Marriage – an LGBTQIA+ perspective

The Constitution of India lists Fundamental Rights to every citizen which include the right to equality and freedom. Courts are bound to acknowledge and uphold these rights for the betterment of our society.

India has several legislations that govern marriages which include the Hindu Marriage Act, Muslim Personal Law (Shariat) Act, the Indian Christian Marriage Act, the Special Marriage Act, and the Foreign Marriage Act. These laws allow a ‘man’ and a ‘woman’ to be married. Terms such as bride, bridegroom, man, woman, male, female, etc., indicate that only individuals of two different sexes may marry in India. Unfortunately, this leaves no room for same-sex marriage for the LGBTQIA+ community. 

In this three-part series, we intend to analyse the past, present and future of the LGBTQIA+ community’s right to marry – Part 1 containing the journey of the recognition of rights of the LGBTQIA+ community so far, including decriminalization of Section 377 of the Indian Penal Code, privacy, rights of third gender, and right to choose a partner; Part 2 is the assessment of the Supriyo judgment and Part 3 is the way forward, including the possibility of this being included in the much debated Uniform Civil Code (‘UCC’).

The United Nations had expressed its support towards the LGBTQIA+ community in the year 2003 itself.

Currently, there are 36 countries which include the United Kingdom and the United States of America, which have legalised same-sex marriage. In America, same-sex marriage was legalised through the case of Obergefell v. Hodges and in the year 2022, the Respect for Marriage Act was passed by Congress which recognised same-sex marriage.

The Obergefell decision relied on four principles, that is, individual autonomy, intimate association, rights which come along with marriage and rights of parents in marriage. It also relied on the Fourteenth Amendment that guarantees a right to same-sex couples to marry in America. The majority opinion also held that the ban on same-sex marriage was in itself against the ‘equal protection clause’ and ‘due process clause’ in America.

In the case of the United Kingdom, marriage between same-sex couples was introduced by way of the Marriage (Same Sex Couples) Act 2013. In this regard, a quadruple lock was ensured by the government which provides the position for same-sex couples - that is, while the legislation provides no compulsion for a minister or religious organisation to marry a same-sex couple, there is an option of 'opt-in' for religious organisations to conduct same-sex marriages - by amending the Equality Act, 2010 and making sure that the legislation does not affect Cannon Law.

About the authors: Prashanth S Shivadass and Sumonto Chakravarty are Partner and Associate respectively, with Shivadass & Shivadass (Law Chambers).

Disclaimer: The contents and comments of this document do not necessarily reflect the views/position of Shivadass and Shivadass (Law Chambers) but remain solely of the author(s). For any further queries or follow up, please contact admin@sdlaw.co.in.

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