Can Same-Sex Couples Marry Under Indian Law?

As of now, same-sex marriage is not legally recognized in India. While there has been significant progress in terms of decriminalizing same-sex relations, the legal framework for the formal recognition of same-sex marriages remains absent.

Legal Status of Same-Sex Marriage in India:

1. Decriminalization of Homosexuality: In 2018, the Indian Supreme Court decriminalized consensual same-sex relations by striking down Section 377 of the Indian Penal Code, which had criminalized sodomy and unnatural sexual acts. This ruling was a significant victory for LGBTQ+ rights in India, as it allowed adults in same-sex relationships to live without fear of prosecution.
2. Marriage and Civil Union: Despite the decriminalization of same-sex relationships, same-sex marriage is not yet recognized under Indian law. There is no specific provision for same-sex couples to marry, and personal laws related to marriage, inheritance, and adoption are typically structured to apply to opposite-sex couples. In 2023, a petition was filed in the Indian Supreme Court asking for the legal recognition of same-sex marriage, but the issue is still under judicial consideration. Some legal experts and activists argue that the Right to Equality and Right to Life enshrined in the Indian Constitution should extend to same-sex couples, thus granting them marriage rights. However, the current law does not explicitly recognize such marriages.
3. Social and Legal Challenges: While same-sex couples can now live together without fear of legal consequences, they do not have access to the same legal protections and benefits as heterosexual married couples. These include rights related to:
   • Inheritance and property
   • Adoption of children
   • Spousal benefits, such as those offered under government schemes or private insurance plans
   • Tax benefits
4. Court Proceedings and Future Outlook: The Indian Supreme Court is actively reviewing cases regarding marriage equality. In the past, there have been calls for either a civil union or full recognition of same-sex marriages. However, social, cultural, and religious factors still play a significant role in delaying progress on the issue.

Example

A same-sex couple living in India may cohabit and enjoy the legal protections against discrimination in public spaces (post-Section 377 verdict). However, if one of the partners were to pass away, the surviving partner would not automatically inherit the deceased’s assets or be recognized as a legal heir, unless specifically designated in a will or through legal arrangements.