It’s Time We Consider The Marital Status Of Same-Sex Marriage, For Good

The court in Navtej Singh Johar had apologized to the LQBTQ+ community for historical wrongs and had added: Sexual orientation is normal. The right to free speech and expression is violated by discrimination based on sexual orientation.

Same-sex marriage

Post the judgment in Navtej Singh Johar , it seemed inevitable that same-sex couples would soon knock on the doors of the constitutional courts to demand recognition of same-sex weddings. Navtej Singh Johar’s judgment decriminalized homosexuality. It determined that Section 377 of the Indian Penal Code's prohibition of private, consensual sexual activity between adults of the same sex was unconstitutional. 

The court in Navtej Singh Johar had apologized to the LQBTQ+ community for historical wrongs and had added: Sexual orientation is normal. The right to free speech and expression is violated by discrimination based on sexual orientation. Section 377 was struck down on the grounds that it established an arbitrary categorization for same-sex people under Article 14, as well as being a violation of bodily autonomy under Article 21. 

According to the court, differential treatment of homosexuals meant that they were considered a distinct class of citizens. Article 15 was violated by any categorization that promoted prejudices. Aside from non-interference, it advocated for the acknowledgment of rights in order to guarantee the real fulfillment of same-sex partnerships. Previously, even in NALSA , the Court emphasized the significance of 'gender identity' rights in the matters of employment, health care, education, equal civil and citizenship rights. 

The Madras High Court in Arun Kumar explicitly reviewed the legitimacy of a cis-trans marriage in connection to the Hindu Marriage Act, 1955, and found that it was permissible. The Madras High Court observed in Arun Kumar’s judgment that the Hindu Marriage Act of 1955 via section 5 encompasses transgender persons who identify as women and that refusing to register such a marriage would go against the person's fundamental rights as provided by Articles 14, 19(1)(a), 21, and 25. Even though it concerns cis-trans marriage, this ruling might nonetheless shed light on the legitimacy of same-sex unions in India.

Four years after overturning a colonial-era statute that declared homosexuality a crime, India's Supreme Court has listed the petitons seeking recognition of same-sex marriage on the 6th of January, 2023. The petitions filed by 4 same-sex couples are now listed in front of the bench of Chief Justice D.Y. Chandrachud and Justice P.S. Narasimha. 

As of very recent a petition is drawn up by two same-sex couples to the Supreme Court who wanted the Special Marriage Act of 1954 to recognize same-sex marriage and grant them protection under Article 32 of the Constitution. The petitioners ask the Court to acknowledge that the Special Marriage Act's definition of marriage between any two individuals should be understood to encompass same-sex marriage, or alternatively, to declare the Special Marriage Act unconstitutional insofar as it prohibits same-sex marriage.

The petitions claimed that the Special Marriage Act of 1954 was ultra vires to the Constitution since it discriminated between same-sex and opposite-sex spouses. It argued that the Act deprived same-sex couples of both legal rights as well as social respect and status that marriage provided. 

The Special Marriage Act of 1954 via Section 4 lays forth the requirements for solemnizing exceptional marriages. The phrase "The male has completed the age of 21 years and the female the age of 18 years" appears in Section 4, which refers to the solemnization of weddings between any two people. Furthermore, there are references to "husband" and "wife" in the sections dealing with marriage registration, restitution of conjugal rights, judicial separation, divorce, and alimony throughout this piece of legislation.

If same-sex marriages are to be recognized under the Special Marriage Act, the Supreme Court would need to interpret or insert the word "spouse" into every reference to "husband" and "wife" in the current statute so that non-heterosexual couples have equal access to not only marriage but also to all related reliefs under the Special Marriage Act. These petitions gave the petitioners the chance to ask the Supreme Court to strike down Special Marriage Act sections 5 to 10, which require public notice of prospective marriages, the submission of objections from any parties who may do so, and the Marriage Officer's ruling on those objections.

It is vital to bring up this issue in petitions seeking for marital equality in the context of same-sex weddings because the public notice requirements and filing of objections under the Special Marriage Act have also been questioned in other petitions. The Special Marriage Act's notice and objection clauses are regularly used by families and communities to prohibit inter-caste and inter-religious marriages, thus it is inevitable that they will also be utilized to couples who prefer not to have heterosexual relationships. Evidence for this assertion comes from the numerous High Court protection orders obtained when harassing lesbian couples and couples with one transgender spouse.

Clearly, the Court concentrated on an all-encompassing definition of equality in all sectors of life, which is required for dignified living and overcoming prejudice. With this strong equality-based logic, which goes beyond basic privacy protection, the state's exclusion of marital rights (under attack) looks impossible to explain. Thus, the foundation of equal treatment should pave the path for marital equality in India rather than being left to the whims of the legislators. This is crucial in the Indian context, where marriage has unique cultural and religious significance, and denying it may compound the stigma encountered by same-sex couples. Where the Government has taken no active actions following the Court's judgment in 2018, the Court may be the last opportunity for asserting sequential rights.


It is about time that the top court trashes all the provisions that are frequently used to forbid people from entering into what is seen as traditionally unconventional marriages. There is no denying that India needs to officially recognize marital equality. All eyes will be on the Supreme Court now, hoping that it recognizes all rights, remedies, and duties connected to marriage for all people, not just heterosexual couples.

Kamya and Kartikeya are students of law based out of Delhi.