Same Sex Marriage

Marriage lies at the intersection of society and the law. Societal traditions are crystallized into the rules relating to marriage by law. The last two decades have witnessed tremendous progress in establishing civil rights for the LGBTQIA+ community.

  • In India, marriages are solemnised under personal lawssuch as the Hindu Marriage Act, 1955, Indian Christian Marriage Act, 1872, Muslim Personal Law (Shariat) Application Act, 1937.
  • At present, same-sex and queer marriages are not clearly recognised in India. However, we are not deprived of judicial guidance.
  • Arunkumar and Sreeja vs The Inspector General of Registration and Ors: The Madurai Bench of the Madras High Court employed the interpretation that the term ‘bride’ under the Hindu Marriage Act, 1955 includes transwomen and intersex persons identifying as women.
    • It expands the scope of a term used in the Hindu Marriage Act, 1955 in a progressive manner and sets the stage for re-imagining the marriage rights of the LGBTQIA+ community.
  • Shafin Jahan vs Asokan K.M. and Others (Hadiya case): The Supreme Court said that the right to choose and marry a partner was considered to bea constitutionally guaranteed freedom.
    • SC held that the “intimacies of marriage lie within a core zone of privacy, which is inviolable” and “society has no role to play in determining our choice of partners”.
    • From the logical interpretation of these judgements, it is apparent that any legal or statutory bar to same-sex and queer marriages must necessarily be held to be unconstitutional and specifically violative of Articles 14, 15 and 21 of the Constitution of India.
  • The domain of marriages cannot be immune to reform and review.
  • Reform of the Hindu Marriage Act, 1955 to bring self-respect marriagesunder its very umbrella, is seen as a strong move towards breaking caste-based practices within the institution of marriage.
  • Self-respect marriages were legalised in Tamil Nadu (later, in Puducherry) through amendments to the Hindu Marriage Act, 1955.
  • Self-respect marriages have done away with priests and religious symbols such as fire or saptapadi.
  • Solemnisation of such marriages requires only an exchange of rings or garlands or tying of the mangalsutra.
  • Similarly, understanding the needs of the LGBTQIA+ community, the law must expand the institution of marriage to include all gender and sexual identities.

  • Globally, the recognition of the unequal laws discriminating against the LGBTQIA+ community has acted as a trigger to reform and modernise legal architecture to become more inclusive and equal.
  • As a result of a verdict by the Constitutional Court of South Africa, the Civil Union Act, 2006 was enacted, enabling the voluntary union of two persons above 18 years of age, by way of marriage.
  • In Australia, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008was enacted to provide equal entitlements for same-sex couples in matters of, inter alia, social security, employment and taxation.
  • In England and Wales, the Marriage (Same Sex Couples) Act 2013enabled same-sex couples to marry in civil ceremonies or with religious rites.
  • In 2015, the Supreme Court of the United States decided that the fundamental right to marry is guaranteed to same-sex couples.It held the denial of marriage rights to same-sex couples to be a grave and continuing harm, serving to disrespect and subordinate gays and lesbians.

At least 29 countries in the world have legalised same-sex marriage. It is time that India thinks beyond the binary and reviews its existing legal architecture in order to legalise marriages irrespective of gender identity and sexual orientation. The law is however a dynamic concept. Inevitably the nature of marriage would change if there is a change in society.