Around two years back, the Hon’ble Supreme Court of India in its historical judgement of Navtej Singh Johar v. Union of India decriminalised homosexuality in the country. However, despite this progressive judgement, certain questions incidental to the homosexual relationships remained unaddressed by both the Apex Court and the Government. One such question pertains to ‘same-sex marriages’. India does not recognise same-sex marriages. None of the marital laws expressly recognise same-sex marriages. Recently, a Public Interest Litigation (“PIL”) was filed in the High Court of Delhi seeking declaration to the marriage rights of the gay community under the Hindu Marriage Act, 1955 (“the Act”). The petitioner avers that the Act allows marriages between “two Hindus” without any discrimination between heterosexual and homosexual couples. It is nowhere mentioned under Section 5 of the Act, laying conditions of a valid Hindu marriage, that a marriage must be solemnised between ‘only’ a man and a woman. But still, gay couples can’t get married and register the same under the Act.

The law of the land sees members of the LGBTQ+ community only as ‘individuals’ and not as ‘couples’, due to which, homosexual couples have to suppress their feelings of getting married to a partner of their choice. One of the major reasons that homosexuality is still not accepted as ‘normal’ in India is because it lacks a ‘stamp of marriage’. It is just exactly how live-in relationships turn from ‘anti-social’ to ‘social’ when the partners get married. Marriage is a sacrosanct institution in India. Depriving the LGBTQ+ community of the right to get married solely on the basis of sexual orientation and gender identity is absolutely discriminatory and against the gist of (“the Constitution”).

Countries around the world have legalised same-sex marriages. The world is heading towards progressive LGBTQ+ rights, but the government of India doesn’t seem to be in the mood for leaving the clutches of orthodoxy and conservatism, despite the 2018 verdict. Opposing the petition, the Union Government through its Solicitor General stated that “Our (Indian) legal system, society, and values do not recognise same-sex marriages.” He further contended that “the 2018 judgement merely decriminalises homosexuality or lesbianism, nothing more nothing less.”

Such rigid adherence to the archaic values and principles, depriving the sacrosanct right to get married to a partner of one’s choice, is strictly against the gist of right to life and personal liberty guaranteed by the Constitution under Article 21. The petition is yet to be heard next in October, but the response of the Union Government has somewhere highlighted its perception on the rights of the LGBTQ+ community. It is for this rudimentary mindset of those in power, that members of the LGBTQ+ community are still treated as a second class of citizens.

Same-sex marriages are not a new phenomenon in India. Homosexuality has an ancient history in India. The history of homosexuality can be traced to the Rig-Veda, which dates around 1500 BC. The ‘Kamasutra’ also describes the Harems of young boys kept by Hindu aristocrats and Muslim Nawabs. However, with the advent of Brahmanism and later British Colonialism, these experiences stated to be seen as a matter of hatred. The Aryan invasion began to supress homosexuality as they kindled the dominance of patriarchy. Homosexuals were punished, beaten, and subjected to various physical and mental tortures. This eventually gave birth to homophobia which, with time, changed it forms. From there, homosexuality started to lose its roots.

Lack of recognition does not mean that same-sex marriages have not happened in India. In 1987, a marriage occurred where two policewomen married each other with Hindu rituals. The denial of the right to marry the partner of one’s choice is absolutely unjust.

Hindu scriptures define marriage as the union of ‘two souls’ and the same scriptures also define that a soul has no gender. It is only the human bodies that possess a gender. These scriptures are a major source of Hindu Law including the Act. The Act merely codifies the Hindu law and doesn’t try to erode the values imbibed within the Holy Scriptures.

The debate over same-sex marriages is more of morality than on law. People try to establish a line of distinction between the ‘societal norms’ and ‘individual liberty’ especially in the culture where religion enjoys more prominence. The law on same-sex marriages in India is already indirectly established by the apex court. In March 2018, the Supreme Court of India has held that an adult has a fundamental right to marry a person of their own choice. The collective reading of this case with Navtej Singh Johar (September 2018) can be taken as a tacit recognition of same-sex marriage. Further in 2019, The High Court of Madras decreed and allowed the marriage under the Act.

However, the matter lacks clarity as different High Courts have taken different views on the issue. For instance the High Court of Delhi, after three months of the Madras High Court verdict had seeking an amendment in the Act to include same-sex marriages within its ambit. The Court held that the matter is one ‘parliament kind’ and not of the ‘court kind’.

However, the reply of the Government in the instant PIL filed in Delhi HC, in some way or the other, throws light on its reluctance to give a statutory effect to same-sex marriages. Even the Human Rights Charter [Article 16] recognises the ‘right to marry’ as a universal right. Seeking this right to extend to homosexual couples as well is neither too complicated nor unjust. Not allowing the LGBTQ+ community as per their own choice is just like saying ‘you are different and there is no one to marry you in this country; forget about the person you love’.

We must not forget that it was the blind inclination towards values, beliefs, and traditions of the noble men in the Court of Dhritrashtra that lead to the drastic war of Mahabharata. Just as still water starts to stink with time; still rituals, customs, traditions, values and beliefs start to stink the society. Change is the law nature. This is the right time to introduce the change in India vis-à-vis same sex marriages.

If the law of the country can recognise ‘love of two souls irrespective of gender’ why can’t it recognise their marriage as well? What makes life meaningful is love. The right that makes us human is the right to love. If it is not allowed to bind this love into a knot of marriage, then such love will always remain incomplete and society will never accept it. India’s Constitution is ready for same-sex marriages but there is a strong need to make people and the society leave the rudimentary shackles of so-called ‘values and culture’ and acclimate to the change flowing in nature.

Paras Sharma is penultimate year law student at Panjab University, Chandigarh, India.

Suggested citation: Paras Sharma, The Unanswered Question of Same-Sex Marriages in India, JURIST – Student Commentary, October 9, 2020, https://www.jurist.org/commentary/2020/10/paras-sharma-india-same-sex-marriage/.

This article was prepared for publication by Khushali Mahajan, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org