Legality of Same-Sex Marriage in India

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“I am what I am. So, take me as I am.”

-Dipak Misra, Former Chief Justice of India.

This statement[1] said by the former Chief Justice of India while delivering one of the most significant judgements of the country holds more power than one can imagine. Section 377 of the IPC[2] states that:

“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 with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

On September 6, 2018, a day marked in history, a five-judge bench unanimously declared Section 377 as unconstitutional in the Navtej Singh Johar v. Union of India[3] case thus legalizing homosexuality keeping in mind that sexual intercourse needs to be consensual and does not involve minors and bestiality. Homosexuality is a type of sexual orientation where people develop a romantic and sexual attraction towards people of the same sex. Traditionally, it has been rejected by the society for being “against the order of nature” and thus finding a law in place in most countries calling it illegal. As of October 2021, only 30 countries[4] in the world recognize same-sex marriages. Even today there exist many countries where homosexuality is penalized with either life imprisonment or death.

In India, the stigma around homosexuality primarily started during the British era. If one were to go back in time numerous types of eroticism, including homoeroticism were prominent in the early Sanskrit texts, architecture, and art. The famous Khajuraho temples in Madhya Pradesh known for their erotic sculptures also include same-sex sculptures. The Hindu mythology too has mentions of homosexuality, a prominent one being Mahabharat’s Shikhandini. Born as a woman, Shikhandini identified as a male leading to being banished from the kingdom. However, he later transformed himself into a man named Shikhandi, eventually marrying a woman. In the Mughal Empire, same-sex relations were prohibited, and people were punished for the same if found guilty. The British Raj along with the European companies based on their stigmas and orthodox mentality from the West introduced Section 377 under the Indian Penal Code of 1860 and thus penalized any kind of “unacceptable carnal yearning”. This section was retained in the Constitution post-independence and was only removed in 2018 around 70 years later.

[5]In 2001, the first-ever petition was filed by an NGO named Naz Foundation in the Delhi High Court asking for Section 377 to be declared unconstitutional which was dismissed by the HC in 2003. In 2009 the Delhi HC in a landmark judgement decriminalized homosexuality stated to be in violation of Article 14, 15, and 21 of the Constitution. In 2012, after numerous petitions filed against the Delhi HC judgement the Supreme Court overturned the decision citing it to be “legally unsustainable” and claimed that “only a minuscule fraction of the country’s population constitutes LGBT” and “hardly 200 people have been arrested under sec 377 in 150 years”. Further, it recommended the Parliament to address the concerns. In 2015, Congress MP Shashi Tharoor introduced a private member bill proposing decriminalizing homosexuality but the House voted against the bill. In 2016, Five petitions were filed by S Johar, Journalist Sunil Mehra, Chef Ritu Dalmia, Hotelier Aman Nath, and business executive Ayesha Kapur. The petition, filed by well-known LGBTQ activists, claimed their “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity, and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.” Finally, in 2018, a five-judge bench led by Chief Justice of India Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud, and Indu Malhotra, began the hearing for these petitions.

In India, marriage falls under the personal laws which are segregated based on religion. Mainly, the laws of marriage are the Hindu Marriage Act, 1955, the Muslim Personal Law, the Indian Christian Act, 1872, Parsi Marriage and Divorce Act, 1936, or the Special Marriage Act. There isn’t necessarily any statement prohibiting same-sex unions in the Constitution nor a specific definition calling marriage specifically a union between a man and a woman but at the same time, there is no implied recognition of same-sex unions either. Speaking from the societal perspective which plays an important role in a matter like this, public opinion is not very encouraging. After the Section 377 verdict, data from various opinion polls suggested that general resistance and rigidity around homosexuality continued among Indians although, over time people have become much less rigid. A survey conducted by the Varkey Foundation shows that support for same-sex unions was higher among young adults ranging from 18 to 21 years[6]. The surveys although are not recognized in a legislative manner, they are taken into account during judicial proceedings to know the general public opinion on the matter.

In 2020, three petitions were filed before the Supreme Court for giving legal recognition to same-sex unions. The first PIL was filed by Abhijit Iyer Mitra, Gopi Shankar, Giti Thadani, and G Oorvasi[7] for recognizing same-sex marriage under the Hindu Marriage Act. The love story of the couple, Kavita Arora and Ankita Khanna is well known. They worked at the same office and fell in love, but their relationship was not allowed due to Section 377 which was still in place at that time. After the 2018 verdict, they were one of the many homosexual couples who finally were given the due justice however the happiness didn’t last for too long because despite the verdict they could not enjoy the constitutional rights granted to a heterosexual married couple nor could they take benefit from the matrimonial rights and relief. In October 2020, the couple moved to the Delhi High Court filing for same-sex marriage and stated that “without official recognition by the Constitution and legal system, they are strangers in law”[8]. The third petition was filed by Vaibhav Jain and Parag Vijay Mehta (OCI).[9] They sought protection under the Foreign Marriage Act. The Delhi HC had forwarded the petitions to the Centre asking for a reply for the same. The Centre in response dismissed the petitions and opposed the idea of same-sex marriages.[10] It said that “Any interference with the existing marriage laws would cause complete havoc with the delicate balance of personal laws in the country” and further went on to say that the 2018 Supreme Court judgment neither intended to nor did, legitimize same-sex marriage. Centre, citing the Supreme Court Ruling of Navtej Singh Johar case pointed out that same-sex couple was given the freedom to lead a dignified private or personal life about Article 21 of the Indian Constitution28 but that, by no means, grants the homosexual couples public rights related to marriage and legitimacy of their human conduct. The Centre also stated that there is no acceptance of such marriages in the personal or codified laws as these are western concepts and have no place in the Indian society where marriages are based on age-old customs, traditions, rituals, social ethics, etc. Although marriage is a union between two private individuals, the institution is a social one and thus cannot be limited to concerns about the privacy of certain individuals. Additionally, in a homosexual marriage, it will not be possible to term either of the individuals as “husband” or “wife” thus making the statutory provisions regarding marriage null.

Internationally, the first country to authorize same-sex marriage was the Netherlands in 2001, after a significant number of petitions filed for the same.[11] Interestingly, on April 1, 2001, when the verdict was announced, four same-sex couples were wedded increasing to 382 in the subsequent month. This move was followed by Belgium in 2003. [12]Switzerland is the latest country to have allowed same-sex marriages and child adoption for those couples in 2021. Costa Rico was the first Central American country to give a green signal to same-sex marriages in 2020.[13]In the USA, out of the total 50 states, 37 allow same-sex marriages while 13 states continue to ban the same. Moving East, In the African continent, South Africa is the only country to allow same-sex marriage in 2006. Even today there exist a large number of African countries that penalize homosexuality with a death sentence. In the Asian context, Taiwan, in 2019 became the first country in Asia to allow same-sex marriages.

Looking at the current scenario, the legalization of homosexual marriages seems like a pipe dream. It is abysmal that a country boasting of being the largest democracy in the world took 124 years just to decriminalize homosexuality, but this further gives hope that one day the same could be achieved concerning same-sex marriages. One must not lose hope and believe that someday the society and the law would recognize all types of marriages irrespective of the sexual orientation of the partners involved. It is high time that we collectively give up on such age-old prejudices against the LGBTQ+ community and give them the respect they rightfully deserve in addition to treating them as true and equal in the society. As Justice D Y Chandrachaud has rightly stated in a 2014 judgement[14], “It is difficult to correct a historical injustice. We can, however, chart a trajectory for the future. Much more is at stake in this case than simply decriminalizing homosexuality. It’s about folks who desire to live a dignified life.”

  1. https://www.ndtv.com/india-news/section-377-take-me-as-i-am-says-chief-justice-reading-out-landmark-377-verdict-1912230

  2. 1 Indian Penal Code 1860, s 377

  3. WRIT PETITION (CRIMINAL) NO. 76 OF 2016

  4. https://ticotimes.net/2021/09/27/same-sex-marriage-now-legal-in-30-countries

  5. https://indianexpress.com/article/india/section-377-timeline-homosexuality-gay-sex-5253129/

  6. https://www.varkeyfoundation.org/media/4487/global-young-people-report-single-pages-new.pdf

  7. https://www.thehindu.com/news/national/hc-asks-centre-to-respond-to-plea-to-recognise-same-sex-marriages-under-law/article33130651.ece

  8. https://www.thehindu.com/news/cities/Delhi/court-extends-centre-last-chance-to-reply-to-pleas-seeking-recognition-for-same-sex-marriage/article33530122.ece

  9. https://timesofindia.indiatimes.com/city/delhi/two-couples-lead-fight-to-legalise-gay-marriage/articleshow/78819208.cms

  10. https://indianexpress.com/article/india/same-sex-marriages-legal-recognition-centre-7204303/

  11. https://www.reuters.com/lifestyle/dutch-couples-mark-20th-anniversary-worlds-first-same-sex-marriages-2021-04-01/

  12. https://timesofindia.indiatimes.com/world/rest-of-world/same-sex-marriage-around-the-world-as-swiss-vote-in-favour/articleshow/86553186.cms

  13. https://worldpopulationreview.com/state-rankings/same-sex-marriage-states

  14. https://thewire.in/law/justice-chandrachud-judgment-right-to-privacy

This article has been written by Shruti Gala. She is a first year BBALLB(H) student at Bennett University.

LinkedIn- https://www.linkedin.com/in/shruti-gala-bb0b67220?lipi=urn%3Ali%3Apage%3Ad_flagship3_profile_view_base_contact_details%3BFW8WI4yYQWqOzaFudZz1bw%3D%3D