SAME SEX MARRIAGE: A TABOO IN INDIA

Abstract
This paper throws light on the past and present conditions of the new concept of same sex
marriage across the globe and deals with legal perspective pertaining to it. There has always
been dual aspect to any change or evolution. The concept of same sex marriage is also like
two sides of a coin where some agrees while there will be certain group of people who will
oppose the concept. Other countries started legalising same sex marriage as early as in 2001
but what about the country like India and its views on same sex marriage? How was this
concept dealt in historical times? Especially, in the country like India where marriage is a
big deal involving rights and duties and statutory laws as per definition and purpose of
marriage there must be some interventions between the existing provisions and newly
observed concept. The paper attempts to answer these questions and explores condition of
India by comparing foreign laws and the judicial trend of Supreme Court of India and tries
to reach every possible pragmatic approach to eradicate the problem faced by such couples.

Introduction
In the recent decade, homosexuality has been a growing issue in India as voices has been
heard raising the demand of legal recognition of same-sex marriage. Same sex marriage does
not only deal with marriage of the particular community of gay or lesbian but also ensures the
rights which historically they are denied of. The issue has been brought in for consideration
and left on the judicial bodies to decide whether such couples should be given such privileges
or not if legislators or parliament or any law making body of country does not introduce such
rights. It is okay to think that other countries might legalise this marriage but in country like
India where public policy and societal impacts play major role in every other law, will it not
be violation of what the sources of Hindu law advocated it to be.
Prosperous countries like United States declared same sex marriage as legal on June 26, 2015
in its landmark judgement when Supreme Court of US allowed same sex couples to
marry.1The five judges prevailing over four judges (nine judge bench) could be said to follow
European countries and its favourable laws for legalising same sex marriage. The history
owes to what LGBT communities have been deprived of.
To elaborate on such outcomes the paper discusses related terms with special emphasis on the
rights of same-sex couples. Firstly, it deals with history of same sex marriage. History
1
Obergefell Vs Hodges, 135 S. Ct. 2584 (2015)

1
includes some evidence of attraction of same sex in earlier ages not for the purpose of
marriage but for other purposes as per the wants of Nawabs or rulers of the particular time.
This also includes history in comparison to India. Secondly, it analyzes the global landmark
judgements or statutory provisions in the respective countries which legalised same sex
marriage based on their requirements. This also discusses the Indian landmark judgement
which attempts to answer why India is not yet recognised as a country which legally allows
same sex marriage. Thirdly, the paper deals with defining marriage and its provisions in other
countries as well as India. This is detailed on Section 377 of Indian Penal code which
criminalises unnatural sex. The part also discusses in detail the judgement of Navtej Singh
2
Johar Vs UOI and fundamental rights of homosexuals attached to it. The paper also
discusses in brief about the definition of marriage argument in Virginia Law Review3.
Homosexuals claimed that not legalising their marriage, they are being bereft of many
benefits and privileges that other hetero sexual couples enjoy. They claimed not legalising
their marriage is violating Article 14, 15, 19 and 21 of the Constitution of India. The apex
court has decriminalised homosexuality in Navtej Singh Johar vs. UOI but yet to recognise
the legal validity of homosexual marriages. And providing them rights at par other
heterosexual couples. This is true that India remains a conservative country in such matters as
the society is not liberal. But it is duty of judiciary to uphold the rights of homosexuals. On
one hand, same sex marriage is in line with fundamental rights as well as basic human rights
but on the other hand, it is in contradiction with tradition and culture of India.

History of Same sex marriage

History is divided according to different time slots divided on the basis of their era.A very
early evidence of pictures depicting love and companionship between two men. Generally it
was an option available to wealthy or men in power.4Even indigenous people were duly
respected for being “two-spirited” people and filling gaps between men and women. Some
tribes emphasised on being a part of the tribal community only if they were heterosexual 5.
The fact was eventually followed by women for circumstances like being widow and

2
W.P. (Crl.) No. 76 of 2016 D. No. 14961/2016
3
William N. Eskridge, A history of same sex marriage [79 Va. L.Rev.:1493] 1993
4
Available on https://www.themonastery.org/history-same-sex-marriage, history of same sex marriage, last
visited on April 4, 2020
5
Many Native American tribes had a concept of what they called “two-spirited” people; those with both
maleness and femaleness. While this encompassed gays and lesbians, it more broadly covered any sexual
minorities, including intersexual individuals. The “two-spirited” were often respected for their unique
perspectives, seen as bridging the gap between men and women.
Ibid

2
disinterested in marrying another man.6In fact it can be detailed in three parts each consisting
of its subparts.
Earliest part is called pre-modern west culture which is divided into three parts:Egypt and
Mesopotamia where there are poses of two men being intimate, holding hands with nose
being touched in early 2375 B.C.7; next one was period of Classical Greece period Classical
Greece period where there were numerous philosophers and opined according to their view
and lesbian marriage culture was evident8; and the last period of Christian Roman extended
till thirteenth century where there were two sided belief on same sex marriage being valid or
not because of the fact that it being non sacramental and unable to reproduce 9.
Then comes the part called Non-Western culture of Native American in fifteenth century
where it expanded woman’s range of options10; African cultures includes transgender
communities similar to Native Americans11; Asian cultures including hijras of India,
companionate unions of China and other communities all with their own beliefs and laws12.
The modern history describes about Modern west in whichin which male couples being
married in Rome in the 1570s were burned and called threats to society 13; The most
interesting ways in which same-sex unions have persisted have been those institutions that
have undermined lines of gender identification in the modern era 14;the early 1950s marked
disclosing genders openlybe it gay, lesbian, transgender or any other and insisted on
recognising their marriage landing us back to the starting point and being accepted or denied
by set of people15.
When the history is traced in relation to India, particularly, it dates back to period of 1500BC
where monasteries and pictures reveal attractions of women towards women and men
towards men. The sculptures also show that sexual act was based on pleasure and fertility.
There were also evidence in Kamasutra, Muslim Nawabs and other aristocratic class of

6
Ibid
7
Supra note 3, 79 Va. L.rev 1437
8
Ibid, Va.L.rev 1441
9
Ibid, 1447
10
Ibid, at 1458
11
Ibid
12
Ibid, at 1464
13
Ibid, at 1472
14
Ibid, at 1474
15
Ibid, at 1484

3
people.16 Involving sodomy in tantric works is also seen. 17Aryans were of belief in patriarchal
society and apparently they put an end to this with their force18.

Evolution of Same-sex marriage across the globe

Currently there are somewhere 30 countries where same sex marriage has been legalised
which includes practising, performing and adopting children. Though it is available across the
globe according to the needs arising in front of the law making bodies of countries. Most of
the countries which legalised it are European.
Netherlands in year 2001 legalised gay marriage and became the first country to legalise it in
its landmark bill and was passed with three-to-one margin and the statute states “A marriage
can be contracted by two people of different or the same sex.”19In 2003, Belgian parliament
granted same tax and inheritance rights as heterosexual couples and legalised same sex
marriage. In 2005, federal and provincial govt. allowed same sex marriage legal in Canada.
The countries which followed in sequence are: Spain(2005), South Africa(2006),
Norway(2008),Sweden(2009), Iceland(2010), Portugal(2010), Argentina(2010),
Denmark(2012), Uruguay (2013), New Zealand(2013), France(2013), Brazil(2013),
UK(2013), Scotland(2014), Luxembourg(2014), Finland(2015), Ireland(2015), Greenland
(2015),United States(2015), Colombia(2016), Germany(2017), Malta(2017), Australia(2017),
Austria(2019), Taiwan(2019), Ecuador(2019). European unions mostly emphasised on
legalising same sex marriage in all its European countries and shifted public opinion and
helped forming a different public policy.20

16
Available on http://www.legalserviceindia.com/articles/semar.htm, last visited on April 4,2020
17
Ibid
18
Gita claims that Aryan invasion dating to 1500 B.C began to suppress homosexuality through the emerging
dominance of patriarchy . In the Manusmriti there are references to punishments like loss of caste, heavy
monetary fines and strokes of the whip for gay and lesbian behaviour. In the case of married women, it is
mentioned that 'luring of maids' is to be punished by shaving the women bald, cutting of two fingers and then
parading her on a donkey.
Ibid
19
Available on Available on https://www.pewforum.org/fact-sheet/gay-marriage-around-the-world/ , last visited
April 04,2020
20
In 2003 the European Union mandated that all of its members pass laws recognising the same-sex marriages of
fellow EU countries. As countries began to legalise same-sex partnerships,public opinion, particularly in
Europe, began to shift in favour of full marriage rights for same-sex unions. For example, by the middle of the
first decade of the 2000s, a Eurobarometer poll (carried out by the European Commission) found that four-fifths
of the citizens of the Netherlands felt that same-sex marriage should be legal throughout Europe; in a further
seven countries (Sweden, Denmark, Belgium, Luxembourg, Spain, Germany, and the Czech Republic), a
majority held a similar view. Nevertheless, in other parts of Europe, particularly central and southern Europe,
support for same-sex marriage was quite low, often with fewer than one-fifth of those polled favouring
legalisation. By the following decade, polls indicated that roughly one-half of British citizens approved of
legalising same-sex marriage in the United Kingdom; such marriages were legalised in England and Wales in
2013, and Scotland followed suit in 2014.

4
It is important to notice that there have been legislative bodies mostly for initiating the
change in laws while in some cases it has been judicial decision. It is important to consider
ancient cases of United States which finally brought the change in its landmark judgement in
2015. Then it is to be compared to Indian judicial pattern of judgement and determine the
difference or similarity between USA and India.
In 1967, the first case of Loving Vs Virginia21, Virginia banned interracial marriage because it
violated Fourteenth Amendment. Then the court also did not favour on the rights of gay
marriage in Baker Vs Nelson22in year 1971. Further in 1999, Baker Vs Vermont23was the case
which legalised same sex marriage in the state of Vermont in 2009 with approval of state
legislatures. The SC in 2003 came up with the case Lawrence Vs Texas24, here sodomy
between homosexual was considered to be unconstitutional because it hinders privacy 25. With
another 2003 case Goodridge Vs Dept. of public health 26, Massachusetts became first state
allowing gay marriage on equality basis. But in 2006 Lewis Vs Harris27allowed same sex
couples similar rights to heterosexual couple but not the status of marriage28.
All these judgements kept in mind and the SC of US legalised same sex marriage in its
landmark judgement called Obergefell Vs Hodges29which was a nine judge bench. The 5:4
judgement legalised the concept in USA. Justice Kennedy also states:
“It would misunderstand these men and women to say they disrespect the idea of marriage.
Their plea is that they do respect it, respect it so deeply that they seek to find its fulfilment for
themselves."30
Similar evolution is evident in India when the first landmark judgement of Naz Foundation
Vs Govt. of NCT Of Delhi31states:
“…We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults
in private, is violative of Articles 21, 14 and 15 of the Constitution.”

Available on https://www.britannica.com/topic/same-sex-marriage/Same-sex-marriage-and-the-law last visited

April 04,2020
21
388 U.S. 1 (more) 87 S. Ct. 1817; 18 L. Ed. 2d 1010; 1967 U.S. LEXIS 1082
22
291 Minn. 310, 191 N.W.2d 185 (1971)
23
744 A.2d 864 (Vt. 1999)
24
539 U.S. 558
25
Available on https://www.nytimes.com/interactive/2015/06/26/us/samesex-marriage-landmarks.html, last
visited April 04,2020
26
798 N.E.2d 941 (Mass. 2003)
27
188 N.J. 415; 908 A.2d 196 (2006)
28
Supra, at 28
29
Supra , at 1
30
Ibid
31
(2009) 111 DRJ 1

5
But another judgement in year 2014 was of Suresh Kumar Kousbal&Anr. Vs Naz Foundation
and Others32which lays down: “we hold that Section 377 IPC does not suffer from the vice of
unconstitutionality and the declaration made by the Division Bench of the High court is
legally unsustainable.”33
This means that India does not recognise the same sex marriage as valid.
Thus the last one overruled the other and it is a matter of grave concern when the landmark
judgement overruled the last judgement called Navtej Singh Johar Vs Vs UOI34in year
2018and decriminalised gay sex making it legal. The judgement was a five bench judgement
and upheld what is the need of hour.
The honourable judgement includes examination and decision based on what is best for
public and within the interests of public policy. India is a country with vast population and
limitless religions and beliefs and within that boundary what is best comes here. It is to be
noted that decriminalising homosexuality does not add on to making the country where same
sex marriage is legal. In fact, it is illegal in India.

Concept of Marriage and Same-sex marriage- A contradiction?

A. Provisions in other countries
B. Provisions in India
“Homosexuality is a taboo in India. In recent years, however, the attitude of people towards
homosexuality have shifted slightly. Several organisations, including the Naz Foundation
(India) Trust, the National AIDS Control Organisation, Law Commission of India, Union
Health Ministry, National Human Rights Commission of India and the Planning Commission
of India have expressed support for decriminalising homosexuality in India, and pushed for
tolerance and social equality for lesbian, gay, bisexual, and transgender people.”35

“Marriage” as defined in Lexicon Dictionary is ‘the state of being united as spouses in a

consensual and contractual relationship recognised by law’.
Of course the early case of X Vs Hospital Z36, declared marriage as sacred union and between
two healthy bodies of opposite sex but the strict interpretation of the law laid down in the
case is not appreciated because the issue was not to determine the legality of same sex
32
(2014) 1 SCC 1
33
Ibid, see para 54
34
W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016
35
Available on https://m.timesofindia.com/topic/same-sex-marriage/ampdefault , last updated April 04,2020;
last visited April 05, 2020
36
(1998) 8 SCC 296

6
marriage but conditions and purpose of marriage. The only shortfall traditional arguments
are:
“Same sex marriage (1) is inconsistent with nature, history and/or essence of marriage, (2) is
contrary to community values and traditional moral teachings, (3) would be disruptive to
settled expectations.”37Other scholars have also commented as strict interpretation of words
of traditional definitions but Krige-leach approach to define marriage has been accurate lately
as it states that marriage can take place in different forms and even in same sex involving
different rights and duties38.
Provisions of different countries have never traditionally been in support of same sex
marriage but evolution took place and it would be wrong to say that countries which have not
yet legalised the concept of same sex marriage is wrong on their terms. They could be in
process or it must be difficult for their public policy to adopt this change. Till now at least 28
countries have legalised it and this is a good sign.
India, on other hand, is in partial state right now. Let us look at the provisions which are
affected by this concept. For this it is essential to broadly discuss the landmark judgement of
Navtej Singh Johar Vs UOI39.
Essentially Section 377 of Indian Penal Code lays down “Unnatural offences.—Whoever
voluntarily has carnal intercourse against the order of nature with any man, woman or
animal, shall be punished with 1[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.”
This is clearly evidently that sexual acts between same sex would be diverging from what
statue says and therefore violation. In Navtej Singh’s judgement SC decriminalised the
offence in a five judge bench. It kept in mind all the other provisions which were questioned
by petitioners. They also claimed that the arguments are different from all the previous cases
which arose in India. This vaguely included Article 14, 15,19(1)(a),21 of Indian Constitution,
1950. It also questioned validity of Section 377 of IPC as previously mentioned.
Article 1440talks about right to equality and equal protection of law. Equality means equal
protection of rights and equal representation in the eyes of law. It was rightly pointed out by
Justice Indu Malhotra in the judgement ‘Homosexuality- Not an aberration but a variation of
sexuality’ and she also stated ‘section 377 if applied to consenting adults is violative of
article14.’ It is to note that there was no intelligible differentia in ways which same sex
37
Supra note 3, see illegitimacy of traditional legal arguments against same sex marriage[79 Va. L.rev 1493)
38
Ibid, (1497)
39
Supra note 37
40
The constitution of India, 1950

7
couples were distinguished and rational nexus could not be established, thus violative of
Article 14. Hence, homosexuals’ couples are entitled to get legal recognition of marriage
Article 1541prohibits state from discrimination to any individual on basis of religion, race,
caste, sex or place of birth. It was appropriately pointed out that “The LGBT community is a
sexual minority which has suffered from unjustified and unwarranted hostile discrimination,
and is equally entitled to the protection afforded by Article 15.” sexual orientation is a
ground analogous to sex and that discrimination on the basis of sexual orientation is not
permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal
application of rights. In other words, it even prohibits discrimination of one citizen by another
in matters of access to public spaces. In our view, discrimination on the ground of sexual
orientation is impermissible even on the horizontal application of the right enshrined under
Article 15.42
Article 19(1)(a)43 guarantees freedom of expression to all citizens. It is rightly pointed that
“LGBT persons express their sexual orientation in myriad ways. One such way is
engagement in intimate sexual acts like those proscribed under Section 377.”
Furthermore, Article 2144which guarantees right to life and personal liberty. Right to
dignified life is a fundamental right intrinsic to the quality of individual life and not even the
state can take away these rights. Homosexual’s right to marriage is not important in their
demand of equality and dignity but also, we may not able to achieve a society with equal
social and legal rights given to each individual. Right to dignity also includes legal
recognition of one’s marriage.
Moreover, It is obvious that sexual acts are a matter of grave privacy. The judgement clearly
states “Section 377 affects the private sphere of the lives of LGBT persons. It takes away the
decisional autonomy of LGBT persons to make choices consistent with their sexual
orientation, which would further a dignified existence and a meaningful life as a full
person.”In this regard the case of K.S. Puttaswamy Vs UOI45is important for consideration
which laid down and states that right to privacy has more meaning than be left alone. Instead
it signifies spatial privacy, decisional privacy and privacy of choice making S.377 violative
of Article 377.

41
Ibid
42
Naz Foundation v. Govt(NCT of Delhi), 2009 SCC OnLine Del 1762.at 47
43
Ibid
44
Ibid
45
(2017) 10 SCC 1

8
The other provisions affected by validity of S.377 is rectified and thus the Navtej Singh case
considered that decriminalisation of homosexuality violates Article 14,15,19(1)(a) and 21 of
the Constitution.
Other rights of LGBT which are violated might be taken into consideration and decided as
per the facts and circumstances of the case whatever arises but mainly these provisions were
considered and hence S.377 is held unconstitutional but same sex marriage is not yet
legalised in India. Still, the lawmakers have not taken any step to give legal status to their
marriage. Any form of discrimination based on sexual orientation is arbitrary and
unreasonable. Non recognition of same sex marriage in the grab of myths and prejudices
prevalent in Indian society is against constitutional standard of morality. No doubt,
homosexuals are progressing from the last few years challenging the binary norm that
marriage is a union of man and woman but many more steps are still needed.
Conclusion
The world is full of changing concepts. What may be lawful at a period of time may not be
followed after sometime. Well the answer to it lies on public policy and law makers and the
same is evident with the revolutionary concept of same sex marriage. History is the evidence
of smooth working and acceptance of homosexuality in the society. The disturbance with
biological endowments is premonition to eating rights of community of people who practice
same sex marriage. Currently, 28 countries across the globe have legalised this concept. It
would be wrong to say that they lag behind the countries that have legalised it. It is wholly on
the public policy and societal beliefs of the countries to legalise it. The law makers are well
aware of this. There might be countries that are in process of legalising it wholly or partially,
like in India, where the judgement of Navtej Singh Johar Vs UOI46decriminalised
homosexuality but not yet legalised same sex marriage and struck the validity of Section 377
of IPC. It also stated the criminalization of homosexuality infringe Article 14, 15, 19(1)(a)
and 21 of the Constitution of India. It is important to notice that country like USA faced
challenges equal to India but it legalised same sex marriage while India dis not. In my
opinion, it is essential for India to emphasise on the LGBT rights which we owe them since
people of the country itself are responsible for eating their social rights. At least countries
where homosexuality is legal now, they should be granting equal opportunities and rights
towards such people and spread the ideas outwards. Accordingly, the definition of marriage is
too narrow to cover ambit of same sex marriage in its traditional definition but it is also to be
noted that countries which legalised this concept of marriage has not referred strictly to
46
Supra note 37

9
definition of marriage. In fact, same sex marriage is too a type of marriage depending on the
perspective of different countries. Legalising same sex marriage in India should be a next
step of Indian law makers which leaves us in an agog.

10