Supreme Court’s Ruling on Same-Sex Marriages

  • 19 Oct 2023

On 17th October, 2023, the Supreme Court, in a 3-2 majority decision, announced that it does not endorse legal recognition for same-sex marriages.

Key Points

  • Constitution Bench Hearing: On May 11, a five-judge constitution bench, led by Chief Justice D Y Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and P S Narasimha, reserved its verdict on the pleas after an extensive 10-day hearing.
  • Advocacy for LGBTQIA+ Community: Advocates representing the petitioners, emphasized the equality rights of the LGBTQIA+ community.
  • They advocated for the recognition of unions that would enable LGBTQIA+ individuals to lead a "dignified" life similar to heterosexuals.
  • Government's Stance: In contrast, the Central government opposed the pleas, asserting that India's legislative policy intentionally validates unions exclusively between biological men and women.
  • On May 3, the government informed the Supreme Court of its intent to establish a committee headed by the cabinet secretary.
  • The committee's role would be to examine administrative measures addressing the "genuine concerns" of same-sex couples without delving into the issue of legalizing their marriages.

Legality of Same-Sex Marriages in India

Recognition of Marriage as a Statutory Right

  • The right to marry is not explicitly recognized as a fundamental or constitutional right under the Indian Constitution; instead, it is considered a statutory right.
  • Marriage in India is regulated through various statutory enactments, and its recognition as a fundamental right has evolved through judicial decisions of the Supreme Court.

Judicial Perspectives on Same-Sex Marriages

Marriage as a Fundamental Right (Shafin Jahan v. Asokan K.M. and others 2018)

  • The Supreme Court (SC) referred to Article 16 of the Universal Declaration of Human Rights and the Puttaswamy case to emphasize that the right to marry a person of one's choice is integral to Article 21 of the Constitution.
  • Article 16 (2) in the Indian constitution prohibits discrimination based on religion, race, caste, sex, descent, place of birth, residence, or any of them.
  • The right to marry is intrinsic to the liberty guaranteed by the Constitution as a fundamental right, allowing individuals to make decisions central to their pursuit of happiness.

LGBTQ Community Entitled to all Constitutional Rights (Navjet Singh Johar and others v. Union of India 2018)

  • The SC held that LGBTQ community members are entitled to the full range of constitutional rights, including liberties protected by the Constitution, and are entitled to equal citizenship and equal protection under the law.

Arguments in Favor of Same-Sex Marriage

Equal Rights and Protection under the Law

  • All individuals, regardless of sexual orientation, have the right to marry and form a family.
  • Same-sex couples should have the same legal rights and protections as opposite-sex couples.
  • Non-recognition of same-sex marriage amounts to discrimination that infringes upon the dignity of LGBTQIA+ couples.

Strengthening Families and Communities

  • Marriage offers social and economic benefits to couples and their families, which can also benefit same-sex individuals.

Cohabitation as a Fundamental Right

  • The Chief Justice of India acknowledged that cohabitation is a fundamental right, and the government should legally recognize the social impact of such relationships.

Biological Gender Not Absolute

  • The Supreme Court of India asserts that biological gender is not an absolute concept, and gender is more complex than one's genitals. There is no fixed definition of a man or a woman.

Global Acceptance

  • Same-sex marriage is legal in numerous countries worldwide, and denying this right in a democratic society contradicts global principles. It is recognized in 32 countries.

Arguments against Same-Sex Marriage

Religious and Cultural Beliefs

  • Many religious and cultural groups maintain that marriage should be limited to unions between a man and a woman.
  • Changing the traditional definition of marriage is perceived as conflicting with fundamental beliefs and values.


  • Some argue that the primary purpose of marriage is procreation and that same-sex couples cannot have biological children.
  • This viewpoint contends that same-sex marriage disrupts the natural order of things.

Legal Issues

  • Concerns arise about the legal complications associated with permitting same-sex marriage, including inheritance, taxation, and property rights. Adapting all laws and regulations to accommodate same-sex marriage may be deemed challenging.

Issues with Adoption of Children

  • The adoption of children by queer couples can lead to societal stigma, discrimination, and negative impacts on the child's emotional and psychological well-being, particularly in an Indian society where acceptance of the LGBTQIA+ community is not universal.