Legislative analysis of same-sex marriage as a fundamental right

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The institution of marriage in India is one that has not only been primitively linked to the societal standards and norms from pre-historic times but through development, has become a matter of economic and political importance too. The concept of marriage in India is so closely tied to the historic religious practices that for the legalization of same-sex marriages in the upcoming social struggle for equality between different genders, races, sexuality, etc, the perspectives are still too narrow and rather difficult for people in India to accept. Not only is the general perception of sanctity of same-sex marriage a problem, but even legislative struggle seems to be futile. This is apparent even after what has gained recognition as one of the biggest movements of progressive liberation towards justice with the decriminalization of Section 377 of the Indian Penal Code, that penalized carnal intercourse against the nature of order. Following this decision of the Hon’ble Supreme Court[1], advancements for members of the LGBTQ+ community have been limited to consensual adult sexual activities. No talks regarding the legal status of such relationships, fundamental orders or alterations in the existing laws to accommodate the minority section of society have been made. As noted in the recent 2021 opinion submitted by the Centre to Delhi High Court opposing the idea of same-sex marriage to gain legal recognition because it does not fit into the “Indian family unit concept” therefore dismissing the petition to uplift the religious practices and rituals of India. The pleas to recognize this under Special Marriage Act was also opposed.

Key words: Same-sex marriage, Special Marriage Act, Constitutional right.


A well-established ideology towards the establishment of LGBT relationships and community in the previous judgements comes from the understanding of homosexual practices in ancient India.[2] The laws opposing such activities only came from the foreign invasions in India from the 16th Century.

The petitioners seeking solemnisation of their marriage regardless of their sex under the Special Marriage Act herein pleaded that the act is unconstitutional as the requirements from it currently are facilitated only to “male” and “female” members for solemnisation of the marriage.[3] The petitioners gave that the act is violative of their fundamental right to marriage and therefore need to be read as “neutral to gender identity and sexual orientation”.  In a related incident, the court’s decision on the constitutionality of Special Marriage Act on the grounds of violating Articles 14,15,16 and 21 is still pending.[4] The petitioner examines that the requirement regarding the provision of public notice and permission to object for marriage is not applicable to couples who are marrying under Hindu Marriage Act or Islamic personal laws.


The Special Marriage Act of 1954 is a provision by the Parliament of India for union of civil marriages (or registered marriage) for citizens of India and all alike Indian nationals in foreign countries, irrespective of their religion or faith. Proposed in the 19th Century, this act gives legal sanction to inter-religion marriages.

For marriage between Hindus, the Hindu Marriage Act is applicable. Section 5 lays down various conditions that need to be met in order to solemnise the union of marriage. These are:

  1. Neither party should have a spouse living at the time of marriage
  2. Neither party should be incapable of giving consent to marriage due to unsoundness of mind; or
  3. Though capable of giving consent, is unfit for marriage due to mental disorder that deems them unfit and for procreation of children or;
  4. Due to suffering from insanity
  5. The minimum age of the bride is 18 years and the bridegroom is 21 years
  6. Neither parties are within the degrees of prohibited relationships of “sapindas”[5] to each other

The statutory provisions laid down by the HMA, 1955 in their arbitrary categorization of what constitutes of a “bride” and “bridegroom” have been challenged my members of the LGBT community before. In efforts to make the act more inclusive of gender identities, the arguments put forth were that of the conditions for satisfying what makes a marriage are not coherent and have been used loosely to define a “heterosexual marriage”.  The Section 4 to 14 of the act deals with solemnization of special marriages and mentions a “marriage between any two persons” may be solemnized by the act. Under the special conditions, it can be interpreted that the act intends for the unification of same-sex marriage. Use of grammar and language is important in justification of legal sections and statutes. Further, section 5 under the section applicable for notice of intended marriage, it mentions that a “notice is to be given by the parties”.

Other grounds for opposition of same sex marriage as per the jurisdictional authority are wide.[6] Firstly, the legislation being unconstitutional has been challenged on judicial intent. The provisions mentioned for divorce under s. 13 that allows grounds of divorce available to the wife. The distinction is important in balancing the maintenance of other legal rights involved in the union of marriage; pertaining to guardianship and alimony for instance. Therefore, the current status of LGBT relationships is no more than personal consensual relationships. Neither does the legal framework provide for the enjoyment of right to inheritance nor in terms for maintenance from their spouse or in terms of adoption, no protection from discrimination whether the same is in a professional work place setting (same sex couples cannot claim maternity leaves, compensation), housing discrimination or the interpretation of the state recognition of such a relationship, no claims from insurance-based policies or funding structures (financial discrimination). The situation of recognition of same sex couples in India is so bleak that laws do not only exclude them but exempt them from certain rights. For instance, same sex partners are currently neither able to legally adopt a child nor can they use surrogate services for the same under the Surrogacy (Regulation) Bill of 2019. The legal rights that are conferred upon same sex couples is tightly linked to the legal status and the decisions of the Court in an attempt to recognize them as functional members of society capable of marriage.[7]

Time and again, the government has used the public policy argument against same sex marriages as well. Quoting from the recent announcement ““Institutions of marriage and the family are important social institutions in India that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children and their mental and psychological upbringing also. It is submitted that the celebration of a marriage gives rise to not just legal but moral and social obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage and to ensure their proper mental and psychological growth in the most natural way possible,” the Centre submitted in its affidavit.


The petition challenged section 4 and schedule 2 to 4 of the Special Marriage ACT, 1954 on the grounds that it is violative of Fundamental rights bestowed to every citizen of India under Article 14, 15 (1), 16 (2), 19(1)(a) and 21 of the Constitution of India. The judgement of the Delhi High Court in Naz Foundation v. National Capital Territory of Delhi to protect the rights of homosexuals was not an instantaneous action, but was achieved over a course of eight years of legal proceedings. The efforts made insofar have successfully highlighted the Section 377 as a tool for oppression and failure of recognition of the violative nature of the same. For the court to commence here and not extend the right to marry and other civil rights available to heterosexual couples is a violation.[8] Marriage is a “holy matrimony” in Indian culture and to same-sex couples will hold the same moral ethics and traditional values.

  • Article 14, 15 and 16: The significance of these articles is with regard to equality before law and equal protection of law within the territory of India and non-discrimination on grounds of religion, race, caste, sex, descent, place of birth, residence or any of them.  Following the Navtej Singh judgement, the right to marry is not outside the range of the constitutional rights that are now available to the LGBT community. Limiting these on the basis of traditional values and laws which are not accountable for the same is against the legal spirit of jurisprudence. One way of recognising the marriage as legal is by civil courts solemnising it, which has been the case in High courts of Orissa, Punjab, Haryana and Uttarakhand. Petitions to make amendments to the exiting laws of marriage in India have all been rejected by the court in the adjudication process itself. The matter of marriage is now a case-to-case basis, which is not an effective way of unifying the civil and social nature of personal laws, and therefore deemed ineffective. Furthermore, for the court to limit their interpretation to sexual intercourse and not recognising emotional bonds that exist within such relationship is immoral, irrational and discriminatory in the context of human rights. For there to be such a classification that limits the recognition and existence of a substantial section of society is not only heavily controversial but also unconstitutional.
  • Article 21: The constitutional provision that gives the right to marry a person of one’s choice is an integral part of Article 21 which grants a right to life to all citizens of India; i.e., a life of dignity and respect. The article which is one of great procedural value and linked indiscriminately to the people of India is being violated upon refusal of legal recognition and protection of marriages of same-sex couples. In the reading of the Constitution, the court uplifts personal liberty of an individual whose rights are being violated irrespective of personal beliefs held previously. This phenomenon of control of discretionary power into unfolding as being unjust, unreasonable and arbitrary falls short in this matter, as not only values of faith and religion, but also politics are being considered for constitutional upliftment.  It has been denoted in the case of Shafin Jahan v. Asokan K.M and ors[9] by the Hon’ble Court after a reference from the principles laid down in international law[10]. “The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership, are within the central aspects of identity. The law may regulate (subject to constitutional compliance) the conditions of a valid marriage, as it may regulate the situations in which a marital tie can be ended or annulled.”

Noteworthy opinion promulgated by Justice D.Y Chandrachud is on the matters of inclusiveness pertaining to right to privacy.[11] The renounced personality extends the definition and scope of matters of privacy to: a) privacy of an individual, b) privacy related to information and c) privacy of choice of a person. Therefore, for the Court to not alter a stance on the position of same-sex couples in their marriage is a violation of a personal autonomy and liberty that is to be enjoyed by a person despite differences (and by uplifting equality). The core belief held in the constitution is to govern matters of all and any personal issues that will allow for a holistic recognition of human privacy. Therefore, a safeguard to be provided to adult consenting partners in a unification of their marriage not just limited by the narrow definitions of gender and sexual orientation.[12]


The legislative intent and purpose are a bleak argument for the guaranteed protection of rights of LGBT community. The idea that the sanctity of marriage is reserved for heterosexual couples due to its rich cultural and ethnic values is dehumanising especially in the light of revolutionary changes being brought for the community to be more equal. The views of the Central government in their announcement that legalisation of same sex marriage will be an interference in the balance of the country and will cause havoc is the reality of India. The dismissal of the the petitioners for their claim of no fundamental rights existing for them shows the disinterest in the protection of the community. The grant of exercising civil rights and human rights interest is still excluded from the narrative. For the members to seek the solidification of their bond from marriage is the attempt to break the ideology that exists in the ideal institution that should be followed for a life-long commitment of marriage and love. Apart from these arguments, a look at the international standards and economic as well as social benefits on a utilitarian level is also essential. For instance, the socially conservative laws have been ruled unconstitutional even in countries like Japan, where the society has been heavily regressive in their views. The laws need to be in order for liberation of the community not just in matter of personal sexual relations but in a dignified manner and therefore, recognising the basic rights entitled to them. Loopholes existing in the legislation and a misunderstanding of the interpretation causes for more divide and apprehension.


  • A worthwhile suggestion for the absolute inclusion of same-sex marriages and relationships into the legal sanction is that of a uniform civil code that is not violated by personal laws and priorities the code of equality preserved by the Constitution.[13]
  • A uniform civil code not only meets with the obligation of India under Article 44 for the protection of sexual minorities and attainment of sustainable goals of gender equality.
  • Mere amendments to the language or format of the Special Marriage Act will allow for a better division of rights in the diverse fabric of society by Judiciary.
  • Annulment of the societal definition of marital ties with extension of remedies and conditions for a valid marriage by the Legislature.
  • For there to be more acceptance in this sphere from society, the government and the Indian state having made contributions to the advancements for equality must also form a mode of representation and implementation in the public policy domain.

[1] Navtej Singh Johar v. Union of India (2018) 10 SCC 1: Challenging the constitutionality of Section 377 of the Penal Code, 1860

[2] B. K. Agarwal and V. Singh, Private International Law in India 47 (Kluwer Law International, 2010). See V. C. Govindaraj, Conflicts of Laws in India 20 (Oxford University Press, 2011)

[3] “Against Indian Ethos’: Centre Opposes Same-Sex Marriages in Delhi HCG” THE WIRE February 26, 2021 available at https://thewire.in/rights/against-indian-ethos-centre-opposes-same-sex-marriages-in-delhi-hc last visited on 18th March 2020

[4] Nandini Praveen v. Union of India

[5] Id section 3 of the HMA, 1955 defines “sapinda relationship” wherein two persons who have a common generational ancestor are considered to be sapindas, and prohibited from marriage to each other

[6] Issues of same sex marriage found on https://upscexpress.com/2021/03/12/issue-of-same-sex-marriage/ last seen on 14th March 2020.

[7] Department-Related Parliamentary Standing Committee on Health and Family Welfare: Research conducted in Report No. 102 states that same sex couples are not fit for raising a child and ensuring them a better future due to their “illegibility to marry”

[8] Martha Nussbaum, A Right to Marry? Same-sex Marriage and Constitutional Law, Dissent Magazine (2009).

[9] AIR 2018 SC 357

[10] Article 16 of the Universal Declaration of Human Rights

[11] Justice KS Puttaswamy (retd) and another v. Union of India and others

[12] Shakti Vahini v. Union of India, AIR 2018 SC 1601. P42 “.…It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected…..”

[13] Sarla Mudgal vs. Union of India, (1995) 3 SCC 635 In this case, the Court expressed that UCC would further national integration by removing ideology-based conflicts.

Author: Muskan Sunil Nagdawne, III year at Symbiosis Law School (B.A.LLB Hons)

Editor: Kanishka VaishSenior Editor, LexLife India.

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