Homosexuality and Same-Sex Marriage
Homosexuality and Same-Sex Marriage in Indian Law
1. Understanding Homosexuality under Indian Law
Historically, Section 377 of the Indian Penal Code (IPC) criminalized “unnatural offenses,” which included consensual sexual acts between adults of the same sex.
This provision was interpreted as criminalizing homosexuality.
2. Key Case Law on Homosexuality
Navtej Singh Johar v. Union of India (2018) - Supreme Court
Facts:
Several petitioners challenged the constitutionality of Section 377 IPC, specifically its application to consensual homosexual acts between adults.
Judgment:
The Supreme Court, in a landmark decision, decriminalized consensual homosexual acts between adults by reading down Section 377. The Court held that:
Criminalizing consensual sexual conduct between adults of the same sex violates fundamental rights under the Indian Constitution, including:
Right to Equality (Article 14)
Right to Non-Discrimination (Article 15)
Right to Privacy (Article 21)
Right to Dignity and Freedom of Expression.
The Court recognized the LGBTQ+ community’s rights to live with dignity and respect.
Significance:
This judgment marked a historic shift in the legal recognition of homosexuality in India by removing criminal sanctions on consensual same-sex relations.
3. Same-Sex Marriage under Indian Law
Current Status:
Indian law does not currently recognize same-sex marriage under any existing statutes such as the Hindu Marriage Act, Special Marriage Act, or other personal laws.
Legal Recognition:
There is no provision explicitly permitting or prohibiting same-sex marriage, but courts have generally upheld the traditional view of marriage as a union between a man and a woman.
4. Key Case Law on Same-Sex Marriage
Shivani Bhat v. Union of India & Ors. (Ongoing/Pending Cases in various High Courts and the Supreme Court)
Various petitions have been filed seeking recognition of same-sex marriages or civil unions, arguing for the extension of constitutional rights of equality and dignity to LGBTQ+ couples.
These petitions are currently under consideration, but no binding Supreme Court ruling has yet granted legal recognition to same-sex marriages.
Arunkumar & Anr. v. The Inspector General of Registration & Ors. (2020) - Madras High Court
Facts:
A same-sex couple sought the registration of their marriage under the Hindu Marriage Act.
Judgment:
The Madras High Court refused to register the marriage, stating that the Hindu Marriage Act envisages marriage between a male and female and does not extend to same-sex couples.
Significance:
This case clearly illustrates the current legal position that same-sex marriages are not recognized under personal laws in India.
5. Summary and Legal Position
| Aspect | Current Legal Position in India |
|---|---|
| Homosexuality | Decriminalized by Supreme Court in Navtej Singh Johar case (2018) |
| Same-Sex Marriage | Not legally recognized; no provision under existing personal or civil laws |
| Ongoing Legal Developments | Petitions pending in courts seeking recognition of same-sex marriage; judgments awaited |
6. Conclusion
The Supreme Court has affirmed the constitutional rights of LGBTQ+ persons to dignity, equality, and privacy by decriminalizing homosexuality.
However, same-sex marriage is yet to be legally recognized in India.
The recognition of same-sex marriages requires legislative reforms or future judicial intervention, balancing constitutional rights with societal and cultural considerations.
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