By Shreyasi Godse ~ Law College Dehradun, faculty of Uttaranchal University.


Humanity shall cease to exist if life and liberty which forms the bedrock of the modern civil society as also guaranteed by the Constitution of India enshrined under Article 21. Every individual has an equal right over sexual orientation which cannot be atrophied. Sexual orientation is an integral and innate facet of the identity of every individual. The article focuses on the rights of same-sex couples, who are still devoid of social and legal recognition in the society. To uphold the essence of constitutionalism it becomes necessary to protect the liberties of the individual.

Two years ago, the Supreme Court protected the liberties of the individuals of the LGBTQ community by scrapping Section 377 of IPC as a criminal offense in the case of Navtej Singh Johar v. Union of India[1], but it merely decriminalized homosexuality as it did not give any directives for the way forward. The statutes which govern the marriage laws, such as the Hindu Marriage Act, Hindu Succession Act, and other personal laws remain silent on legal recognition of same-sex marriages.

Denying same-sex marriage does a disservice to both the law and society. Thus, the Court in the case of Abhijit Iyer Mitra v. Union of India[2], where a Public Interest Litigation (herein after “PIL”)  is filed seeking recognition of same-sex marriage under the Hindu Marriage Act, should make the necessary provision to uphold equality and liberty.

Ancient Idea of Homosexuality

The human’s sexual desire towards same-sex is not something that developed in the modern civilization, whereas it dates back to the very advent of the civilization, which means from the early 1200 BC when the construction of Hindu temples through stones began which depicted the images of the erotic relationship between same-sex. The description of such relationships is also found in Rig Veda. The Kamasutra uses the term ‘Tritiya-Prakriti’ which defines men with sexual desires and describes practices in detail. The Hindu texts, Sushruta Samhita and Charaka Samhita also mention homosexuality.

In 1500 BC due to the emerging dominance of patriarchy, the suppression of homosexuality began. In Manusmriti there are references to punishments for gay and lesbian behavior. Homosexuality started losing significance with the advent of Vedic Brahmanism and British Colonialism. It was considered as unnatural at the time of the British era as was mentioned under Section 377 of The Indian Penal Code, 1860-

377. Unnatural offences- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with I [imprisonment for life] or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.[3]

In the year 1974 homosexuality ceased to be considered an abnormal behavior and was removed from the classification of mental disorder. The constant protest and fight of the LGBTQI for protection of their rights did bring change in the society as it also led to striking down of Section 377.

Need for Legal Recognition

The scrapping of Section 377 has merely protected the rights of homosexuals, the striking down of the same has only ceased it as recognized as a criminal offense of consensual same-sex acts, but it fails to provide legal recognition of long-term same-sex unions. The right under Article 14, which is of equality can be guaranteed when the homosexual couple will be treated the same and enjoy the same benefits as heterosexual couples. Article 19 and Article 21 will be guaranteed in a complete sense to homosexual couples when they would be recognized under law, in Shakti Vahini v. Union of India[4] and Shafia Jahan v. Asokan K.M[5] where it recognized that an individual’s exercise of choice in choosing a partner is protected under Article 19 and 21 of the Constitution as it is a feature of dignity.

Not recognizing homosexual couples legally keeps them devoid of legal benefits such as succession, maintenance, and pension rights which are available to married couples. Pension benefits that are available to family, defined under Section 2(g) of Employment Provident Fund Scheme,1952, and support to dependants, which is defined under Section 2(d) of Workmen’s Compensation Act,1923 requires recognition of homosexual couple as a family.

Role of Court

A PIL was filed for the recognition of same-sex marriage under the Hindu Marriage Act, 1955 on September 8, 2020. The petitioner pleaded on the ground that Section 5 of the Hindu Marriage Act states that marriage can be solemnized between any two Hindus-

5. Conditions for a Hindu marriage- A marriage can be solemnized between any two Hindus if the following conditions are fulfilled[6]

The provision itself suggests that any two Hindus can be solemnized, it nowhere mentions the gender distinction, although the Act assumes the parties as one man and the other a woman, but makes no explicit mention of the prohibition of the other party of the same sex.

The other condition required for the marriage is that the parties should not fall within the degrees of the prohibited relationship, which is mentioned under Section 3(g) of the said Act. In the present case the petitioners fulfill the said conditions, therefore is not subjected to any restrictions, hence same-sex marriage can be recognized under the Act.

The change in legislation could face a problem as marriages are governed by personal laws , change in one specific legislation would require amendments in others as well, reading down of statutes of other personal laws might create a hurdle.

The alternative to avoiding the amendments in personal laws is recognizing same-sex marriage under the Special Marriage Act,1954. The Special Marriage Act recognizes marriages as a civil union, it facilitates marriages between people of different religions and would not be bound by their personal laws. If made provision for same-sex marriages under this Act, the homosexual couple would then be able to enjoy similar benefits as that of heterosexual couples and would rule out the hurdles created due to the enactment of personal laws. The necessary amendment is required in Section 4(c) to provide for same-sex union.


The denial of same-sex marriage is a reinforcement of discrimination. In a country that encourages the idea of liberty and equality, dynamism according to society becomes necessary. Merely decriminalizing homosexuality will not end the insecurity and oppression among the LGBTQ community. Recognizing same-sex unions legally will have a catastrophic effect on social recognition, therefore legalizing same-sex marriage is inescapable.


[1] W.P.(Crl.) No.76 of 2016 D. No. 14961/2016

[2] W.P.(C) 6371/2020

[3] S.377, The Indian Penal Code, 1860

[4] Writ Petition (CIVIL)NO.231 of 2010

[5] SLP(Crl.)5777/17

[6] Section 5, Hindu Marriage Act,1955

Section 377- Decriminalized In Complete Sense?

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