Same-sex marriage is not legally recognized in India. Section 377 of the Indian Penal Code criminalized sexual activities “against the order of nature”, including same-sex relations, until it was declared unconstitutional by the Supreme Court in 2018. However, same-sex marriages are still not legally recognized.
Quick Answers
Is same-sex marriage legal in India?
No, same-sex marriage is not legal in India. India does not recognize same-sex marriages or civil unions.
What does Indian law say about same-sex relationships?
Section 377 of the Indian Penal Code had criminalized carnal intercourse “against the order of nature”. In 2018, the Supreme Court read down Section 377 to exclude consensual same-sex relations from criminalization. However, same-sex marriage is still not legally recognized.
Can same-sex couples adopt children in India?
No, Indian law does not allow same-sex couples to adopt children. Single individuals regardless of sexual orientation are allowed to adopt.
Do other countries in South Asia recognize same-sex marriage?
No country in South Asia currently recognizes same-sex marriage. However, Nepal provides limited rights such as inheritance rights for same-sex couples.
Legal Status of Same-Sex Relations in India
For many years, consensual same-sex relations were criminalized under Section 377 of the Indian Penal Code, which was enacted in 1861 under British colonial rule. Section 377 made carnal intercourse “against the order of nature” an offense punishable by fines and imprisonment of up to 10 years.
This was widely interpreted to include same-sex relations, effectively prohibiting homosexual activity. Several citizens challenged the constitutionality of Section 377 before the courts.
In 2009, the Delhi High Court ruled that Section 377 violated fundamental rights to equality, non-discrimination, life and personal liberty guaranteed under the Constitution. The court read down the section to exclude consensual same-sex relations between adults from criminalization.
However, in 2013, the Supreme Court overturned that ruling and upheld the validity of Section 377 in the Suresh Kumar Koushal v. Naz Foundation decision. This once again criminalized consensual same-sex activity.
Many LGBT rights groups and patients filed writ petitions challenging the constitutionality of Section 377 again. Finally, in the landmark Navtej Singh Johar v. Union of India verdict of 2018, the Supreme Court ruled that Section 377 was unconstitutional to the extent that it criminalized consensual same-sex relations.
The court held that Section 377 violated privacy and equality rights. This decriminalized homosexuality, but same-sex marriage is still not legally recognized in India.
No Legal Recognition for Same-Sex Marriages
While same-sex relations are no longer criminalized after the Navtej Singh Johar case, same-sex marriage itself has no legal validity under Indian laws.
The Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 allow solemnization of marriage only between a biological man and woman. In fact, the laws explicitly prohibit marriage where either partner is not capable of “giving valid consent” due to causes like being of “unsound mind” or inability to consummate marriage.
The Foreign Marriage Act, 1969 requires at least one partner to be an Indian citizen domiciled in India. It also requires that the marriage between the parties is valid under the law of the country where it is solemnized, which rules out same-sex marriages solemnized abroad.
Furthermore, family laws related to domestic violence, maintenance, inheritance, succession, tax benefits, insurance benefits, etc. are only applicable to legally wedded heterosexual couples. Same-sex couples cannot claim these rights even if they live together like spouses.
Many petitions have been filed before High Courts seeking legal recognition of same-sex marriages, but they have had little success so far. However, the matter remains sub judice and the door remains open for future court rulings favorable to same-sex marriage.
Adoption Rights for Same-Sex Couples
While heterosexual married couples are allowed to adopt children under Indian law, same-sex couples are prohibited from adoption.
The Hindu Adoptions and Maintenance Act, 1956 and Juvenile Justice (Care and Protection of Children) Act, 2015 only permit a single or married person to adopt. Single persons are not prohibited from adopting based on sexual orientation under the law.
However, the laws are interpreted to disallow same-sex couples from adopting children jointly, although single LGBT individuals can legally adopt. In a recent case, the Bombay High Court allowed a single homosexual man to adopt a child noting that the law does not discriminate based on sexual orientation. But it maintained its opposition to same-sex couples adopting.
The Karnataka High Court recently directed the government to consider legalization of same-sex couple adoption rights. The Supreme Court is also hearing a plea challenging restrictions on same-sex couple adoption. But currently, Indian law does not allow same-sex couples to adopt even though single homosexual individuals face no prohibition.
Status of Same-Sex Relations in Other South Asian Countries
| Country | Legality of Homosexual Activity | Legal Recognition of Same-Sex Marriage |
|---|---|---|
| Afghanistan | Illegal | No |
| Bangladesh | Illegal | No |
| Bhutan | Illegal | No |
| India | Legal since 2018 | No |
| Maldives | Illegal | No |
| Nepal | Legal since 2007 | No, but Nepal provides inheritance rights and other limited rights for same-sex couples |
| Pakistan | Illegal | No |
| Sri Lanka | Illegal | No |
Among South Asian countries, only India and Nepal have decriminalized consensual same-sex relations. However, neither offers legal recognition to same-sex marriages currently. Nepal does provide limited rights like inheritance rights, ability to own joint property, etc. for same-sex couples. Other countries in the region still criminalize homosexuality.
Arguments For and Against Legalizing Same-Sex Marriage in India
There are impassioned opinions on both sides of the same-sex marriage debate in India.
Arguments made in favor of legalizing same-sex marriage include:
- Fundamental Right to Marry: Citizens have a right to marry any person of their choice. Prohibiting same-sex marriage violates liberty and equality.
- Non-discrimination: Disallowing same-sex marriage discriminates on the basis of sexual orientation, which is unconstitutional.
- Privacy: Choice of spouse is part of the fundamental right to privacy, which extends to same-sex couples.
- Equal Protection: Same-sex couples deserve equal rights to marriage, adoption, inheritance, tax benefits, insurance coverage etc. Denying this goes against constitutional principles.
- Progressive Step: Legalizing same-sex marriage would make India more open, inclusive and progressive in line with global trends of LGBT rights expansion.
Arguments made against legalizing same-sex marriage include:
- Against Indian Culture & Values: Same-sex relations are against Indian society’s cultural norms and traditional value systems.
- Threat to Institution of Marriage: Same-sex marriages would undermine and weaken the institution of marriage.
- Religious Arguments: Most religions practiced in India object to same-sex marriages on moral grounds.
- Slippery Slope: If same-sex marriages are recognized, it could open the doors for legalizing polygamous and incestuous marriages.
- Stability of Society: Legalizing same-sex marriage risks destabilizing Indian society which is unprepared for such radical change.
The matter is being hotly debated with reasonable arguments on both sides. Ultimately, it will depend on the courts to weigh these considerations and determine whether constitutional principles require recognizing same-sex couples’ right to marry.
Public Opinion on Same-Sex Marriage in India
Though limited, surveys indicate complex and shifting public attitudes towards same-sex marriage in India:
- A 2016 poll by Ipsos found only 27% of Indians supporting legalization of same-sex marriage.
- But 72% opposed criminalization of homosexuality in a 2018 IPSOS survey indicating greater tolerance.
- An Observer Research Foundation survey in 2019 found 37% support for same-sex marriage legalization.
- Young and urban Indians tend to be more supportive of LGBT rights than older and rural citizens.
- Acceptance is gradually increasing with growing awareness and exposure to LGBT rights discourse.
Overall, Indian public opinion currently leans against legal same-sex marriage but not as strongly as earlier. Attitudes are slowly shifting, but significant opposition remains.
Conclusion
Same-sex marriage is presently prohibited under Indian law, although consensual homosexual activity has been decriminalized. Marriage laws restrict marriage to biological men and women. Adoption by same-sex couples is also not permitted currently.
LGBT activists argue this denies fundamental rights to same-sex couples. Petitions seeking legalization of same-sex marriage have been filed before the High Courts.
However, others oppose it on grounds of culture, tradition and religion. Courts will need to balance these considerations to determine the constitutionality of recognizing same-sex couples’ right to marry. For now, the legal status of same-sex marriage remains ambiguous and uncertain in India. Public opinion too seems cautiously divided.
The path to recognizing same-sex marriage faces legal and socio-cultural hurdles. But with growing support and constitutional basis, same-sex marriage may potentially gain legal validity in the future.