- 25-Dec-2024
- Family Law Guides
In India, the legal status and rights of LGBTQ+ couples under marriage laws have evolved significantly in recent years, particularly after the decriminalization of same-sex relations and the increasing recognition of LGBTQ+ rights. However, as of now, same-sex marriages are not legally recognized in India, and LGBTQ+ couples still face certain legal challenges.
As of now, same-sex marriage is not legally recognized in India. The Special Marriage Act and other personal laws governing marriage do not explicitly provide for marriage between same-sex couples. This means LGBTQ+ couples do not have access to the legal benefits and protections that married heterosexual couples receive under Indian marriage laws.
In 2018, the Supreme Court of India decriminalized Section 377 of the Indian Penal Code, which had previously criminalized consensual same-sex relations. This landmark judgment was a significant step toward the decriminalization of homosexuality, but it did not grant legal recognition to same-sex marriages.
Although LGBTQ+ couples do not have the right to marry, they still have certain legal protections and rights under Indian law.
In India, adoption laws do not explicitly allow for same-sex couples to adopt children. However, single individuals (including those from the LGBTQ+ community) may adopt under the Hindu Adoption and Maintenance Act (HAMA) or the Juvenile Justice Act, though the process can be challenging. Same-sex couples do not have the legal right to jointly adopt a child.
Since same-sex couples are not legally recognized as married under Indian law, inheritance and property rights are more complicated. A same-sex partner does not have automatic rights to inherit property unless explicitly named in a will. Similarly, they do not have rights to the other partner's estate or assets in the absence of a legal will.
India has strict laws regarding surrogacy, and commercial surrogacy is banned for foreign nationals, though Indian citizens can still avail of surrogacy services. However, the legal parentage of a child born through surrogacy is not automatically granted to same-sex couples. The legal parentage will depend on the specific circumstances, such as the biological connection of one of the partners to the child.
LGBTQ+ couples do not automatically have the legal right to make medical decisions on behalf of their partner in the event of an emergency or to be recognized as next of kin. However, they can make such decisions through powers of attorney or other legal documents.
There have been ongoing discussions and legal petitions for marriage equality in India. Various activists and LGBTQ+ organizations continue to advocate for the recognition of same-sex marriages. In 2023, a plea for legal recognition of same-sex marriage was heard by the Supreme Court, though no conclusive ruling has been made.
While same-sex couples still face challenges related to marriage, they are increasingly protected under anti-discrimination laws. In recent years, courts have granted various rights to LGBTQ+ individuals, such as protection against discrimination in employment and recognition of gender identity.
If an LGBTQ+ couple has been living together for several years, they may face difficulties when one partner passes away without a will. The surviving partner will not have any automatic inheritance rights over the deceased's estate. However, if the deceased partner had a legally drafted will that explicitly included the partner as a beneficiary, the surviving partner could inherit property or assets, despite the lack of marriage recognition.
In conclusion, while same-sex marriages are not yet legal in India, LGBTQ+ couples do have some legal protections and rights, especially in areas related to discrimination and personal identity. Advocacy continues for broader legal recognition of same-sex relationships, including the right to marriage and joint adoption. However, significant gaps remain in inheritance, adoption, and medical rights for same-sex couples in the current legal framework.
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