Authored By: Hardi Durugkar
Indore Institute Of Law
Introduction
Marriage as a legal institution provides rights and duties that extend further into areas like inheritance, adoption, taxation, and healthcare. The institution itself offers protections beyond personal relationships in these important domains. In India, marriage is surely governed by personal laws based on different religions and moreover by secular laws like the Special Marriage Act, 1954. Basically, both systems assume heterosexual marriages and systematically exclude same-sex couples the same way.
We are seeing that the Navtej Singh Johar case has removed criminal charges for homosexuality. This judgment only made same-sex relations legal under Indian law. We are seeing that Navtej Singh Johar v. Union of India (2018) was only a major turning point for LGBTQ+ rights in our country. The court said that sexual orientation is part of a person’s identity and gets protection under Articles 14, 15, 19, and 21 of our Constitution. Marriage equality recognition is surely still difficult to achieve. Moreover, this acceptance remains out of reach for many communities. Basically, the Supreme Court’s verdict in Supriyo Supriya Chakraborty case follows the same legal principles as established precedents. The Court applied the same constitutional framework that has been used in similar matters before. The Union of India (2023) actually clarified that queer individuals definitely have rights to live together and form unions. However, giving them marriage rights is actually something the legislature must decide, not the courts. We are seeing a clear gap that shows the tension between what the constitution promises and the slow action of lawmakers only.
Historical and cultural context
Before colonial laws placed limitations on same-sex unions, Indian society had a complex and occasionally accepting attitude toward them. Different sexual orientations were recognized in cultural narratives, as seen by the depictions of same-sex intimacy in ancient writings and temple art, such as sculptures in Khajuraho and Konark. Stories of gender fluidity and non-heterosexual interactions, like the metamorphosis of gods and goddesses, are also found in Hindu mythology. Yet, in 1861, the British enacted Section 377 of the Indian Penal Code, which criminalized “unnatural offenses” and profoundly changed public attitudes by placing a moral and legal stigma on same-sex relationships. Although mostly in private or subcultural settings, some communities and areas persisted in recognizing non-heteronormative partnerships in spite of these developments. The current fight for same-sex marriage can be viewed as a legal and cultural reclaiming of historical respect and dignity, as this historical context demonstrates that same-sex partnerships are not essentially “Western” but have been a part of Indian society for generations.
Indian constitution and same sex marriage
Some of the provisions used by advocates in this situation include Article 14 (equality), Article 15 (non-discrimination), and Article 21 (life and personal liberty). Thus, as the Supreme Court upheld, it ruled it is constitutional for same sex couples to enjoy the provisions of the Constitution. In this case, the court stated that it cannot alter the definition of ‘marriage’ under several existing statutes. Under any circumstances, including the Hindu Marriage Act or the Special Marriage Act. Therefore, despite the appearance of a larger constitutional connection between the Indian Constitution and same-sex marriage, the real laws of marriage require amendments from the Parliament to establish full marriage rights in India.
Judicial precedents in India
Navtej Singh Johar v. Union of India (2018)
The Supreme Court invalidated Section 377 of the Indian Penal Code, decriminalizing homosexuality. The ruling highlighted each person’s right to autonomy, dignity, and love.
Shafin Jahan v. Asokan K.M. (2018)
A precedent for marriage equality was established when the Supreme Court affirmed the right to select a spouse under Article 21.
Deepika Singh v. Central Administrative Tribunal (2022)
A progressive stance toward acknowledging diverse relationships is demonstrated by the Court’s ruling that familial relationships must not be restricted to conventional ideas of marriage.
Supriyo Chakraborty v. Union of India (2023)
A landmark case requesting that same-sex marriages be recognized legally under the special marriage act. However, Parliament will have to decide whether to allow same-sex marriage after the Supreme Court ruled against it.
Challenges and roadblocks in same sex marriage
Legal challenge – The legal obstacles to same-sex marriage recognition are substantial and have their roots in India’s legal system. Muslim personal laws, the Indian Christian Marriage Act of 1872, the Hindu Marriage Act of 1955, and the Special Marriage Act of 1954 all rigidly define marriage as a partnership between a man and a woman, leaving no room for same-sex couples. The judiciary has likewise adopted a cautious stance; in Supriyo v. Union of India (2023), the
Supreme Court affirmed LGBTQ+ people’s freedom to select their partners but declined to legalize same-sex unions, emphasizing that Parliament had the authority to do so. Because of this, same-sex spouses are denied important marital rights that are exclusive to heterosexual couples, such as inheritance, succession, property, and maintenance. This restriction is further reinforced by adoption regulations, which prohibit same-sex partners from raising a child as legally recognized co-parents and only permit adoption by “married couples,” which are considered as heterosexual. Furthermore, because India lacks a framework for civil unions or domestic partnerships, same-sex couples are unable to get even the most fundamental legal advantages, such joint bank accounts, health insurance, pensions, or the ability to visit hospitals. Therefore, even if equality and dignity are protected by constitutional rights, same-sex couples are denied the full range of marriage and family rights due to a legal void created by a lack of legislative reform.
Social and cultural challenges – The social and cultural challenges to same sex marriage in India are deeply enriched in traditional notions of family and societal values. Marriage in Indian society is often viewed not only as a personal bond but also as a union between two families, which makes acceptance of same sex relationships even more difficult. Deep-rooted conservatism, coupled with rigid gender roles, has resulted in widespread resistance to the idea of same-sex couples forming families.
Pyschological and personal roadblocks – For same-sex couples in India, psychological and personal obstacles also present serious difficulties. Because they fear rejection from friends, family, or society, many LGBTQ+ people are afraid to come out, which keeps them from publicly seeking marriage rights. People are frequently forced into secrecy, internalized shame, or even forced heterosexual marriages as a result of the pressure to live up to heteronormative norms. Emotional stress is brought on by social criticism and family resistance, which has an impact on one’s general and mental health.
Emotional stress is brought on by social criticism and family resistance, which has an impact on one’s general and mental health. Anxiety, melancholy, and a sense of loneliness might result from the ongoing fight for acceptance and attention. Furthermore, because same-sex couples are unable to rely on institutional or societal assistance in the same manner that heterosexual couples do, the uncertainty surrounding legal rights, inheritance, adoption, and social benefits exacerbates this stress. It is quite difficult for people to live honestly and authentically with their partners as well as to exercise their right to marriage because of these psychological and personal obstacles.
Institutional and bureaucratic barriers –The acceptance and recognition of same-sex marriage in India are further complicated by institutional and bureaucratic obstacles. Government institutions frequently lack the necessary structure to process or recognize same-sex unions, even when people demand their right to marry. Current regulations do not allow same-sex marriages to be registered, which results in administrative rejections for things like combined bank accounts, housing, insurance benefits, and healthcare.
Systemic discrimination is created when government personnel and agencies, constrained by current laws, routinely refuse same-sex couples access to spousal privileges. Furthermore, same sex couples are unable to depend on partial recognition for pragmatic reasons like hospital visits, pension rights, or tax benefits due to the lack of civil union or domestic partnership laws. It is very difficult for same-sex couples to exercise even the most fundamental rights and protections granted to heterosexual couples because of this institutional gap and bureaucratic inflexibility, which promote social and legal exclusion
Future Prospects and Recommendations
The future prospects of same-sex marriage in India depend on a combination of legal reform, societal acceptance, and institutional support. Legislative action, such as amending the Special Marriage Act or introducing a separate law for civil unions or domestic partnerships, is crucial to provide same-sex couples with legal recognition, inheritance rights, and adoption privileges. Judicial intervention may continue to play a role, but meaningful change requires active engagement by Parliament. Social awareness and sensitization campaigns are equally important to challenge deep-rooted prejudices and reduce stigma, particularly in rural and conservative communities. The media, lobbying organizations, and NGOs may all support equality and mainstream same-sex relationships. To guarantee that government agencies accept same-sex couples in areas such as housing, health benefits, pensions, and taxes, bureaucratic changes are also required. All things considered, a multifaceted strategy integrating institutional assistance, societal transformation, and legal recognition is necessary to establish a setting in which same sex couples can enjoy their fundamental rights and live with equality, safety, and dignity
Conclusion
The nexus of law, society, and culture, same-sex marriage acceptance in India is still a complicated matter. Notwithstanding the notable advancements in the decriminalization of homosexuality and constitutional protections, same-sex couples still encounter institutional, social, psychological, and legal obstacles that keep them from exercising their full marital rights. These difficulties are made worse by ingrained cultural norms, familial demands, and administrative constraints, underscoring the need for more than just legal reform. Going forward, ensuring equality, dignity, and protection for LGBTQ+ people will require a combination of institutional reforms, judicial assistance, societal sensitization, and legislative action. In addition to being required by law, accepting same-sex marriage is a step toward creating an inclusive culture where family, love, and commitment are valued regardless of a person’s gender or sexual orientation.
