Same-Sex Marriage In India: An Overview

Shikha Bhatnagar, Research Scholar, Sardar Patel Subharti Institute of Law, Swami Vivekanand Subharti University, Meerut

ABSTRACT

Marriage has always been considered as a holy union, and indissoluble union and earlier it was strictly called as a sacrament in nature but now with the change of time marriage consist some features of a contract also, therefore marriage institution has both characteristics i.e. contractual as well as sacramental. It is an inherent union between two ‘individuals’.

Homosexuality, as defined by the Oxford Dictionary, refers to the quality of being sexually attracted exclusively to individuals of one's own sex. Historically, homosexuality was classified as a mental disorder. Despite its existence throughout human history, those identifying as homosexual often faced discrimination, abuse, and condemnation due to societal perceptions that viewed their actions as immoral, criminal, or sinful.

In India, the practice of homosexuality was criminalized under Section 377 of the Indian Penal Code, 1860. However, over time, awareness grew through clinical research that homosexuality is a natural expression of human sexuality. As a result, the LGBTQ+ community and advocacy organizations embarked on campaigns to legalize same-sex relationships. Many countries around the world have since decriminalized homosexuality and even recognized same-sex marriages.

In India, a significant legal milestone was achieved with the Supreme Court's ruling in the Navtej Singh Johar v. Union of India case in 2018. This decision partially decriminalized Section 377, thereby legalizing consensual homosexual relationships between adults. Nevertheless, India's legal framework remains silent on the legality of same-sex marriages, leaving an absence of regulations pertaining to marriage, adoption, inheritance, and related matters for same-sex couples.

Therefore few questions get arises which needs to be answered firstly the idea of same sex marriage should be made legalised in India?