Can LGBTQ+ Persons Marry in India?

Same-Sex Marriage Hearings – A Landmark Fight for LGBTQ Rights in India

Living in contemporary times with ancient laws can be a complex and challenging experience. On one hand, these laws can provide a sense of continuity and tradition and may be deeply ingrained in cultural and religious beliefs. They may also provide a sense of stability and predictability in society.

On the other hand, they may be outdated and not reflective of current social and cultural norms. They may also perpetuate inequality and discrimination, particularly towards marginalized communities such as the LGBTQIA+ community.

India is currently facing one such challenge of balancing traditional values with changing attitudes and values as it navigates the tension between preserving its decades-old laws and adapting to modern norms. In a landmark move, India is currently holding hearings to consider the legalization of same-sex marriage rights under the Special Marriage Act of 1954. Marriage Equality represents an important step towards greater recognition and inclusion of LGBTQ+ individuals in Indian society and reflects the ongoing evolution of attitudes towards sexual orientation and gender identity in the country.

The historic decision to decriminalize homosexuality in India by striking down the colonial-era law under section 377 in 2018 was a significant victory for the LGBTQ+ community. However, despite this important milestone,

Same-Sex Marriages are Still not Legal in India. Why?

India’s legal system recognizes homosexuality and being LGBTQ+ as natural variations of human sexuality, but currently does not allow same-sex marriages or marriage equality. This can be seen as a contradiction or even ironic as recognizing LGBTQ+ individuals but denying them the right to marry can perpetuate discrimination and inequality.

The LGBTQ+ community views the government’s opposition to marriage equality as unconstitutional, as it goes against the fundamental rights of equality and non-discrimination. This opposition is believed to be fueled by centuries of patriarchal attitudes that prioritize heterosexual relationships and perpetuate discrimination against marginalized communities, including the LGBTQ+ population.

The ongoing hearing to legalize same-sex marriage is a crucial step taken by petitioners to challenge and eliminate the archaic law that continues to deny fundamental rights to the LGBTQ+ community. This legal battle is aimed at achieving marriage equality and putting an end to the long-standing discrimination against the LGBTQ+ population.

Same-Sex Marriage Hearing Highlights

The lead petitioners Supriya Chakraborty and Abhay Dang, filed a petition seeking legal recognition of their marriage in the Supreme Court of India on 14 November 2022. On 25th November 2022, a two-judge Bench of the Supreme Court, comprising Chief Justice of India D.Y. Chandrachud and Justice Hima Kohli, admitted a petition filed by another gay couple, Parth Phiroze Mehrotra and Uday Raj Anand. In addition to this petition, the Bench also directed high courts to transfer nine similar petitions, eight of which were from the Delhi High Court and one from the Kerala High Court, to the Supreme Court for consideration alongside the original petitioners.

Subsequently, on 15th March 2023, the Supreme Court further admitted 20 connected petitions filed by 52 members of the queer community, including 17 queer couples. The majority of these petitioners sought recognition of their right to marry under secular marriage laws, such as the Special Marriage Act and the Foreign Marriage Act.

The petitioners, in this case, have put forth numerous declarations covering various facets of basic human rights that should be granted to the LGBTQ+ community. These rights encompass a range of issues, including financial rights, education, divorce, adoption, succession, maintenance, and more.

Throughout the hearings, the petitioners have argued that recognizing marriage equality goes beyond just legalizing same-sex marriage and that it is crucial to view gender and sexuality as a spectrum. In one hearing, advocate Shivam Singh made a powerful argument about discrimination based on sexual orientation, stating that “sexual orientation and gender are innate characteristics of a person, and to discriminate on this basis would be a violation of Article 14 of the Constitution.”

The declarations also bring attention to critical issues, such as the discriminatory practice of restricting joint adoption to only heterosexual couples, and the need to recognize the concept of the chosen family. Additionally, the petitioners have urged the use of inclusive languages, such as using the term “third gender spouse” for marriages between transgender persons and replacing the traditional terms of “husband” and “wife” with the word “spouse” to be more inclusive.

Where Does the Union Government Stand on Same – Sex Marriage?

During the hearings, the Union government argued against recognizing same-sex marriage under the Special Marriage Act, stating that it would undermine the core purpose of the act, which currently only permits marriages between a man and a woman. Solicitor General Tushar Mehta contended that only Parliament has the authority to address such matters and that the Court could not feasibly account for all possible situations. Mehta also emphasized that the Special Marriage Act is designed for intra-faith heterosexual couples.

The bench, consisting of Chief Justice of India D.Y. Chandrachud, Justice P.S. Narasimha, and Justice J.B. Pardiwala, observed that legalizing same-sex marriage without revising personal laws would be a complex task and that a great deal of deliberation would be required to come up with a solution. The judges acknowledged that multiple amendments to the law would be necessary to make it more inclusive.

The ongoing hearings highlight the challenges and complexities surrounding LGBTQ+ rights and acceptance in India. While it may be tempting to view the issue as a binary choice between progress and stagnation, it is important to recognize the multifaceted nature of the debate. As the hearings continue, we can expect to gain further insights and perspectives on the matter. Allowing same-sex marriage is a way to promote equality and acceptance for all individuals, regardless of their sexual orientation or gender identity.

It is important to continue working towards greater acceptance and inclusion of LGBTQ+ individuals in all aspects of society, including in areas such as marriage and family. This can involve challenging long-held beliefs and societal norms, as well as advocating for legal protections and rights for LGBTQ+ individuals. Ultimately, progress towards greater acceptance and inclusion is a continual journey, and there is always more work to be done.

At KelpHR we believe that having a diverse, equitable and inclusive workplace is the key to business transformation and growth and that we must be inclusive of all persons irrespective of any differences. To know more about KelpHR’s Diversity, Equity & Inclusion solutions and how we can help you make your workplace more inclusive do call us at +91-95001-29652, email info@kelphr.com, visit www.kelphr.com

About KelpHR

KelpHR was incorporated in 2013 to provide the best HR solutions to organizations, and to improve workplace culture across the board. Over the last 10 years, we have serviced more than 700 clients in India and a few overseas, across various industries in the areas of PoSH (prevention of sexual harassment at workplace), D, E & I (Diversity, Equity & Inclusion) and EAP. But the common objective of all of these services is to build safer, happier, inclusive and productive workplaces.

For any of our other services related to Prevention of Sexual Harassment (PoSH) or Employee Assistance programs (EAP) do get in touch with us at info@kelphr.com, call +91-95001-29652 and we’d be able to help you with customized offerings suited to your organization.