Authored By: Krish Gaur
Apex School of Law, Apex University, Jaipur
ABSTRACT
Same-sex marriage in India did not suddenly become a legal question. For many years, the debate itself was about whether same-sex relationships should be accepted at all. When courts later recognised that sexual orientation and gender identity are part of a person’s identity, it was clearly a step forward. Still, that recognition stopped short when it came to marriage. In everyday legal terms, marriage continues to remain unavailable to same-sex couples.
This article begins with a basic idea: marriage matters mainly because the law treats it as important. It decides who is seen as family, whose relationships receive legal respect, and who does not have to justify their private life again and again. When same-sex couples are kept outside this institution, the impact is real and direct. Read with Articles 14 and 21, such exclusion affects both equal treatment and the freedom to live with security and dignity. The issue becomes more troubling when delay is defended by saying society is “not ready,” even though constitutional principles are meant to guide society, not wait for approval.
If the rights provided under the Constitution remains only to court decisions and not in lived experience, the value of those rights becomes very limited. Thus, this paper is focused on same-sex couples constitutional rights which is being violated due to some limitation by marriage laws in India.
Keywords: Same-sex Marriage, Sexual Orientation, Gender Identity, Equal Treatment, Dignity and Constitutional Claims.
Introduction
For a long time, the discussion of same-sex marriage in India stayed limited to narrow issue by not being a clear question— whether same-sex couples should be legally accepted or not. Only later did the courts begin to say clearly that sexual orientation and gender identity are part of who a person is. This recognition mattered. It moved the law away from silence and denial. But even after this shift, the law stopped short. In practical terms, same-sex couples are still kept outside the institution of marriage.
Marriage carries weight in law because the legal system gives it that weight. It is not only about personal commitment or emotional choice. Marriage decides who is treated as family. It decides whose relationships are recognised without question and who receives legal protection without having to repeatedly explain themselves.
When same-sex couples are excluded from marriage, the consequences are not abstract. They are felt in daily life r/w Articles 14 and 21 of the Indian Constitution, this exclusion raises serious concerns. Equality under Article 14 of the Constitution of India is not just about a word equal in a statute. It is about how laws affect people in real situations. Article 21, in the same way, protects dignity, autonomy, and the freedom to make basic personal decisions.
The problem becomes sharper when the refusal to recognise same-sex marriage is defended by saying that society is “not ready.” Constitutional principles are not meant to follow social comfort or popular opinion. They exist to protect individual rights, especially when those rights belong to a minority. This is where constitutional morality becomes relevant.
Seen through the idea of transformative constitutionalism, the issue is not only about marriage laws, but about whether those laws truly reflect the Constitution’s promise of equality, dignity, and personal liberty. This article examines same-sex marriage from this constitutional perspective, rather than treating it as only a question of statutory interpretation.
Conceptual Foundations of Marriage
In India, marriage has never been treated as only a personal matter between two people. The law has always attached importance to it. Marriage in India is being controlled by legislative intent but what matters is what are the rights being provided to married couples in India. Certain rights and protections automatically follow. Because of this, marriage becomes more than just a social or personal decision.
Over time, courts have also changed the way they look at personal relationships. Earlier, such relationships were often judged using ideas of morality or tradition. Slowly, this approach has shifted. Courts have started looking at relationships through ideas like dignity, freedom, and personal choice.
In Navtej Singh Johar v. Union of India, the Hon’ble Court held that Constitutional morality must prevail over social morality and personal choice relating to sexual orientation and intimacy is protected. The LGBTQ+ persons deserve equal respect and that relationships are an important part of a person’s identity and dignity. When relationships are seen in this way, marriage becomes important because it is the main way through which the law gives recognition to those relationships.
Marriage is also important because many legal rights depend on it. These include rights related to property, inheritance, maintenance, hospital decisions, and social security. These are not rare situations.
In Anuj Garg v. Hotel Association of India, the Hon’ble Court held that protective discrimination cannot be justified if resulted in exclusion or inequality. Appling the same principle same-sex marriage cannot be defended on the moral grounds and if the law gives protection mainly through marriage, then being excluded from marriage directly affects this freedom.
When marriage works as the main way through which the law recognises relationships and gives rights, excluding certain relationships has real consequences. This basic understanding of marriage is necessary before examining whether such exclusion can be justified under the Constitution.
Equality, Dignity and Personal Liberty under Article 14 and 21
Article 14 of the Constitution of India promises equality, but it is never that stable in practice as it is in theory. It is easy to assume that if a law is applicable to all shows fairness in its impact but this assumption breaks down quickly once the law starts shaping real lives. Courts have acknowledged this over time, though often indirectly. A law can treat people alike and still leave some without protection.
In NALSA v. Union of India, the Hon’ble Court held that discrimination against non-normative gender is unlawful. Marriage is one of those areas where this gap becomes visible. It is usually spoken of as social or personal, but legally it does a lot of work. It organises responsibility and it settles uncertainty. It tells institutions who matters. Many rights flows from it without much discussion. Once marriage is recognised, the law tends to follow.
For same-sex couples, that recognition never quite arrives. Their relationships are not illegal. They are not hidden. They can openly show their relationship but with limited rights. There is no clear framework, no automatic recognition. What exists instead is a kind of legal thinness—relationships that are real, but lightly held by the legal system.
Courts have tried to explain why this kind of situation can still raise equality concerns. They have spoken about arbitrariness, about fairness, about the need to look beyond formal categories. But the underlying problem is simpler than the language used to describe it. Exclusion does not always look like denial. Sometimes it looks like omission. Like something the law never quite got around to addressing.
Marriage laws operate in this way. They are built around certain assumptions about relationships and move forward from there. Those who do not fit into that assumption are not pushed away. They are simply left outside. The law stays silent, and that silence carries consequences that only become visible later.
This is often described as a question of substantive equality, though the term itself can feel distant. What it points to is impact. Who can rely on the law when it matters most? Who has to rely on informal arrangements, goodwill, or luck? These differences are not obvious at first. They show up slowly, in moments of vulnerability.
In Maneka Gandhi v. Union of India, the Hon’ble Court held that any law affecting the personal liberty must be just, fair and reasonable. Exclusion from marriage is exclusion from the protection under marriage laws of India which is violative to the personal liberty.
Personal liberty under Article 21 adds another layer. Over time, the Court has tied liberty to dignity, autonomy, and the ability to make meaningful choices about one’s life. Intimate relationships fall within this space. But liberty without legal support can only go so far.
They can choose each other according to themselves as a couple but without legal marital status. That choice, however, does not receive the same legal backing that marriage provides to others. Marriage often acts as the point where private commitment becomes visible to the law. Without it, relationships remain real but legally fragile.
The right to choose a partner has been affirmed repeatedly, but recognition gives that choice stability. Without recognition, relationships are more easily disrupted by illness, death, disputes, or resistance from families and institutions. These are moments when the law intervenes for some and stays distant for others.
Seen together, Articles 14 and 21 do not offer a perfect answer. They pose a question. Do laws really protect the rights of LGBTQ+ persons? or it is just an expression not the implementation. The exclusion of same-sex couples from marital protections keeps the question open. Not loudly, not dramatically but persistently.
Transformative Constitutionalism and the Future of Marriage Laws
India’s marriage laws were framed a long time ago. At that point, same-sex relationships were neither openly discussed nor accepted. They were simply not part of how the law understood relationships. Because of this, marriage was seen in only one traditional way. Even today, most marriage laws continue to follow that same approach. As a result, same-sex couples still remain outside the legal understanding of marriage.
With time same sex relationship are not being treated as unlawful due sone changes in laws and restriction on the same are also being reduced with time. But these changes have not reached the Indian marital laws. Marriage has remained untouched. This creates a clear gap in the legal framework. Relationships may be accepted, but the legal recognition that comes with marriage is still missing. This gap is not just theoretical. It affects real situations in everyday life.
The idea of transformative constitutionalism helps explain why this gap matters. In simple terms, it means that the Constitution is meant to guide society forward. It is not meant to stay fixed to old ideas forever. It is important that laws should also evolve when the social realities change as it is the Constitutional principal to address exclusion and protection of rights of those people who are being ignored for a long time.
In present LGBTQ+ couples are given all the rights but not with the marital protection and rights that are available to married couples in India. This affects their personal choice and dignity which is unconstitutional according to Article 21 of the Constitution.
These are not unusual problems. They are part of daily life for many couples. The absence of marriage recognition makes these situations uncertain and difficult. Looking ahead, this is clearly an area that needs further attention.
The government has the authority to review and update marriage laws when required. Courts can also continue to interpret existing laws in a manner that respects dignity and personal freedom. The purpose here is not to blame any institution, but to acknowledge that the law is still developing.
Transformative constitutionalism supports gradual and careful change. Allows the law to grow and change step by step. In future the marriage laws shall be more inclusive so that they can protect the rights of those people which are being restricted for now from the protection of marriage laws.
Recommendations
Marriage laws in India have not changed much over time. Even in today’s world many legal and social right are totally dependent on marriage and being restricted form marriage is directly connected to missing out those legal and social rights. Thus, there is an urgent need for new laws and policy to be formed for protection of these rights. Reform does not mean changing everything at once. It can start by checking how current marriage laws affect people in daily life. Small and careful changes can help make the law fairer and more practical for everyone.
Till new laws are made, interpretation of existing laws becomes important. Marriage laws should be read in a way that supports equality, dignity, and personal freedom. This does not mean stretching the law too far. It only means avoiding very narrow readings that exclude certain relationships. When laws are interpreted with present social realities in mind, they work better and feel more just.
Equality in marriage cannot come from one side alone. The legislature has the power to make changes in marriage laws. Courts also have a role in applying laws fairly. Change in this area will take time. A slow and balanced approach by both the legislature and the judiciary can help improve the situation without creating confusion. Step by step, this can move the law closer to equality.
Conclusion
When people talk about same-sex marriage in India, the conversation usually goes back to a few simple ideas. These are equality, dignity, and the freedom to live life in one’s own way. Over time, the law has started to recognise LGBTQ+ persons and has accepted that identity and personal choice matter. This has been an important change. But the marriage laws in India are not accepting the same and there is no visible change in them, due to which same-sex couples are still being shut out of marriage which is denial of dignity.
Marriage is not only about customs or social approval. It also gives legal safety. When marriage is not available, it affects everyday life. Things like security, stability, and clarity in relationships become uncertain. This shows that even though constitutional thinking has moved forward over the years, marriage laws have remained mostly the same.
This article has looked at the issue in a simple and practical way. It shows how the law works actually in daily life by not questioning the intentions of any legislation or the courts. Instead, it points out the gap between constitutional values and the present legal position.
Addressing same-sex marriage does not mean throwing away existing laws. It only means looking at them again, keeping today’s social reality in mind.
As society changes, the law also needs to change, but slowly and carefully and to make an inclusive marriage system there is a need for changes in current marital Indian laws.
Bibliography
Constitutional & Statutory Sources
The Constitution of India, 1950.
The Transgender Persons (Protection of Rights) Act, 2019.
The Transgender Persons (Protection of Rights) Rules, 2020.
Judicial Decisions
Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1.
Lata Singh v. State of Uttar Pradesh, (2006) 5 SCC 475.
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
NALSA v. Union of India, (2014) 5 SCC 438.
Navtej Singh Johar v. Union of India, (2018) 16 SCC 368.
Supriyo v. Union of India, AIR 2023 SC 5283.
Books
Indian Constitutional Law, by M.P. Jain, 8th Edition, 2019.
Sexuality and the Law, by Lawrence Liang, 1st Edition, 2008.
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