In India, the petitions filed for recognition of same-sex marriage are connected with the HMA [Hindu Marriage Act], SMA [Special Marriage Act], and FMA [Foreign Marriage Act]. In India, marriage laws are governed by various personal laws based on the religion of the individuals getting married as there is no uniform civil code.
For example, Hindu marriages are governed by the Hindu Marriage 1955 Act, while Muslim marriages are regularized by the Shariat or Muslim Personal Law Application Act, of 1937. There is also a special act that is made for inter-religion or inter-caste marriage and it is also applicable to citizens of India and all Indian nationals in foreign countries.
The debate for same-sex relationship recognition, if perceived from the existing marriage laws means a violation of fundamental rights.
Petitions filed for same-sex marriage recognition
Under Hindu Marriage Act
In 2020, Abhijit Iyer-Mitra filed in Delhi High Court a petition seeking same-sex marriage recognition in India. Arguments Iyer-Mitra made were based on the HMA, which doesn’t differentiate between homosexual and heterosexual marriages. HMA says ‘any two Hindus’ are required for a marriage. In section 5 of HMA –‘A marriage is sanctified between any two Hindus…….’
The petition copy even argues that SMA also does not forbid same-sex marriage. It further claims that same-sex marriage non-recognition is a violation of the Constitution of India including – Article 14 [Right to Equality], Article 25 [Freedom of Religion], and Article 21 [Right to Life].
The petition even contends that same-sex marriage non-recognition is against the 2018 Supreme Court judgment in the Navtej Singh Johar versus Union of India that decriminalized homosexuality as well as the 2017 verdict of protecting the Right of Privacy in the Retd versus Union of India.
The petition seeks same-sex marriage recognition under existing HMA and is not looking for special marriage law for the LGBTQ community.
Under Special Marriage Act
Two petitions looking for same-sex recognition under SMA are filed in Indian Supreme Court. Other pleas are also filed in Delhi High Court. The reasoning is the same as Iyer-Mitra’s petition concerning HMA. It is emphasized by legal experts that the wordings of SMA are more generous than HMA.
According to section 4 of SMA, a marriage can be solemnized between any 2 persons under this act’. In its subsection, there is no mention of ‘husband’ or ‘wife’. In section 4, ‘the completed age of male is 21 and female is 18 years. The subsection doesn’t define clearly that this eligibility is for a man to marry a woman. It is claimed to perceive as a gender-neutral provision.
Section 12 in SMA lays the criteria for marriage solemnizing. It says ‘each party’ has to say ‘I —– [first party] take the —— [second party] to be my lawful ——-[husband/wife] before the marriage officer and 3 witnesses in any language the involved parties understand. Husband and wife is a term mentioned but does not clearly specify the gender. This interpretation is a theoretical approach for same-sex marriage under SMA, but the Indian State or Supreme Court has not revealed any interest.
There have been times when Judiciary liberally interprets a statute when an anticipated resolution is not served or there is a doubt. For example, according to Dormaan Dalal [Mumbai-based advocate] the word ‘consultation’ was interpreted as ‘concurrence’ during the appointment of judges [By Supreme Court]. Dalal says that the SMA is suitable for same-sex marriage recognition as it is a secular law, which is not associated with any religion. SMA can be compared to foreign countries’ laws governing civil unions.
Is same-sex marriage non-recognition violating fundamental rights?
Same-sex couples have already started to knock on constitutional courts with a petition for same-sex marriage recognition. The state will not deny anyone’s equality before law rights, according to Article 14 but it is a negative concept because it withholds the state from discriminating against people.
Homosexual marriage barring fails to cross the legal threshold because there is no understandable citing to support it. Even if the SC judgment in the Navtej Johar case was to decriminalize homosexuality, the state cannot discriminate between homosexual and heterosexual marriage and portray same-sex marriage to be illegal.
Article 15 says that State will not discriminate against any civilian based on race, religion, crew, sex, caste, or place of birth. Here ‘gender’ is not used. Now, ‘sex’ and ‘gender’ are both different concepts. Sex is the medical and biological notion, while gender is one’s sense of feeling.
In the historic NALSA versus Union of India judgment, the SC clearly said that the ‘sex’ term includes ‘gender’. The current legal stance prohibits homosexual marriage based on gender, so is a clear Article 15 violation.
Article 19 describes freedom of expression including self-identified gender. The NALSA verdict by SC supports the transgender fundamental rights of privacy, autonomy, self-identity, and personal integrity. The State has to protect as well as recognize their rights. A limitation to self-identified gender expression is a breach of the right to expression.
Article 21 speaks about the right to life & dignity. The importance of the right to liberty was pronounced by the SC in Francis Coralie Mullin versus Union Territory of Delhi in 1981. The right to dignity seeks to ensure people’s development and growth via expressing oneself in multiple forms, moving around freely, and mingling with colleagues. Marriage is a social event that allows co-mingling and socializing with your colleagues. So, homosexual marriage barring can be a Right of Dignity violation based on gender identity.
Article 21 even protects personal autonomy. It means marriages fall under individuals’ rights to take their personal decision including same-sex marriage. The SC verdict for the Shafin Jahan VS Asokan K.M. & Ors established the right to select a marital partner, which is a part of the right to privacy.
Provisions that support same-sex marriage recognition
Same-sex marriage is not currently legal in India. In 2013, the Indian Supreme Court upheld Section 377 of the Indian Penal Code, a colonial-era law that criminalizes homosexuality. However, in 2018, the Supreme Court overturned the 2013 ruling and decriminalized homosexuality. Despite this, same-sex marriage remains illegal in India.
There have been some cases in India where the courts have recognized the rights of same-sex couples, such as in the case of Naz Foundation v. Government of NCT of Delhi, where the Delhi High Court recognized the rights of LGBT individuals and called for the repeal of Section 377. However, these cases have not specifically addressed the issue of same-sex marriage.
Recognizing same-sex marriages in India is going to be a more massive challenge than decriminalizing homosexuality. However, a constitutional case can be built for marriage equality amongst the same genders with constitutional provisions.
- Articles 14 & 15 – It prohibits sex discrimination based on sexual orientation and gender identity citing the verdict of NLASA versus Union of India in 2014, where a third gender was recognized. The Shafin Jahan ruling aid that partner choice outside or within marriage is autonomy and private. So, the Supreme Court’s reasoning for same-sex matters is not impermeable.
- Article 19 – Self-identification of gender is protected under Article 19’s right to free speech & expression. In 2018, the Indian Supreme Court struck down Section 377 of the Indian Penal Code, a colonial-era law that criminalized homosexuality. The court found that the law violated the constitutional rights to equality, freedom, and privacy of LGBTQ individuals.
- Article 21 – Imposing isolation by denying same-sex marital rights is a violation of the Right to Life with dignity according to citation Kharak Singh versus State of UP verdict. In India marriage is a socially acceptable intimate relationship. If a law forbids marriage to a preferred partner and forces to choose to live secretly and in isolation with a fear of getting exposed is not a dignified way of living. Therefore marriage must not be defined as matrimony between a man and a woman because it is a violation the Article 21’s right to life with dignity.
What is the legal status regarding same-gender marriage in India now?
As marriage is governed by diverse laws customized by the religious groups of India referring marriage is only possible between a man and a woman. However, across the last decade, the LGBTQ community’s legal rights are expanding. All the cases involving same-sex affairs are handled by the Indian Supreme Court. Some Indian Judiciary rulings added to the rights for same-sex affairs.
- In the NLASA versus Union of India in 2014, a third gender was recognized. The verdict was to protect non-binary individuals under India’s Constitutional rights like non-discrimination, equality, freedom of speech, and more. This legal recognition of transgender laid the groundwork.
- In 2017, the right to privacy and sexual orientation recognition strengthened the groundwork.
- In 2018, Navtej Singh Johar VS Union of India verdict of homosexuality decriminalization and expanded constitutional rights scope to the LGBTQ community also built hope.
- In 2019, the Madras High Court ruled that marriage celebrated between a Hindu transwoman and a Hindu male is valid under HMA 1955. It can be legally registered in the Marriage Registrar. The transwomen were identified as women and interpreted consciously as a bride under HMA. The verdict extended the term usage scope in HMA and set the stage for getting same-sex marriage recognition in the future.
- Last year, protection for ‘atypical families’ was instituted by the court. The atypical families category is extensive. For example, single, joint families, kinship relationships, or same-sex couples. The court said that non-traditional or unusual families have a right to enjoy the benefits from different social welfare legislation.
What’s Indian Government’s stand
The current Union Government has opposed same-sex marriages because it was argued during Iyer-Mitra petition proceedings that any intervention regarding heteronormative marriage can cause chaos. In Delhi High Court, the Union Government remarked that same-gender marriages are neither accepted nor recognized in any codified statutory or personal laws. It even said that according to the 1954 SMA, marriage was permissible between a ‘biological female’ and a ‘biological male’.
The government even sheds misconceptions regarding the Navtej Singh Johar versus Union of India verdict. The judgment only decriminalizes homosexuality but doesn’t talk about marriages.
The Supreme Court gave the Union Government time to respond regarding the pending petitions concerning same-sex marriage under HMA and SMA. Supreme Court’s action triggered spiteful remarks from the parliamentarians. A parliament member claimed that two SC judges cannot give verdicts on same-sex marriage issues because Indian society is unprepared to accept it. The demands made by such petitions are not appropriate to Indian culture. There have also been protests outside the Supreme Court claiming homosexuality to be against Indian values.
What’s the prominent religious group’s opinion
Even if the most popular religious group leaders in India don’t support LGBTQ rights there has been a gradual shift in how religious leaders respond [majority of Hindus is 80%].
In 2018, the RSS, a leading Hindu—nationalist group agreed with the SC verdict of decriminalizing homosexuality, but maintained a perception about same-gender relationship is unnatural and undesirable. However, now the group’s head supported LGBTQ community rights saying that they have been there always as a part of society. However, he never advocates same-sex marriages.
A non-governmental AIMPLB works in protecting and propagating Muslim laws that oppose same-gender relationships and terms it immoral [15% of Muslims in India]. Christian groups are small in India. They were against homosexuality legalization in 2018. According to them, same-gender marriages can turn into social experimentations with erratic results.
Is there hope for the LGBTQ community……?
With the evidence and citing’s, there is a hope for same-sex marriage to gain recognition based on the right to equality, the right to freedom in having a heterosexual relationship, and even deserve legitimacy like homosexual couples.
An ideal solution is to amend existing laws or introduce new ones, but this can cause chaos because personal marriage laws are being used for decades and are considered to be a tradition and custom.
So, the chances to interfere in the religious-based HMA, it is possible to make changes in 1954’s Special Marriage Act. It was enacted as secular marriage law that can be adjusted to remove heterosexual marriage character and make it inclusive to all sexual orientations and gender identities.
Unfortunately, the determination of the current government to preserve marriage institutions in India is clear. The LGBTQ people can choose to establish a civil partnership system, which grants same-sex couples legal protection just like heterosexual couples.