Recognition of same-sex unions in India

The following acts cover India's marriage laws:

• The Indian Christian Marriage Act, 1872: regulates the marriage and divorce of Indian Christians. An ordained minister of a church or a marriage registrar may conduct marriages under the Act.

• Special Marriage Act, 1954:[lower-alpha 1] provides for marriage for all Indian citizens regardless of the religion of either party. Marriages contracted under this Act are registered with the state as a civil contract. The Act applies to partners of all religions or with no religious beliefs as well as interfaith couples.

• Hindu Marriage Act, 1955: governs matters of marriage, separation and divorce of Hindus according to Hindu custom and rites.

• Parsi Marriage and Divorce Act, 1936: regulates marriage and divorce for Parsis under Zoroastrian rites.

• Anand Marriage Act, 1909: governs marriage for Sikhs.

• Muslim Personal Law (Shariat) Application Act, 1937: deals with marriage, succession and inheritance among Muslims.

On 1 April 2022, MP Supriya Sule from the Nationalist Congress Party introduced a bill to the Lok Sabha to legalise same-sex marriage under the Special Marriage Act. The proposal would amend various sections of the Act to provide same-sex couples with the same legal rights as opposite-sex couples. The bill would fix the marriageable age at 21 for male couples and at 18 for lesbian couples.[29]

Further complicating matters, the states and union territories of India have their own laws with regards to the registration of marriages and marriages contracted under indigenous customs and rites. In February 2006, the Supreme Court ruled in Smt. Seema v. Ashwani Kumar that the states and union territories were obliged to register all marriages performed under the federal laws. The court's ruling was expected to reduce instances of child marriages, bigamy, cases of domestic violence and unlawful abandonment.

In August 2009, Governor Surjit Singh Barnala of Tamil Nadu assented The Tamil Nadu Registration of Marriages Act, 2009, which complied with the Supreme Court ruling. The Act defines marriage as "all marriages performed by persons belonging to any caste or religion under any law for the time being in force, or as per any custom or usage in any form or manner and also includes remarriage".[30] Laws were also passed in other states: the Kerala Registration of Marriages (Common) Rules, 2008 in Kerala, the Andhra Pradesh Compulsory Registration of Marriages Act, 2002 in Andhra Pradesh, the Karnataka Marriage (Registration and Miscellaneous Provisions) Rules, 2006 in Karnataka, the Gujarat Registration of Marriages Act, 2006 in Gujarat, the Manipur Compulsory Registration of Marriages Act, 2008 in Manipur, etc.

The state of Goa is the only state to have a unified marriage law. Every citizen is bound to the same law regardless of their religion.[31] However, the Goa Civil Code, largely based on Portuguese civil law, defines marriage as a "perpetual contract made between two persons of different sex with the purpose of legitimately constituting a family". The code is also applicable to the union territory of Dadra and Nagar Haveli and Daman and Diu.

The Mizo Marriage, Divorce and Inheritance of Property Act, 2014,[lower-alpha 2] enacted by the Mizoram Legislative Assembly, provides for marriage, divorce and inheritance rules among the Mizo people, allowing marriages performed under Mizo customs to be legally recognised in the state. The Act defines marriage as "a union of a man and a woman who are both major as husband and wife".[32]

In 2017, a draft of a Uniform Civil Code to legalise same-sex marriage was published.[33] Under the proposed code, marriage was defined as "the legal union as prescribed under this Act of a man with a woman, a man with another man, a woman with another woman, a transgender with another transgender or a transgender with a man or a woman". A partnership was similarly defined as the "living together of a man with a woman, a man with another man, a woman with another woman, a transgender with another transgender or a transgender with a man or a woman". It also provided that any two persons who have been in a partnership for more than two years shall have the same rights and obligations as married couples, and mandated that all marriages be registered with the state. In addition, the draft stated that "all married couples and couples in a partnership are entitled to adopt a child. The sexual orientation of the married couple or the partners are not to be a bar to their right to adoption. Non-heterosexual couples will be equally entitled to adopt a child." Finally, the code provided for the repeal of all of India's marriage-related laws (the Hindu Marriage Act, the Hindu Succession Act, the Muslim Personal Law (Shariat) Application Act, The Indian Christian Marriage Act, among others). The draft was submitted to the Law Commission of India for consideration.

Whether India should adopt a Uniform Civil Code is a matter of ongoing political debate.[34] The Bharatiya Janata Party (BJP) supports a Uniform Civil Code and was the first party in India to do so.[35] The Law Commission began soliciting public views and requests on the issue on 19 March 2018, and later extended the deadline for opinions to 6 May 2018.[36] Muslim groups oppose a uniform civil code because such a code would ban triple talaq, polygamy and would not be based on Sharia law, unlike the current Muslim personal law, which governs Indian Muslims.[37] The Law Commission of India stated on 31 August 2018 that a Uniform Civil Code is "neither necessary nor desirable at this stage" in a 185-page consultation paper.[38] In February 2020, Union Minister Ravi Shankar Prasad said that "presently there is no proposal to legalise same-sex marriage", adding that the Union Government was not considering the issue.[39]

Following the Supreme Court of India's ruling in Navtej Singh Johar v. Union of India in September 2018, decriminalising homosexuality in India, several lawsuits have been filed across the country to address the marriage rights of Indian same-sex couples. The Madras High Court ruled in April 2019 that transgender women are allowed to marry under the Hindu Marriage Act, 1955.[40]

In July 2019, the Delhi High Court dismissed a legal challenge brought forward by advocates Tajinder Singh and Anurag Chauhan seeking directions to make rules and regulations to recognise same-sex marriages under the Hindu Marriage Act, 1955.[41] In April 2022, the Allahabad High Court similarly dismissed a case brought by a Hindu lesbian couple who wished to marry under the Act. The court also dismissed a habeas corpus claim brought by the mother of one of the women.[42][43]

In 2019, two women from Hamirpur, Uttar Pradesh tried to get their relationship recognised as a marriage at the local registrar's office, who refused citing lack of relevant legal provisions. The couple's lawyer, Daya Shankar Tiwari, said they would challenge the registrar's decision.[44] In January 2020, Sonu MS and Nikesh Pushkaran, filed a lawsuit in the Kerala High Court, arguing that preventing them from getting married under the Special Marriage Act violates the principle of equality, non-arbitrariness, non-discrimination, individual dignity and personal autonomy under Articles 14, 15(1), 19(1)(a) and 21 of the Constitution of India.[45][46]

In March 2018, the Indian Supreme Court, in the case of Shakti Vahini v. Union of India, held that an adult has the fundamental right to marry a person of their choice. In this case, which centred on the practice of honour killings, most often performed by family members when a person chooses to marry outside of their caste or religious group, the court ruled that "the choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. True it is, the same is bound by the principle of constitutional limitation but in the absence of such limitation, none, we mean, no one shall be permitted to interfere in the fructification of the said choice. If the right to express one's own choice is obstructed, it would be extremely difficult to think of dignity in its sanctified completeness." LGBT activists feel that a joint reading of Shakti Vahini and Navtej Singh Johar, could yield the recognition of same-sex unions within the Special Marriage Act, 1954.[47][48]

Petitioners Abhijit Iyer Mitra, Gopi Shankar Madurai, Giti Thadani and G. Oorvasi filed Abhijit Iyer Mitra & Ors v. Union of India in the Delhi High Court in 2020 asserting a right to marriage for same-sex couples under the Hindu Marriage Act, 1955 (HMA). "[S]aid Act does not distinguish between heterosexual and homosexual marriage if one were to go by how it has been worded. It very clearly states that marriage can indeed be solemnised between 'any two Hindus'. In this view of the matter, it can be stated that it is against the constitutional mandate of non-arbitrariness if the said right is not extended to homosexual apart from heterosexual couples," the petition, represented by lawyers Raghav Awasthi and Mukesh Sharma, said. The petition seeks a declaration stating that Section 5 of the HMA does not distinguish between homosexual and heterosexual couples and the right of same-sex couples to marry should be recognised under the Act. In November 2020, the Delhi High Court asked the Union Government to file an official response to the petition.[49]

In October 2020, a lesbian couple, medical practitioners Kavita Arora and Ankita Khanna, filed a lawsuit, Dr Kavita Arora & Anr v. Union of India,[50] with the Delhi High Court seeking a declaration that the Special Marriage Act, 1954 (SMA) ought to apply to couples irrespective of gender and sexual orientation. The petitioners, represented by senior advocate Maneka Guruswamy and lawyers Arundhati Katju, Govind Manoharan and Surabhi Dhar, contend that the SMA in denying recognition of same-sex marriages constitutes an infringement of Articles 14, 15, 19 and 21 of the Indian Constitution. The couple asserts that Articles 19 and 21 of the Constitution of India protect the right to marry a person of one's choice, and this right should apply to same-sex couples, just as it does to opposite-sex couples. The petitioners also contend that the exclusion of same-sex marriage from the SMA violates Article 14 and 15 of the Constitution pursuant to the Supreme Court's decision in Navtej Singh Johar v. Union of India that sexual orientation and gender identity are protected under the fundamental right of equality.[51][52] Because they are unable to marry, the couple cannot own a house together, open a bank account or access family life insurance.[53] The High Court sought responses from the Union Government on the plea.[49]

In Vaibhav Jain & Anr v. Union of India, two gay men, Vaibhav Jain and Parag Vijay Mehta, who married in Washington, D.C. in 2017, contend that the Foreign Marriage Act, 1969 should be perused to apply to same-sex relationships and is unconstitutional to the extent that it does not recognise the same. The High Court asked the Union Government and the Consulate General of India in New York City to respond to the petition.[49]

The Delhi High Court set a hearing for all three petitions on 8 January 2021. On that day, Justices Rajiv Sahai Endlaw and Sanjeev Narula granted "one last opportunity" to the Union Government to file official responses to the three petitions.[54] The court scheduled further deliberations for 25 February 2021. The Union Government is represented by Solicitor General Tushar Mehta. On 25 February, the government asked the Delhi High Court to dismiss the cases, arguing in its response that marriage is based on "age-old customs, rituals, practices, cultural ethos and societal values" and that there thus exists a "legitimate state interest" in preventing same-sex couples from marrying.[55][56] A fourth petition, Udit Sood and Ors. v. Union of India and Anr, was filed in February 2021. The petitioners, three men and one woman, represented by advocates Meghna Mishra and Tahira Karanjawala, are asking the court to declare that the SMA applies to any two persons who wish to marry regardless of sex. Justices Rajiv Sahai Endlaw and Amit Bansal asked the government to respond to the petition.[57] On 24 May 2021, the government asked the court to delay deliberations on the four petitions, stating that "nobody is dying because of the lack of marriage registration" and that the government's focus were on "urgent and immediate" pandemic-related issues.[58][59] A fifth petition, Joydeep Sengupta v. Union of India & Ors, was filed by Joydeep Sengupta, an Overseas Citizen of India (OCI), and his American partner Russell Blaine Stephens in July 2021. The couple argues that the Citizenship Act, 1955 does not distinguish between different-sex and same-sex spouses and that the same-sex spouse of an OCI should be eligible to apply for an OCI card. The plea further claims that the Foreign Marriage Act violates Articles 14 and 21 of the Constitution of India in excluding the recognition of foreign same-sex marriages.[60] On 6 July 2021, the division bench of Chief Justice Dhirubhai Naranbhai Patel and Justice Jyoti Singh listed the petitions for hearing on 27 August.[61]

On 25 October 2021, the High Court granted time for the petitioners to file replies and rejoinders to the government's arguments. It set a final hearing for 30 November.[53] Instead, that day, advocates representing the couples asked that the proceedings be live streamed, arguing that "the issue at hand before this [Honourable Court] is of such magnitude and ramification, that live streaming of the said proceedings shall not only have a larger outreach but also help in spreading awareness". On 31 March 2022, Acting Chief Justice Vipin Sanghi and Justice Navin Chawla ordered the government to respond within two weeks to the application seeking live streaming of the proceedings.[62] The hearing was moved to 17 May 2022.[63]