fluidity. Texts like Kamasutra, temple art in Khajuraho and Konark, and stories in Puranas depict non-heteronormative relationships without stigma.

1. Ancient

Recognition of same sex love is not alien to Indian culture. Ancient texts and sculptures reflect diverse sexual orientation:

• Shikhandi in the Mahabharata and Arjuna’s transformation as Brihannala during exile reflects gender non-conformity.

• Kama Sutra by Vatsyayana discusses homosexual relationships explicitly.

• Mythological narratives, such as Lord Ayyappa’s birth from the union of two male deities (Shiva and Vishnu as Mohini).

• It provides a wide breadth of literacy and artistic sources showing LGBTQ life in the temple of Khajuraho.

• Manu smriti provides punishment to homosexual men and women.

This indicates that pre-colonial Indian society did not criminalise or ostracise same-sex relationships. The marginalisation began during the British colonial era.

2. Medieval

The Fatwa-e-Alamgiri of the Mughal Empire mandated a common set punishment for homosexual. Muslim Urdu poetry of the era sometimes expressed homoerotic viewpoint in Persian Literature and court poetry (e.g. Bacha Bazi and Gulam Bardi culture). Example: Babur, founder of the Mughal empire in his memoirs Baburnama, openly wrote about his passionate feelings for a boy named Baburi. 

3. British Raj

 The British imposed section 377 IPC via the Buggery Act of 1533, criminalising “carnal intercourse against the order of nature”. Victorian morality replaced the Indian pluralistic ethos with rigid sexual binaries. Criminalise homosexuality under section 377 of Indian Penal Code, 1860 “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment for a term which may extend to ten years”.

4. Real incident of harassment happened on their sexuality

Here are recent harassment cases and incidents in India rooted in sexuality for gender identity, showcasing the diverse forms of abuse faced by LGBTQ + individuals and others:

Gopi Shankar Madhurai: A well-known queer rights advocate, has faced death threats, verbal abuse, and a physical attack.

The Calcutta HC acknowledged that sexual harassment protections should extend beyond heterosexual relationships, allowing same-sex victims to file under the POSH Act.

Criminal law Loophole: No explicit protection for LGBTQ + Survivors of sexual violence, law leaves queer survivors vulnerable, no gender-neutral sexual violence definition.

LGBTQ stands for:

L= Lesbian (these are women who attracted to women)

G= Gay (people who like people of the same sex often used to refer to men who are attracted to men. It is valid for all genders).

B= Bisexual (people who may experience attraction to people of multiple gender).

T= Transgender (they identify with sex opposite to the one they were born with. They have no relation to sexual preference).

Q= Queer (identify people who sexually go beyond the heteronormative and what is accepted by society).

I= Intersex (these are people who were born with gentle organs of both sexes male and female. It is a genetic condition).

A= Asexual (they are uncomfortable with sexual contact with anyone).  

+ = and more, some published reports claim that there are 72 combinations present.

In 2001, Naz foundation (India) NGO, filed a lawsuit in Delhi High Court, seeking the legalization of homosexual intercourse between consenting adults. PIL to challenge the IPC,1860 section 377 in Delhi High Court but PIL was refused because petitioners had no “locus standi”.

In 2006, Human Right Watch published a report on section 377 of IPC,1860 was to harass HIV/AIDS prevention activities, as well as sex workers, men who have sex with men, and other LGBTQ groups.

In 2009, Naz foundation vs. Government of NCT Delhi that section 377 and other legal prohibitions against same sex conducted and directly violated fundamental rights. 

In 2012, a bunch of appeals came against this judgement but the Supreme Court observed that homosexuality should be seen in the context of changing society. 

In 2014, the Supreme Court in Suresh Kumar Kaushal vs. Naz foundation overturned the decision of Naz foundation vs. NCT Delhi.

In 2014, NALSA vs. UOI in this case the court observed that rights of transgender persons under Article 14, 15, 19 and 21 were violated so the court upheld that rights to transgender persons to decide their rights. It directs the government to grant legal recognition to transgender identity, such as male, female and third gender.

In 2017, K.S. Puttuswamy vs. UOI in this case court observed that right to privacy is a fundamental right under Article 21 of the Indian Constitution and sexual orientation is an essential attribution.

In 2018, Shafin Jahan vs. UOI in this case the court observed that the right to choose one’s partner as a fundamental right. Similarly, cited in Shakti Vahini vs. UOI.

In 2018, Navtej Singh Johar vs. UOI was a landmark judgement on the struck down of IPC, 1860 section 377 to the extent that it criminalized homosexuality. Emphasised constitutional morality over social morality. Recognized that sexual orientation is intrinsic to dignity and liberty (Article 21). However, the ruling decriminalized homosexuality; it did not confer positive legal recognition of same-sex relationships or marriage. 

In 2023, Supriya Chakraborty & Anr. Vs. UOI it is a recent landmark case in this case court observed that seeking legal recognition of same-sex marriage under SMA, 1954, the Constitutional bench refused to read same-sex marriage into SMA, and held that marriage is not a fundamental right in the context of Indian statutes. The court is also observed that discrimination against queer couples existed but stressed that making law on same-sex marriage is a matter of parliament, not the courts. D.Y Chandrachud highlights a very important term “civil union” which means legal status that grants same-sex couples certain rights and responsibility that are normally given to married couples. A civil union resembles a marriage and brings with it employment, inheritance, property rights, and parental rights, there are some differences between the two. Civil union is a marriage-like legal sanction provided to two individuals generally of the same sex, Where Marriage is a religious institution recognized by law that allows two individuals male and female, to marry. 

Here also two perceptions, one who in favour and the another in against:

In Favour (Petitioner)

• 18 same-sex couples seek recognition of their relationship with legal and social status “marriage”.

• Petitioner sought recognition under the Special Marriage Act,1954 and The Foreign Marriage Act, 1969.

• Senior Advocate Mukual Rohatgi argues that no-heterosexual couples' fundamental rights were violated under Article 14 (Equality) denial of marriage is arbitrary and discriminatory. Article 15 discrimination based on sex and sexual orientation. Article 19(1) (c) right to express love, identity and association. Article 21 right to life includes the right to form intimate relationships and found a family. He claimed that the same-sex marriage is recognized in 34 foreign countries.

• In 2015, Obergefell vs. Hodges in United States, legalised same-sex marriage under due process and equal protection.

• Minister of Home Affairs vs. Fourie, South Africa, 2005, denial of same-sex marriage is unconstitutional.

• Goodridge vs. Dept of Public Health, Massachusetts, 2003, Marriage inequality violates equal protection.

• South Africa, Canada, Germany, Brazil, Taiwan, and 30+ countries have recognized same-sex marriage or civil unions.

• Yogyakarta Principle 2007, Establish the right to found a family and marry irrespective of sexual orientation or gender identity. India is a Signatory to the principles in spirit.

• In Arun Kumar vs. Inspector General of Registration 2019 Madras HC, court observed that recognised a transwoman as a “bride” under HMA, hinting at gender flexibility.

India risks falling behind in the global human rights discourse unless urgent legislative and judicial steps are taken.

In Against (Government)

• Marriage is governed by many personal laws and various laws need to be harmonised. Present laws are not gender neutral. Intrinsic assumption of man and woman. There were 160 laws to be impacted and sweeping legislative reforms required argued by Tushar Mehta.

• Absence of UCC, a key deterrent, right of religious, minorities, indigenous people could be affected, complex issues requiring intervention by Parliament. As we know that reforms can’t be piecemeal.

• Various laws around Matrimony like anti-dowry, DVA etc. laws framed with presumption of man and woman. Even special laws drafted for protection of women. Presently laws solely drafted for heterosexual marriages.

• Recognition of marriage linked to adoption, inheritance, child welfare needs to be deliberated upon. Can children be raised by same-sex couples?

• If same -sex marriage is recognized, what will be the process of divorce, separation, custody of child? will also be involved.

Jurist’s View

• Justice Chandrachud: “Marriage is not just a matter of privacy but also dignity and social recognition.

• Justice Indu Malhotra: “History owes an apology to the LGBTQIA + Community”.

Public Attitudes

• Urban youth, academia, media, and civil society are increasingly supportive.

• Apply living Constitution doctrine to expand Article 21 and 14 protections.

• Opposition mostly stems from conservative religious and political segments.

Same-sex marriage will be recognised because Constitution of India empowers all the individuals with equality under Article 14. The State cannot discriminate against citizens on the basis of sex, religion, caste, birth or class under Article 15. Everyone has the freedom of speech and expression under Article 19, and most importantly, everyone has a fundamental right to live with dignity under Article 21.

As we all know, India is moving towards Modernisation, but the true definition of Modernisation is a progressive mindset. We need to change our thoughts and provide a safe and healthy environment for Indian citizens so they feel secure and become a part of society- because LGBTQ community has no choice in their identity; it’s a genetic and hormonal process that may happen to anyone. So, when someone comes out, no one can change that- but what we can do is support them and deal with it in a proper and empathetic way. If we are able to help them in a positive manner, we have no right to interfere in their personal lives. Real incidents of harassment occurred based on their sexuality, leading to depression and in some cases, suicide like Aniket Patil and Anjana Hareesh they commit suicide.

There are many questions raised about whether same-sex couples are capable of raising a child. However, it is also true that no report claims they are unable to do so, because every individual is different- not just physically but mentally. If two same-sex individuals enter into a relationship, it is quite possible that both persons may have different emotional traits. One person may be more muscular, while the other may possess nurturing or motherly emotions. Similarly, in a heterosexual couple, emotional and psychological roles should not be judged solely based on gender. Such roles are part of a border psychological concept and must be understood beyond traditional gender-based analyses. 

In my opinion, the government should not amend the existing laws dealing with marriage, adoption, succession, and divorce. When UCC was introduced, similar issues arose concerning the LGBTQ community. A better way forward would be to enact a special law specifically for this community addressing all relevant matters such as definition of marriage, succession, inheritance, divorce, custody of children, age of the marriage, adoption etc. Since these aspects are not recognized by traditional and customary norms, it is important to provide legislative consent and recognition through law. A special tribunal should also be established with appropriate power and jurisdiction to deal with matters under this special law.

Conservative Public Morality- deep rooted societal and religious beliefs resist same-sex unions.

Implementation Gap- Even existing LGBTQ + protections lack ground-level enforcement.

Lack of Political will- No serious legislative attempts by parliament to address the issue.

Misinterpretation of Indian Culture- False narrative that homosexuality is “western” and un-Indian.

Legal void in civil rights- Same-sex couples face hurdles in 

• Adoption 

• Property and inheritance

• Joint bank accounts and insurance

• Medical decision-making

For Legislature: Amend Special Marriage Act with gender-neutral language. Pass a Civil Union Act or same-sex marriage law or make a special law. Recognize LGBTQIA + parenting, inheritance, and adaptation rights.

For Judiciary: It plays a pivotal role, so continue using progressive interpretation of fundamental rights. Ensure that constitutional morality trumps public morality.

For Executive: Implement sensitisation in government offices, police, health, education. Mandate anti-discrimination policies in public and private institutions.

Awareness and Education: Introduce gender studies and constitutional values in school curricula.

Administrative Recognition: Promote inclusive human rights policies in workplaces. National Commission for LGBTQ + Rights

For Youth and Civil Society: Normalize queer identities through media, art, literature, and discourse. Advocate for gender-inclusive curricula and sex education. Campus debates, law reviews, and youth activism should spearhead social change.

The path to legal recognition of same-sex marriage in India reflects a tension between constitutional morality and social morality, individual liberty and collective custom, and judicial progressivism and legislative inertia. While the courts have laid the foundation for equality, the journey remains incomplete until love, irrespective of gender, is celebrated with equal dignity under law.

As the Constitution evolves and society awakens, recognising same-sex marriage is not merely a legal necessity-it is a constitutional imperative.

“The Constitution is not a mere lawyer’s document, it’s a vehicle of life, and its spirit is always the spirit of age”- Dr. B.R. Ambedkar

Legal recognition of same-sex marriage in India is not a matter of privilege, but of justice. It is about aligning the law with the Constitution’s trinity of liberty, equality, and fraternity, and restoring the dignity of individuals whom history and society have long marginalized. As Dr. B.R. Ambedkar rightly said:

“Law is the greatest disinfectant of inequality”.

The time is ripe for India to uphold its constitutional promises- not in letter alone, but in spirit- by embracing marriage equality.