Recognition of same-sex unions in India

India does not recognise same-sex marriage or civil unions. Additionally, it does not possess a unified marriage law. Every Indian citizen has the right to choose which civil code will apply to them based on their community or religion. Although marriage is legislated at the federal level, the existence of multiple marriage laws complicates the issue. The following acts cover India's marriage laws:

Marriage
LGBT portal

None of these codified marriage acts explicitly defines marriage as between a man and a woman. Neither do these acts explicitly prohibit same-sex unions.[21] However, the laws have "heteronormative underpinnings" and have been interpreted not to recognise same-sex unions.

The state of Goa is the only Indian state to have a unified marriage law. Every citizen is bound to the same law, regardless of their religion.[22] However, Goa's Uniform Civil Code explicitly defines marriage as being between members of the opposite sex.

As of 2017, a draft of a Uniform Civil Code that would legalise same-sex marriage nationwide has been proposed.[23]

History
Homosexuality laws in Asia
Same-sex sexual activity legal
  Marriage performed
  Foreign same-sex marriages recognized
  Other type of partnership
  Legal guardianships or unregistered cohabitation
(stripes: nonbinding certificates)
  No recognition of same-sex couples
  Restrictions on freedom of expression
Same-sex sexual activity illegal
  Prison on books but not enforced
  Prison
  Life imprisonment
  Death penalty on books but not applied
  Death penalty

Since 1987, when the national press reported the story of two policewomen who married each other by Hindu rites in central India,[24][25] the press has reported many same-sex marriages, all over the country, mostly between lower middle-class young women in small towns and rural areas, who have no contact with any gay movement. Family reactions range from support to disapproval to violent persecution. While police generally harass such couples, Indian courts have uniformly upheld their right, as adults, to live with whomever they wish. In recent years, some of these couples have appeared on television as well. There have also been numerous joint suicides by same-sex couples, mostly female (male-female couples also resort to suicide or to elopement and religious marriage when their families oppose their unions).

In "Same-Sex Love in India: Readings from Literature and History" (2000), author Ruth Vanita analyses dozens of such marriages and suicides that have taken place over the last three decades, and explores their legal, religious and historical aspects. She argues that many of the marriages can arguably be considered legally valid, as under the Hindu Marriage Act, 1955, any marriage between two Hindus performed according to the customs prevalent in the community of one of the two partners is legally valid. No license is required to marry, and most heterosexual Hindu marriages in India today are performed by religious rites alone, without a marriage license and are never registered with the state. State recognition is not sought by most couples because it confers few benefits. Most couples seek the validation of family and community, and several female couples in rural areas and small towns have received this validation.[26][25]

There have also been a couple of high-profile celebrity same-sex civil partnerships, such as the civil union of designer Wendell Rodricks with his French partner Jerome Marrel, conducted under French law in Goa.

In December 2017, a dual Indian-Vietnamese same-sex couple held a wedding ceremony in Yavatmal in the state of Maharashtra, alongside family, friends and well-wishers.[27] In April 2018, a lesbian couple got married at a mass wedding ceremony in the city of Agra, after one of them dressed as a man. However, some family members discovered, and urged them to separate. Police later intervened.[28]

Legalisation efforts

Traditionally, India has identified same-sex unions to be a trans-rooted alien culture-bound syndrome and associated social disorder. Hence, LGBT groups are working in the backgrounds for a step by step approach, required to tackle all the problems and rights of LGBT citizens in India. The previous focuses of these groups were to repeal Section 377 of the Indian Penal Code and to enact non-discrimination laws. Nevertheless, LGBT rights agencies are optimistic and are working on winning the right to same-sex marriage, inspired by the financial support and progress achieved in several Western countries. In April 2014, Medha Patkar of the Aam Aadmi Party stated that her party supports same-sex marriage.[29]

A single case of legal recognition of a same-sex marriage was granted by the Punjab and Haryana High Court in 2011.[30]

Uniform Civil Code

In 2017, a draft of a Uniform Civil Code that would legalise same-sex marriage was proposed.[23] Under the proposed code, marriage is defined as

"the legal union as prescribed under this Act of a man with a woman, a man with another man, a woman with another woman, a transgender with another transgender or a transgender with a man or a woman".

A partnership is similarly defined as the living together of a man with a woman, a man with another man, a woman with another woman, a transgender with another transgender or a transgender with a man or a woman. It also provides that any two persons who have been in a partnership for more than two years shall have the same rights and obligations as married couples. It also mandates the registration of all marriages. In addition, the draft states that "all married couples and couples in a partnership are entitled to adopt a child. The sexual orientation of the married couple or the partners are not to be a bar to their right to adoption. Non-heterosexual couples will be equally entitled to adopt a child." Finally, the code provides for the repeal of all of India's marriage-related laws (the Hindu Marriage Act, the Hindu Succession Act, the Muslim Personal Law Application Act, the Dissolution of Marriage Act, the Indian Christian Marriage Act and the Parsi Marriage Act, among others)

The draft has been submitted to the Law Commission of India. Whether India should adopt a Uniform Civil Code is a matter of ongoing political debate in India.[31][32] The Bharatiya Janata Party supports a Uniform Civil Code and was the first party in India to do so.[33]

The Law Commission began soliciting public views and requests on the issue on 19 March 2018, and later extended the deadline for opinions to 6 May 2018.[34] In late May, the Commission began seeking the views of religious groups. Muslim groups oppose a uniform civil code because such a code would ban triple talaq, polygamy and would not be based on Sharia law, unlike the current Muslim Personal Law, which governs Indian Muslims.[35]

Progress on the code has since stalled, much to the dismay of the Supreme Court.[36]

2018 Supreme Court rulings

On 5 February 2018, the Supreme Court ruled, in a case involving caste councils interfering in marriages, that "no one, either individually or collectively, has the right to interfere in a marriage between two consenting adults."[37]

In March 2018, the Indian Supreme Court, in the case of Shakti Vahini vs Union of India, held that an adult has the fundamental right to marry a person of their choice. Thus, activists feel that a joint reading of Shakti Vahini and Navtej Singh Johar v. Union of India, the September 2018 ruling decriminalising consensual sex in private, could yield the recognition of same-sex unions within the Special Marriage Act.[38][39]

On 6 May 2018, the Supreme Court ruled that a 20-year-old Kerala woman, whose marriage had been annulled, could choose whom she wanted to live with. The Court ruled that "an adult couple has a right to live together without marriage", and held that live-in relationships (cohabitation between unmarried couples) are now recognized by the law.[40]

Pending court cases

In 2019, two women from Hamirpur, Uttar Pradesh, who married symbolically, tried to get their marriage recognised at the registrar's office, who denied citing lack of relevant provisions. The couple's lawyer, Daya Shankar Tiwari, has said they will challenge the registrar's decision to not legally recognise the marriage.[41]

In July 2019, the Delhi High Court dismissed a legal challenge brought forward by Tajinder Singh to amend the Hindu Marriage Act, 1955 in order to usher in same-sex marriage. The court ruled that same-sex marriage is a matter for the Parliament of India to deal with and not the courts.[42]

In January 2020, two men from Kerala filed a suit in the state's High Court, arguing that prohibiting them from getting married was violating several provisions of the Constitution of India.[43]

Public opinion

Should same-sex marriage be legal? (2016)[44]

  Yes (35%)
  Against (35%)
  Don't know (30%)

According to a 2015 Ipsos poll, 29% of Indians supported same-sex marriage, while 18% supported other forms of legal recognition.[45] Among the 23 countries polled, India had the fifth lowest support for same-sex marriage, in front of only South Korea (27%), Turkey (27%), Poland (21%) and Russia (11%).

According to a 2016 poll by the International Lesbian, Gay, Bisexual, Trans and Intersex Association, 35% of Indian people were in favour of legalising same-sex marriage, while 35% were opposed to its legalisation.[44] A survey by the Varkey Foundation found that support for same-sex marriage was higher among 18 to 21-year-olds at 53%.[46]

A 2019 poll by Mood of the Nation (MOTN) found that 24% of Indians agreed with same-sex marriages, while 62% disagreed and 14% were undecided.[47][48]

In 2019, according to a survey of more than 200,000 users of the dating app OkCupid, 69% said "it was time to legalise same-sex marriage", 24% said they were contemplating the issue, while 5% were against it.[49]

See also

Notes
  1. Assamese: বিশেষ বিবাহ আইন, ১৯৫৪;[1] Bengali: বিশেষ বিবাহ আইন, ১৯৫৪;[2] Bodo: जुनिया बिहा आयेन 1954; Gujarati: સ્પેશિયલ મેરેજ એક્ટ 1954;[3] Kannada: ವಿಶೇಷ ವಿವಾಹ ಕಾಯ್ದೆ 1954;[4] Konkani: विशेष लग्न कयदो १९५४;[5] Maithili: विशेष विवाह अधिनियम १९५४; Malayalam: പ്രത്യേക വിവാഹ നിയമം, 1954;[6] Meitei: স্পেসিএল মেরিএজ এক্ট, 1954;[7] Marathi: विशेष विवाह कायदा १९५४;[8] Nepali: विशेष बिहा अधिनियम, 1954; Odia: ସ୍ୱତନ୍ତ୍ର ବିବାହ ଆଇନ, ୧୯୫୪;[9] Punjabi: ਸਪੈਸ਼ਲ ਮੈਰਿਜ ਐਕਟ, 1954;[10] Sindhi: اسپيشل ميرج ايڪٽ 1954ع‎; Tamil: சிறப்பு திருமணச் சட்டம் 1954;[11] Telugu: ప్రత్యేక వివాహ చట్టం, 1954;[12] Urdu: خصوصی شادی قانون، 1954ء‎
  2. Assamese: হিন্দু বিবাহ আইন, ১৯৫৫;[1] Bengali: হিন্দু বিবাহ আইন, ১৯৫৫;[13] Bodo: हिन्दू बिहा आयेन 1955; Gujarati: હિન્દુ મેરેજ એક્ટ 1955;[14] Kannada: ಹಿಂದೂ ವಿವಾಹ ಕಾಯ್ದೆ 1955;[4] Konkani: हिंदू लग्न कायदो १९५५;[5] Maithili: हिन्दू विवाह अधिनियम १९५५; Malayalam: ഹിന്ദു വിവാഹ നിയമം, 1955;[15] Marathi: हिंदू विवाह कायदा १९५५;[16] Meitei: হিন্দু মেরিএজ এক্ট, 1955;[7] Nepali: हिन्दू बिहा अधिनियम, 1955; Odia: ହିନ୍ଦୁ ବିବାହ ଆଇନ, ୧୯୫୫;[17] Punjabi: ਹਿੰਦੂ ਮੈਰਿਜ ਐਕਟ, 1955;[18] Sindhi: هندو ميريج ايڪٽ 1955ع‎; Tamil: இந்து திருமணச் சட்டம் 1955;[19] Telugu: హిందూ వివాహ చట్టం, 1955;[20] Urdu: ہندو شادی قانون، 1955ء‎

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  25. Homosexuality in India: Past and Present
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  27. US-based IIT grad marries gay partner in Maharashtra The Times of India, 13 January 2018
  28. Same sex marriage: Agra sees a different love story
  29. Joe Morgan (11 April 2014). "India 'party of the people' promises to legalise gay sex, marriage". Gay Star News. Retrieved 11 April 2014.
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  31. Triple Talaq: Ban this un-Islamic practice and bring in a uniform civil code
  32. One Nation, One Law: Why India Urgently Needs A Uniform Civil Code
  33. Uniform Civil Code in India
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  35. On uniform civil code, Law panel asks Muslim groups: Why deny some rights to women
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  37. Nobody has right to interfere if two adults get married, says Supreme Court The Times of India, 6 February 2018
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  39. Shakti Vahini vs Union Of India on 27 March 2018
  40. "No marriage needed for adult couple to live together: Supreme Court".
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  45. This Is How Many People Support Same-Sex Marriage In 23 Countries Around The World
  46. "Young people and free speech". The Economist. 15 February 2017.
  47. "Where is the love: 62 per cent Indians say same-sex marriages not accepted, finds Mood of the Nation poll". India Today. 25 January 2019.
  48. Sengar, Shweta (2 February 2019). "Prejudice Before Love? 62 Per Cent Indians Still Don't Approve Same-Sex Marriage, Finds Survey". India Times.
  49. Joshi, Sonam (15 June 2019). "Over 69 per cent Indians think gay marriage should be legalised, reveals survey". The Times of India.
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