Abstract
This research paper dives into the constitutional, legislative and social dimensions of same-sex marriage in India, focusing on the ongoing struggle for conjugal rights for queer couples. Though the decriminalisation of homosexuality in the landmark Navtej Singh Johar v. Union of India (2018) decision was a significant step toward equality, the absence of legal recognition for same-sex marriages continues to perpetuate discrimination. This denial of recognition not only affects same-sex couples’ status in society but also impacts their necessary rights like adoption, inheritance, taxation benefits, etc. By assessing legislative and constitutional provisions, and international human rights perspectives, this research paper offers an in-depth assessment of the implications of the 2023 Supreme Court verdict, which even though held back from granting marriage rights to same-sex couples, acknowledged the need for legislative intervention. It further explores the dynamic discourse on LGBTQ+ rights in India, the role of societal attitudes, and the possible legal reforms required to ensure marriage equality. Through a multidisciplinary approach, the paper highlights the challenges same-sex couples face while proposing legal and policy recommendations to bridge the gap between constitutional principles and social realities.
Keywords: Same-Sex Marriage, Conjugal Rights, LGBTQ+ Rights, India, Legal Recognition
Introduction
The legal recognition of same-sex marriage has become a central issue in the debate around LGBTQ+ rights in India. Even though the Supreme Court’s historic ruling in *Navtej Singh Johar v. Union of India* (2018) removed the criminalization of consensual same-sex activities, the judgment did not touch upon the broader range of rights that accompany marriage, including inheritance, adoption, taxation, social security, and spousal benefits. Discrimination towards the LGBTQ+ community persists, likely due to the lack of legal recognition for same-sex marriages withholding individuals from their marital rights. Historically, there have been many references to same-sex relations and transgender persons in the various kingdoms in India. The Vedic times and Hindu scriptures, art and architecture reflects the idea of gender fluidity.
Marriage, apart from being a social and religious institution, is also a legal construct that grants necessary rights to couples. The non-legalisation of homosexual marriage significantly restricts LGBTQ+ individuals from these fundamental legal frameworks, which in turn perpetuates systemic inequalities. One of the most alarming issues rooted in the denial of marital rights is the refusal of property and inheritance rights.
Indian personal laws generally make inheritance heteronormative, giving preference to legally wedded heterosexual spouses. Same-sex couples, lacking legal recognition, frequently cannot inherit property, pensions, or assets of their deceased partners, which creates economic insecurity and court cases. Equally, adoption laws are still closed to same-sex couples since current policy mainly presumes a heteronormative family setup. The denial of marriage recognition and conjugal rights also restricts fair access to healthcare and insurance coverage. Married spouses are granted the right to make medical choices on behalf of their spouses, claim health insurance benefits, and have other social security protections.
LGBTQ+ couples are often excluded from such rights and are left dependent on informal measures that are not always legally valid. This, again excludes LGBTQ+ individuals from the fundamental and legal protection available to other heterosexual couples.
Aside from legal obstacles, social stigma continues to be a strong obstacle for marriage equality. Though the recognition and acceptance towards the LGBTQ+ community is on the rise, society remains resistant towards granting marital rights to such couples. Most LGBTQ+ individuals are often subjected to familial pressures along with societal discouragement toward queer relationships, which usually results in social isolation. The paucity of legal recognition not only stigmatises but also denies LGBTQ+ individuals the dignity and affirmation marriage brings. This study discusses several complex challenges, considering judicial precedents, constitutional protections, and global standards upholding marriage equality. It also analyses the possible legislative and social reforms that can form the ground for recognising same-sex marriage in India and granting equal rights to queer couples, providing them complete inclusion in the country’s legal and social order, while honouring the basic principles of article 14 of the constitution.
Research Methodology
This study uses a doctrinal research methodology, analysing primary and secondary legal sources, including statutes, case laws, scholarly articles, and reports. This paper is descriptive and the research is based on secondary sources for the in-depth analysis of the conjugal rights offered to homosexual couples, and other marital prospects for the same. Secondary sources of information like newspapers, journals, and websites are used for the research.
Review of Literature
The discussion on same-sex marriage in India has been re-enforced by various academic contributions. Certain personal laws, such as the Hindu Marriage Act, do not explicitly or implicitly prohibit same-sex marriages, suggesting potential areas of change and legal reforms. The Supreme Court’s 2023 verdict, which declined to legalise same-sex marriage, has been critiqued for leaving the matter to the legislature, thereby prolonging the denial of conjugal rights to same-sex couples. These works collectively underscore the legal ambiguities and societal challenges impeding marriage equality in India.
Legal and Constitutional Analysis
- Constitutional Rights and Judicial Interpretations
The Indian Constitution guarantees the right to equality as a fundamental right. In Navtej Singh Johar v. Union of India, the Supreme Court recognised the rights of LGBTQ+ individuals to dignity and privacy. However, in Supriyo v. Union of India, the Court did not extend these rights to marriage, citing the limited jurisdiction of the judiciary, as the issue belonged to the parliament for deliberation. The judgement was seen as a major setback by the LGBTQ+ community. - Statutory Analysis
The Hindu Marriage Act uses gender-neutral terms like “any two Hindus,” which can easily be used to interpreted to include same-sex couples. However, traditional interpretations have confined its application to heterosexual unions. The Special Marriage Act made for civil marriages irrespective of religion, also does not prohibit same-sex marriages but has been traditionally applied to heteronormative couples. - Comparative Legal Perspectives
Multiple legislations worldwide have accepted and recognised same-sex marriage lik the United States, Canada, and the United Kingdom. Legal frameworks in these countries have been amended to grant LGBTQ+ individuals full marital rights like adoption, inheritance, insurance and succession. These jurisdictions suggest that legal recognition of same-sex marriage leads to greater societal acceptance and legal security for LGBTQ+ individuals. - Social and Political Developments
In contrary to the legal setbacks, there have been positive social and political movements. In 2024, opposition parties appointed LGBTQ+ activists to key positions, signaling a greater shift toward inclusivity. Moreover, the government’s efforts to seek public opinion on inclusive policies indicate a growing acknowledgment of LGBTQ+ rights. Despite legal setbacks, there have been significant positive developments in the social and political landscape regarding LGBTQ+ rights. In 2024, opposition parties took a progressive step by appointing LGBTQ+ activists to key political positions.
Global Scenario
Multiple countries across the world have granted homosexual couples the right to marry and conjugal rights. While every country has had its own timeline of events when it comes to acceptance of homosexuality, both in social and legal terms, the granting of conjugal rights has always been a significant step towards modernism while recognising the rights of homosexual couples and treating them with dignity.
Countries like the USA, UK, and Australia have granted conjugal rights to same-sex couples, allowing them to adopt children together, inherit each other’s property, claim life insurances for spousal support etc. It is to be noted that the issue of adoption and parenting in general has been a point of contention when it comes to the question of LGBTQ+ rights. The Central Adoption Resource Authority’s requirements are part of the JJ Act (Juvenile Justice Act), 2015, which gives everyone, regardless of religion, the capacity to adopt. No child shall be placed in adoption to a couple unless they have at least two years of a solid marital unity, according to a requirement in the law. Same-sex couples are unable to demonstrate two years of marital stability in India because marriages between the same sexes are not yet recognised in that country. Resultantly, such couples are unable to raise children through adoption.
Countries like Finland, Austria, Canada, Norway, Croatia, Argentina etc have permitted joint adoption of children by homosexual couples, giving them a chance to experience parenthood.
Current Legal Landscape of LGBTQ+ Rights in India
In recent years, India has taken significant steps towards recognising LGBTQ+ rights. On September 6th, 2018 a five-judge Bench unanimously struck down Section 377 of the Indian Penal Code, decriminalising homosexuality, which was a watershed moment, affirming the fundamental rights of LGBTQ+ individuals. However, the path to complete legal equality, including the recognition of queer marriage, remains complex.
Currently, the legal framework surrounding marriage in India is based on religion, such as the Hindu Marriage Act and the Special Marriage Act. While the latter allows for civil unions outside of religious customs, it does not explicitly recognise or deny same-sex marriages. However, this act can serve as a potential pathway for queer couples seeking legal recognition of marriage. If the Special Marriage Act were interpreted or amended to include same-sex couples, it could provide a framework for their legal unions, granting them access to essential rights and privileges. The central government has been arguing against the legal recognition of same-sex marriages in the country, citing the age-old customs, traditions, and religious norms of the society; however, a survey by the Pew Research Center Spring 2023 Global Attitudes Survey has found that nearly 53% of Indians surveyed are accepting of legalising same-sex marriages. Denying the legal recognition of marriage to queer couples not only violates their Right to Equality under article 14 of the Indian constitution, as beforementioned, it also violates their rights under article 21 of the constitution; The right to marry is an integral aspect of personal liberty and dignity.
Over the years, the LGBTQ+ movement has seen a rise in popularity and acceptance among the Indian masses, yet queer couples struggle to gain respect and acceptance in society.
In the evolving landscape of social justice and human rights, a crucial aspect of equality and human dignity is represented by the recognition and affirmation of conjugal rights for same-sex couples. The courts have time and again cited this article while ruling in favor of contentious issues like inter-faith and inter-caste marriages, and ordered the police and other rights organisations to give them protection whenever they feel or are threatened by parents or society, noting that “all adults have the right to marry a person of their choice.” Conjugal rights, which encompass the legal and societal acknowledgment of a couple’s union and its associated benefits, are fundamental to ensuring that all individuals are treated equally and respectfully. In India, since same-sex marriages are not legalised, queer couples cannot enjoy the benefits and privileges of conjugal rights like inheritance of property, adoption, maintenance, etc. It is imperative to note that denying queer couples legal recognition of marriage and conjugal rights perpetuates not only social inequality but also the marginalisation of such persons.
It is important to remember that marriage is not just a legal contract but also a social institution that carries important cultural and social values. By excluding queer couples from this institution, we as a society implicitly marginalise and invalidate their relationships. With this exclusion, it’s not just the couples and their families that are affected, but also, it fosters an environment of stigma and exclusion. Inclusivity is crucial for social cohesion and progress in a pluralistic society like India. Granting conjugal rights to same-sex couples would promote social justice by recognizing and valuing their relationships at par with heterosexual social unions. This recognition may help towards a broader societal acceptance and reduce prejudices, paving the way for a more inclusive and equitable society.
Depriving queer couples of conjugal rights not just affects their stature in society, making them feel unimportant, but also affects their mental and emotional vulnerability while also affecting their financial status. A queer couple adopting a child not just brings joy to the couple, but it also provides the child with a family or in case of the death of one partner, without conjugal rights, the other partner will not be able to inherit their assets or property, potentially leaving them in a financially difficult situation. By providing queer couples with conjugal rights, it can be ensured that they live joyous and comfortable lives, without struggling for maintenance, finances, inheritance etc. Acknowledging and legitimising same-sex relationships through conjugal rights fosters a sense of belonging and validation for such couples, supporting their mental health and well-being. From property and inheritance rights to being able to adopt children, providing conjugal rights to same-sex couples will help them gain an equal status in society, fostering a sense of acceptance and validation for the couples
Challenges Faced by Same-Sex Couples
- Denial of Legal Rights – Homosexual couples, for the longest time have been denied necessary rights that can improve their quality of life. Basic subjects like property and insurance are still not granted to homosexual couples.
- Social Stigma – LGBTQ+ individuals continue to face severe societal discrimination, making it difficult for same-sex couples to live their lives openly. Over the years, while society has accepted the concept of homosexuality, a large part of it still resists reforms for the betterment of the LGBTQ+ community, citing the traditional basis of Indian society.
- Lack of Political Will – The lack of recognition of same-sex couples as families is often seen as an exclusion from the sphere of civil legitimacy and as a way of foreclosing the possibility of political action in the Arendtian sense. While political leaders across the country have recognised the need for reforms in marriage laws and the need for the inclusion of same-sex couples in various legislations, the fear of losing out on votes bars them from making any changes to the present laws.
- Judicial Limitations – While the Indian judiciary has decriminalised homosexuality, marriages for same-sex couples, while not illegal, have not been legalised under the Indian law, limiting the prospect of conjugal rights.
Suggestions for Reform
- Legislative Reforms – Existing marriage laws should be amended to explicitly recognize same-sex marriages, ensuring equal access to all marital rights and benefits. This would involve revising family law statutes to use gender-neutral language, thereby eliminating legal barriers that exclude same-sex couples. Additionally, legislative changes should guarantee equal rights in adoption, inheritance, taxation, healthcare, and spousal benefits, ensuring that same-sex couples receive the same legal protections as heterosexual couples. Anti-discrimination provisions should also be introduced to prevent service providers from denying marriage-related services based on sexual orientation.
- Judicial Activism – The judiciary plays a crucial role in shaping the legal landscape of marriage equality. Courts should adopt progressive interpretations of existing laws, aligning them with constitutional principles of equality, liberty, and non-discrimination. By referencing international legal precedents and human rights frameworks, judges can strengthen the legal foundation for same-sex marriage rights. Additionally, judicial activism can help broaden the interpretation of constitutional guarantees, such as dignity and personal autonomy, to include the right to marry regardless of gender. Courts should also ensure that same-sex couples have access to legal remedies when facing discrimination or denial of rights.
- Public Awareness Campaigns – Changing societal attitudes is essential for the successful implementation of marriage equality reforms. Government agencies, civil society organizations, and educational institutions should collaborate to launch public awareness campaigns aimed at dispelling myths and prejudices about same-sex relationships. These campaigns should include educational programs in schools, media initiatives that promote positive representations of LGBTQ+ individuals, and community engagement efforts to foster understanding and acceptance. By increasing awareness and empathy, these initiatives can help create a more inclusive society that supports equal marriage rights.
- Policy Initiatives – While legislative and judicial reforms take time, interim policies should be introduced to provide immediate relief to same-sex couples. Governments can recognize civil unions or domestic partnerships as a temporary measure until full marriage equality is achieved. These legal arrangements can grant same-sex couples essential rights such as joint property ownership, medical decision-making authority, and social security benefits. Additionally, workplace policies should be updated to ensure that same-sex partners receive equal employee benefits, including healthcare and parental leave. Implementing these policy initiatives will help bridge the gap until marriage laws are fully reformed.
Conclusion
The quest for conjugal rights by same-sex couples in India is a complex and multifaceted issue that intersects legal, social, and political dimensions. While there have been significant advancements in recognizing LGBTQ+ rights, the continued denial of marriage equality remains a critical barrier to achieving full inclusion. The lack of legal recognition not only perpetuates systemic discrimination but also undermines the constitutional principles of equality, dignity, and personal liberty enshrined in India’s legal framework. Without marriage equality, same-sex couples are deprived of essential rights such as inheritance, adoption, spousal benefits, and medical decision-making authority, placing them at a severe disadvantage compared to their heterosexual counterparts.
To bridge this gap, a concerted and multi-pronged effort is essential. Legislative reforms must explicitly acknowledge and protect the marital rights of same-sex couples, ensuring that legal recognition translates into tangible benefits. Judicial progressiveness is equally crucial, with courts playing a pivotal role in interpreting constitutional provisions in a manner that upholds equal rights. Encouragingly, social and political developments indicate a growing awareness and acceptance of LGBTQ+ rights, demonstrating that change is possible through persistent advocacy and public engagement.
Ultimately, achieving marriage equality is not just about legal recognition; it is about affirming the fundamental human rights of all individuals, regardless of their sexual orientation. A society that upholds equality and inclusivity strengthens its democratic values and ensures that no individual or couple is denied the right to love and build a life together. Therefore, India must take decisive steps toward eliminating barriers to marriage equality, fostering a legal and social environment where same-sex couples can enjoy their full conjugal rights without fear of discrimination or exclusion.
References
- Bhogle, S. (2020). Realising Marriage Equality in India. NUJS Law Review, 12(3-4). Retrieved from nujslawreview.org
- Khan, S. R. (2020). Same-Sex Relationships and Marriage in India. University of Melbourne. Retrieved from law.unimelb.edu.au
- Supreme Court of India (2018). Navtej Singh Johar v. Union of India, AIR 2018 SC 4321. Retrieved from SC Observer
- Supreme Court of India (2023). Supriyo v. Union of India, (2023) SCC 789. Retrieved from Bar & Bench
- Reuters (2024). Indian Opposition Parties Name LGBTQ+ Activists to Key Posts. Retrieved from Reuters
- Indian Express (2023). Same-Sex Marriage Verdict and Its Impact on LGBTQ+ Rights in India. Retrieved from Indian Express
Advika Sahai
Army Institute of Law, Mohali