Authored By: Ashima Bawa
Punjabi University, Patiala
ABSTRACT
Same sex marriage means the marriage between two persons of same sex. Some countries legally recognise same sex marriages and some countries do not. There is a long debate over the constitutional recognition of same sex marriage in India. Same Sex marriage is also widely debated religiously. Constitutional recognition of same sex marriages are considered against the religious beliefs of many communities. Various rights of third gender community was recognised by Indian courts in their judgements, but the recognition of same sex marriage always remain unsolved. In Supriyo @ Supriya Chakraborty v Union of India(2023) the constitutional validity of non recognition is challenged. This article examine the constitutional and legislative position of same sex marriages and analysis of Supriya case judgement in the light of questions that whether same sex marriages are constitutional right or Legislative choice.
KEYWORDS: Same-sex marriage LGBTQ+ community, Third gender community, Privacy, Equity, Dignity, Special Marriage Act
INTRODUCTION
Netherlands was the first’ country in the world to legalize same–sex marriage in 2001. As of now almost 38 – 39 countries legally recognise same sex marriages. In India, The question whether same sex couples have a Constitutional Right to marry represents one of the most significant contemporary debate regarding autonomy, equality and dignity. Marriage is not merely a private relationship between two individuals. It provides numerous rights regarding inheritance, succession, adoption, taxation, maintenance etc.
LGBTQ+ community has persistently fought for legal recognition of their rights. From a long time the third gender community have faced several discrimination based on their sexuality. Several landmark judgements of supreme court such as National Legal Service Authority v Union of India (2014), Justice K.S. Puttaswamy v Union of India (2017), Navtez Singh Johar v Union of India (2018) have provided various rights to LGBTQ+ with regards to privacy, autonomy, equality and dignity. Still there is no recognition of same sex marriage and no right is given to such community to perform a legal wedding. This article will examine the constitutional and legislative aspect of same sex marriage and supreme court’s judgement in Supriyo @ Supriya Chakraborty v Union of India (2023) by presenting arguments in favour of recognition and arguments against recognition.
CONSTITUTIONAL FRAMEWORK
Part 3rd of the Constitution of India contain Fundamental rights given to the citizens of India. Article 14 provides Equality before law and Equal protection of law, Article 15 prohibits discrimination on specified grounds including sex, Article 21 provides right to life and personal liberty which is the core article to support the privacy, equality, autonomy and dignity of a person.
Not allowing same sex marriage goes against the provision of Constitution. It can be considered as violation of Article 14,15 and 21 by not providing equality to LGBTQ+ community, discriminating them on the basis of sexuality and not granting them the right to choose their partner. There have been many such cases in recent times in which the court has put third gender rights forward.
National Legal Service Authority v Union of India (2014) 5 SCC 438
The supreme court of India formally recognised transgender individuals as ‘third gender’. It recognised the Right to self identify one’s gender. Declaring that gender’ identity is an integral aspect of personal liberty, autonomy and dignity under article 21 of constitution.
Justice K.S. Puttaswamy v Union of India (2017) 10 SCC 1
A unanimous nine-judge bench of Supreme Court held that Right to privacy is a fundamental right protected under Article 21 of Indian constitution.
Navtez Singh Johar v Union of India (2018) 10 SCC 1
Five judge bench of Supreme Court of India unanimously struck down section 377 of The Indian Penal Code 1860 which criminalise consensual sexual relations between adults of same sex. It held that section 377 violate article 14, 15 and 21.
Besides the rights given to third gender community , same sex marriage continues to be legally unrecognized . There is lack of Constitutional recognition of same sex marriages.
LEGISLATIVE FRAMEWORK
India does not have one uniform marriage law for all citizens rather marriage is governed by various personal laws such as –
Hindu Marriage Act, 1955
Special Marriage Act, 1954
Muslim Personal Laws
Indian Christian Marriage Act,1872
Parsi Marriage And Divorce Act, 1936
These legislations are concerned with personal laws on the basis of religion and recognise marriage between opposite sex , the statutes do not cover or recognise the concept of same sex marriage. India does not have any central legislation that expressly recognise same sex marriage. The Special Marriage Act, 1954 provides a secular framework for marriage irrespective of religion, Same sex couples have argued that the provision under section 4(c) of the Act that uses the expression male and female should be interpreted in a manner which would made the Act as gender- neutral so that two persons of same sex could marry under the Act.
@SUPRIYO JUDGEMENT – THE TURNING POINT
The central question arises in this case is whether marriage equality is a constitutional right or merely a Legislative choice.
Supriyo @ Supriya Chakraborty v Union of India [2023] SCC OnLine SC 1348
The case arose from series of writ petitions filed by same sex couples, they challenged the validity of section 4(c) of Special Marriage Act, 1954 and argued that non recognition of same sex marriages violated their fundamental rights under Article 14,15,19 and 21 of the constitution. They also sought recognition of various legal benefits arising from marriage.
The constitutional bench unanimously held that Right to Marry is not a fundamental right under constitution and declined to judicially extend the provisions of Special Marriage Act to same sex couples. The court make a distinction between right to enter into a relationship and right to obtain legal recognition of marriage. It ruled that marriage is a statutory right primarily governed by the enactments made by Parliament and State Legislature.
Thus the court affirmed the right to privacy, autonomy, equality and dignity of same sex couples but the matter of constitutional recognition of same sex marriages remains unsolved. The decision given in this case shows that power to extend or create marriage rights are a legislative matter, interference by judiciary will amounts to judicial legislation.
ARGUMENTS IN FAVOUR OF CONSTITUTIONAL RECOGNITION
Several arguments can be presented in favour of constitutional recognition of same sex marriages such as
Firstly, Our constitution provide right to equality to every citizen under article 14, denial of marriage rights to LGBTQ+ community can goes against the principal of equality.
Secondly, Discriminations made on the basis of sexuality goes against the core of article 15.
Thirdly, In Shafin Jahan v Asokan K.M.(2018) the court provide Right to choose partner of once choice. Such right shall also be provided to third gender community without any discrimination.
Fourthly, Marriage is more than a social institution. It provides certain rights such as inheritance, maintenance, succession, adoption etc. denial of marriage rights to third gender community would amounts to denial of such rights also.
ARGUMENTS AGAINST CONSTITUTIONAL RECOGNITION
Several arguments can be presented against the constitutional recognition of same sex marriages –
Firstly, most of the religions believe that marriage is a divine union between two persons of opposite sex i.e. male and female. Recognising same sex marriages can go against religious or cultural beliefs.
Secondly, to enact a law is the power granted to the legislature intervention by the judiciary will amounts to judicial legislation which goes against principle of separation of powers.
Thirdly, our Constitution does not expressly provide Right to marry as an fundamental right. Framing statutes regarding marital rights is a legislative action.
Fourthly, transforming the existing frameworks into gender neutral forms require a complex structure and alterations at large level.
KEY RECOMMENDATIONS
With changing times, the mind-set towards third genders should also have to change. The legislature or judiciary have to take liberal approach while dealing with the rights of third gender. Here are some key recommendations-
As the Supriyo judgement held that legal recognition of marriage is matter of enacted law , the legislature have to take initiative.
Effective and stronger anti – discrimination measures should be introduced to protect the rights of LGBTQ+ community.
Separate adoption laws should be made containing provisions or rules for adoption by same sex couples.
Awareness campaigns must be run to make people aware about rights of LGBTQ+ community.
As our constitution provides equality, equality must be in the true sense without discrimination on the basis of gender.
CONCLUSION
The LGBTQ+ community has been facing a lot of discrimination from a longer period. They have to fight for their rights and they have to endure a lot because of their sexuality. A lot of changes have been seen over the last 15 years , the judicial pronouncements demonstrate a significant shift from exclusion towards equality, dignity and autonomy .The judgements given in NALSA, Puttaswamy and Navtez Singh Johar case established certain principles which protects the rights, privacy, dignity and autonomy of third gender community. But still there is no constitutional recognition given to same sex marriages.
As the judgement given in Supriya Chakraborty case refuse to consider right to marry as an fundamental right and the court denied to interpret the Special Marriage Act in a gender neutral manner it left the third gender community without any legal right to marry and make them unable to enjoy the marital rights which are given to opposite sex couples. The court left the power to grant marriage rights to the legislature. Thus making same sex marriages not as constitutional recognized right but merely as a legislative choice.
The legislature should play an active role in empowering the third gender community. The civil society, Legislature and judiciary have to co–ordinate their activities to protect the right of privacy, autonomy, equality and dignity of LGBTQ+ community and consider them as member of society. Judiciary leaves same sex marriage recognition issue unresolved, but it requires undivided attention to stop discrimination on the basis of gender or sexuality. Despite many difficulties, it seems that the third gender community will surely get their rights in near future.
REFERENCE(S):
Cases
National Legal Service Authority v Union of India (2014) 5 SCC 438
Justice K.S. Puttaswamy v Union of India (2017) 10 SCC 1
Navtez Singh Johar v Union of India ( 2018) 10 SCC 1
Supriyo @ Supriya Chakraborty v Union of India [2023] SCC OnLine SC 1348
Legislation
Constitution of India, 1950
Special Marriage Act, 1954
Secondary sources
Kailash G S and Hariprasath TGK, ‘Constitutional Validity of Same-Sex Marriage in India’ (2023) 5(2) Indian Journal of Law and Legal Research https://www.ijllr.com/post/constitutional-validity-of-same-sex-marriage-in-india accessed 6 September 2026
Unnikrishnan V and Dalvia M, ‘Legal Status of Same Sex – Marriages in India’ (2024) 2(7) International Journal for Legal Research and Analysis 13 https://www.ijlra.com/details/legal-status-of-same-sex-–-marriages-in-india-by-vandhana-unnikrishnan-mary-dalvia accessed 6 September 2026
Rawat A, ‘Navigating the Path to Equality: The Landmark Case of Supriyo v. Union of India and the Future of LGBTQIA+ Rights’ (Manupatra Articles, 2 July 2024) https://articles.manupatra.com/article-details/NAVIGATING-THE-PATH-TO-EQUALITY-THE-LANDMARK-CASE-OF-SUPRIYO-V-UNION-OF-INDIA-AND-THE-FUTURE-OF-LGBTQIA_Plus_-RIGHTS accessed 6 September 2026
