Love Knows No Gender: a Progressive Look at Same-Gender Marriage act in India

two girls are presenting the status of Same-Sex Marriage

Discover the complex intersection of tradition and human rights in India as we uncover the history and current state of inter-caste and same-sex marriage in the country. From ancient customs to modern discrimination, this article delves into the challenges faced by those seeking to marry outside their caste or gender.

The Human Rights Charter guarantees the right to marriage under the heading “right to family.” This right is not explicitly mentioned in the Indian Constitution. However, it is interpreted under Art 21 that the right to marry is a universal right. It is open to everyone, but it does not include same-sex marriage. Marriage is recognised at the international level, but there is no special marriage law in India. Marriage is mentioned in various covenants, but it does not include marriage between people of the same sex. The right to marry is guaranteed by the Indian constitution, but it is not a fundamental right.

Since ancient times, the caste system has been a rigid part of Indian customs. It is an evil that has tainted and unfairly applied Hindu rules and regulations. Discrimination based on caste has ruined society and created differences between people from different castes. Marriage is a sacred institution, especially in Indian culture. Even in this day and age, there are people who adhere to strict caste rules.

Marriages in Hindu society are based on caste; inter-caste marriages are considered a sin and are not sanctioned by the elders. There are various reasons why Hindu society is opposed to inter-caste marriages, such as fear of societal norms and social standing, loss of reputation, cultural difference, backward superstitions, torture at the hands of society, and so on. The consequences of not approving inter-caste marriages are numerous.

It stifles societal growth, creates schisms among various social groups and castes, and threatens national unity. In the name of honour-killings, couples in inter-case marriages have been driven to commit suicide or killed in a number of cases.

Lata Singh v. State of Uttar Pradesh AIR 2006 SC 2522 for Same-sex Marriage

The Supreme Court of India stated in a landmark decision, Lata Singh v. State of Uttar Pradesh AIR 2006 SC 2522, that the right to marriage is a part of the right to life protected by Article 21 of the Indian Constitution. The court further stated, “This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the boy’s or girl’s parents disagree with the proposed inter-caste union, the most they can do is end social ties with their child or children, but they are not allowed to make threats, carry out or encourage acts of violence, or otherwise harass the prospective spouse. There is no restriction against an intercaste marriage under the Hindu Marriage Act or any other law because both parents in this case were adults and free to wed whomever they chose.

Indian society is traditionally conservative. People are still hesitant to form lifelong relationships with others or with their castes and religions, even in modern times when the world’s corners are expanding. Accepting same-sex marriages becomes all the more difficult in a situation where the minor issue of caste is such a social stigma. Same sex marriages are completely inconceivable in a culture where people are murdered for blending castes or religions.

Law and Homosexuality in India

The perception of homosexuality has shifted dramatically over the last century. Since 1974, homosexuality has no longer been considered an abnormal behaviour and has been removed from the list of mental disorders. A number of nations also decriminalised it. Since then, a number of nations and states have passed anti-discrimination or equal opportunity legislation to defend the rights of gays and lesbians.

South Africa was the first country in the world to make lesbian and gay rights a constitutional requirement in 1994. Similar legislation exists in Canada, France, Luxembourg, Holland, Slovenia, Spain, Norway, Denmark, Sweden, and New Zealand. The United States Supreme Court ruled that no state could pass legislation discriminating against homosexuals. As of yet, there have been no such progressive changes in India, and homosexuals continue to be subjected to various forms of violence that are encouraged by the government and society. There is no explicit reference to homosexuality or homophilia in any of India’s statute books.

A homosexual or homophilic person cannot be prosecuted. However, the sexual act of sodomy is a crime. Section 377 of the Indian Penal Code (IPC) of 1860 contains the major provisions for criminalising same-sex acts. Section 377 of IPC talked about Unnatural Offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. It means that penetration is sufficient to constitute the necessary carnal intercourse for the offence described in this section.

Based on the erroneous belief that sodomy and homosexuality are the same thing, this I.P.C. provision has persisted for centuries. A homosexual man is regarded as a “type of person” who engages in only anal intercourse with his partner. However, emotional attachments, fantasies, and affectionate and erotic desire are not taken into account. Thus, it is an attempt to criminalise sodomy while also criminalising and stigmatising homosexuality. Because of this, the IPC typically views homosexuality as a crime.

Landmark Judgments Decriminalizing Section 377

Numerous petitions and PILs have been filed in courts across the country seeking the decriminalisation of Section 377 of the IPC. When trying to comprehend the history of litigation surrounding the law that criminalises homosexuality, it is most important to read four landmark decisions.

  1. Naz Foundation v. Government of NCT of Delhi, 2009 – The case of Naz Foundation v. Government of the National Capital Territory of Delhi is a watershed moment in Indian legal history, heard by a bench of two Delhi High Court justices. This is the well-known decision in which it was determined that consensual sexual intercourse between homosexual individuals is not a crime and that criminalising it violates citizens’ fundamental rights guaranteed by the Indian Constitution. With this ruling, a long-standing law that made homosexual acts consensual illegal was overturned.
  2. Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors., 2013 – Even though the Delhi High Court’s decision in the Naz Foundation case was a historic and libertarian move, in a society like India where people find it difficult to adjust to unforeseen changes that appear to go against their ‘culture and beliefs,’ it was no surprise that the decision received widespread criticism across the country, leading to a petition to overturn the decision in the case of S K Koushal v. Naz Foundation.
  3. National Legal Services Authority v. Union of India, 2014 – Transgender people have played an important role in Indian history and culture. Sadly, people in this community face discrimination on a daily basis simply for being who they are. A transgender person’s life in India was extremely difficult until April 15th, 2014. On this day, the National Legal Services Authority v. Union of India case—often referred to as the NALSA judgment—was decided by the bench of Justices K. S. Radhakrishnan and A. K. Sikri. This decision emphasised India as a country that values gender equality, as it declared transgender people who do not fit into the male or female categories to be in the ‘third gender’ category. The right to gender identity, which originally only applied to people who identified as male or female but now also includes the right to choose their sex in the third gender category, was granted to transgender people after it was observed that the fundamental rights guaranteed by the Indian Constitution would apply equally to all or any, including them. Because they were not categorised as either male or female, transgender people have endured years of abuse, violence, discrimination, humiliation, and torture. This decision put an end to the long-standing grievances of the transgender community.
  4. Navtej Singh Johar v. Union of India, 2018 – Following the historic ruling in the NALSA case, a number of well-known individuals intervened and petitioned a five-judge Supreme Court panel to reverse the ruling in S K Koushal v. Naz Foundation. Dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur were among those who signed the petition. To be sure, it was past time for India to repeal an antiquated law that, in the first place, was an outrageous violation of its citizens’ fundamental rights. As a result, the Navtej Singh Johar v. Union of India case was the saviour that finally secured for members of the LGBT community the fundamental liberties and rights they were due as citizens.

Issues of Same-Sex Marriage

Nine nations around the world have death penalties for same-sex crimes. In India, the LGBT community breathed a sigh of relief after the 2018 verdict in the Navtej Singh Johar case, and rightly so- their decade-long battle had finally paid off. In order to accommodate the members of the community and provide them with equal protection under the law, the law relating to LGBT rights in India as it stands today needs to be significantly evolved. The right to marry, for which a PIL is currently being heard in the Delhi High Court, is the most fundamental freedom still awaiting recognition for the LGBT community.

The Transgender Persons (Protection of Rights) Act was enacted in 2019 to further ensure protection and equal rights for transgender people. It aims to recognise transgender people’s identities and prohibit discrimination in areas such as education, employment, healthcare, property ownership or disposal, public or private office, and access to and use of public services and benefits.

However, the law has encountered a lot of opposition from activists because it is problematic for a number of reasons, including the fact that it criminalises transgender people who beg and requires any transgender person under the age of 18 to live with their birth family. It is also argued that the Act primarily recognises Hijras and transwomen, with little to no mention or emphasis on gendegenderqueer men or even intersex individuals.

In addition to the harsh legal environment, homosexuals also experience social stigma. Same sex marriages are still unthinkable because any sexual relations between two people of the same sex elicits hatred and disgust. To protect the system of same sex marriages, there is an entrenched system of dowry in Indian culture. If both parties are males, or if both parties are females, it will be difficult to determine who will pay dowry to whom. Furthermore, same-sex relationships are considered unnatural or against the natural order.

The legal system as it relates to interpersonal relationships in India is influenced by the society’s strong traditionalism. Intimacy of any kind is not tolerated unless it is legitimised in the form of marriage, where socially acceptable sexual access occurs. Our country’s social order is based on religion, and procreation is viewed as an obligation for the performance of various religious ceremonies.

Any expression of homosexuality is perceived as an attempt to renounce tradition and promote individualism, posing a threat to the order in Indian society. In addition, our society is very community oriented and individualism is not at all encouraged. It is believed that legalising homosexual marriages will destroy the concept of a traditional family and undermine the sanctity of marriage. It should not be forgotten that Indian society is patriarchal in nature, and the fact that some women and men have different choices that are not sanctioned by the ‘order’ scares them.


As evidenced in this article, LGBTQIA+ individuals should have the right to equality, freedom from prejudice, and the right to have a relationship with people of the same sex, while also having the same amount of legitimacy as heterosexual couples. Because homosexuality is no longer a crime, we cannot claim that members of the LGBTQIA+ community are on an equal footing with heterosexuals. Instead, we must grant them the same rights as heterosexuals in terms of adoption, inheritance, maintenance, and other marital privileges.

The first ideal solution would be for new laws to be passed or for existing laws to be amended, but doing so would be extremely difficult because these personal marriage laws have been in existence for a long time and are regarded as customary. In order to remove the assumption that marriage is exclusively heterosexual and to make it inclusive of all gender identities and sexual orientations, the Special Marriage Act of 1954, which was passed as India’s first secular marriage law, must be amended.

However, given the government’s apparent commitment to preserving the institution of marriage, the LGBTQIA+ community may instead advocate for the establishment of a civil partnership system that would provide same-sex couples with the same legal protections as heterosexual couples. The system of civil unions and partnerships will enable the introduction of new legislation covering same-sex relationships, such as inheritance and adoption.

Civil unions or partnerships have the same legal standing as same-sex marriage in countries where same-sex marriage is permitted. A civil partnership system exists in many European countries, as well as South Africa. However, limiting homosexual couples to civil union privileges and eliminating the option of marriage is discriminatory in and of itself because it provides the LGBTQIA+ community with a less desirable option than marriage. Due to the “constitutional protection extended to personal laws,” a draught 2017 UCC bill in India that attempted to make the utopian dream of same-sex marriage—or even a less desirable alternative of civil unions—a reality in the Indian legislative framework was completely abandoned.

Back to list

Related Posts

Leave a Reply

Your email address will not be published. Required fields are marked *