Same-Sex Marriage: An Untouched Issue!


6th September 2018 is regarded as a historic day for the rights of the LGBTQ+ community in India. On the day, the Hon’ble Supreme Court of India unanimously held that Section 377 of the Constitution was inherently discriminatory in nature and therefore declared it unconstitutional. [1] This historic judgement which decriminalized homosexuality is celebrated and welcomed by the people of our country.

Decriminalization of homosexuality has paved the way for more progressive and inclusive India. The striking down of Section 377 has helped in the normalizing of same-sex relationships. This is only half the battle won as the LGBTQ+ community does not enjoy the same rights as their heterosexual counterparts. Same-sex marriages are still not considered legal in India. While almost religion has its own Marriage Act according to what is prescribed in the respective religious scriptures and traditions, there is a Special Marriage Act which protects the rights of couples who follow different religions or castes.

In January 2020, a gay couple filed a petition in the High Court of Kerala seeking legalization of same-sex marriage in India. The couple filed the petition after the administration refused to register their marriage under the Special Marriage Act. [2] In the Special Marriage Act, Section 4 and Schedules 2-4[3] explicitly mention that marriage is an affair between a male (bridegroom) and a female (bride), thus excluding the mention of same-sex marriage altogether.

The Judiciary alone cannot take decisions regarding the matter of same-sex marriage, it is the Legislature which has to take a clear stand on the legalization of same-sex marriages. It is said that the proposed draft of the Uniform Civil Code (UCC) in the year 2017, which was a part of the election manifesto of the ruling NDA government, ruled out discrimination based on gender for marriage.[4]  Merely passing an Act or amending the present Special Marriage Act will not be the solution, there are various other problems such as adoption, inheritance, surrogacy, etc. which will be needed to be taken into consideration by the legislature while forming and amending the laws which will help the LGBTQ+ community from being looked at as “outcasts” in future and help them assimilate smoothly in civil society.[5] 

Along with changing legislation and laws, the government will have a bigger responsibility of changing the orthodox mindsets of people and ending prejudices against the LGBTQ+ community. By making these amendments and laws, we would not be doing the LGBTQ+ community any favour, rather we would be giving them the basic human right to marry the person of their choice, raise a family, adopt and the right to live with dignity. Looking at the pace of all the things right now, India as a country sure has a long way to go in providing equal opportunities and rights to all irrespective of the gender.


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