Same-sex marriage refers to the legal union of two individuals of the same gender, granting them the same legal rights and privileges as opposite-sex couples. However, the recognition and acceptance of same-sex marriage vary significantly across different countries and cultures.

In India, same-sex marriage is not legally recognized, and homosexuality was only decriminalized in 2018. The country's long history of social and cultural resistance towards LGBTQ+ rights has contributed to the lack of progress in legalizing same-sex marriage.

This article aims to explore the legal and social status of same-sex marriage in India and compare it with other countries. We will examine the social and cultural factors that have shaped attitudes towards same-sex marriage in India and analyze the potential impact of legalizing same-sex marriage on society.

Furthermore, we will discuss the current status of the legal battle for same-sex marriage in India, including the government's opposition and the ongoing struggle for LGBTQ+ rights in the country.

The Legal Landscape for Same-Sex Marriage in India
India's legal landscape for same-sex marriage is complex and uncertain. While the Indian Constitution guarantees equal rights and non-discrimination based on gender, it does not explicitly recognize same-sex relationships. The Hindu Marriage Act defines marriage as a union between a man and a woman[1], and the Special Marriage Act does not extend to same-sex couples.[2]

The legal framework for same-sex marriage is based on the Indian Penal Code, which criminalized homosexuality until 2018 when the Indian Supreme Court decriminalized same-sex relations in the landmark Navtej Singh Johar case[3]. While the judgment was a significant victory for LGBT rights activists in India, it did not legalize same-sex marriage.

However, legal scholars argue that the Indian Constitution recognizes the right to equality, non-discrimination, and privacy, which could include the right to marry a person of one's choice, regardless of gender which also has precedence in many cases[4]. Despite this, the Indian government has yet to take steps to legalize same-sex marriage or provide legal recognition to same-sex couples.

Recent years have seen several legal battles and activism efforts aimed at legalizing same-sex marriage in India. The Navtej Singh Johar case was one of the most prominent, in which a group of LGBT activists challenged the constitutionality of Section 377 of the Indian Penal Code, which criminalized same-sex relations. The Supreme Court's landmark judgment struck down the provision and held that sexual orientation was an integral part of the right to privacy and personal liberty under the Indian Constitution.[5]

However, same-sex marriage remains unrecognised in India, and LGBT individuals continue to face discrimination and stigma in various aspects of their lives. Some states, such as Kerala and Goa, have taken steps to recognize and protect the rights of LGBT individuals, but there is still a long way to go in achieving full legal and social equality.

Despite the legal challenges, ongoing efforts to legalize same-sex marriage continue in India. Several high-profile cases have been filed in courts across India, arguing that the denial of marriage rights to same-sex couples violates their fundamental rights. These cases represent a significant step towards achieving legal recognition and protection for same-sex couples in India.

Comparison with Other Countries
The legal and social acceptance of same-sex marriage varies widely across the globe. Some countries legalized it early on, while others have only recently recognized it. In this section, we will explore the laws and policies related to same-sex marriage in selected countries and examine the cultural and historical factors that have influenced their legal and social acceptance.
In the United States, "same-sex marriage was legalized nationwide by a landmark decision of the Supreme Court in the case of Obergefell v. Hodges[6].

The Supreme Court ruled on June 26, 2015, that the Fourteenth Amendment of the US Constitution guarantees same-sex couples the right to marry, and that states cannot ban same-sex marriage or refuse to recognize same-sex marriages performed in other states". Prior to this decision, some states had already legalized same-sex marriage through state legislation, court rulings, or ballot measures.[7]

Similarly, in the United Kingdom, same-sex marriage was legalized by the Marriage (Same-Sex Couples) Act 2013[8]. This act amended the Marriage Act 1949[9] and the Civil Partnership Act 2004[10], allowing same-sex couples to legally marry in England and Wales. The Scottish Parliament also passed a similar law, the Marriage and Civil Partnership (Scotland) Act 2014[11], which legalized same-sex marriage in Scotland.[12]

The legalization of same-sex marriage in both the US and the UK can be attributed to a combination of cultural, historical, and legal factors. The LGBT rights movement in both countries gained momentum in the 1960s and 1970s, with the formation of organizations dedicated to advocating for equal rights and protections for the LGBT community.

In the US, the movement was further galvanized by the AIDS epidemic in the 1980s and 1990s, which led to increased activism and visibility for the LGBT community. Additionally, the US has a strong tradition of individual rights and freedoms, which was invoked in support of same-sex marriage.[13]

Similarly, in the UK, the introduction of civil partnerships in 2005 paved the way for same-sex marriage, as it demonstrated that legal recognition of same-sex relationships was possible and desirable. The UK also has a strong tradition of democracy and human rights, which has been invoked in support of same-sex marriage.

Overall, the legalization of same-sex marriage in both countries was the result of years of activism and advocacy by the LGBT community, as well as legal and cultural changes that gradually led to greater acceptance and recognition of same-sex relationships.

Social Attitudes and Cultural Factors

In India, the attitudes towards same-sex marriage are influenced by a complex interplay of cultural, religious, and political factors. Despite some progress, the general population still lacks support for same-sex marriage, which can be attributed to various cultural and social factors. The traditional view of marriage as a union between a man and a woman is deeply ingrained in Indian society, which remains largely patriarchal and conservative. Consequently, many people view same-sex relationships as immoral, unnatural, and a threat to the traditional institution of marriage and the family.

Religion also plays a significant role[14] in shaping attitudes towards same-sex marriage in India. Although Hinduism, the dominant religion in India, does not have a clear stance on homosexuality or same-sex marriage, conservative interpretations of Hindu scriptures often condemn same-sex relationships as sinful. Similarly, other major religions in India, such as Islam and Christianity, also consider homosexuality and same-sex marriage to be morally wrong.

However, there has been some progress towards greater acceptance of the LGBTQ+ community in India in recent years. The Indian Supreme Court's landmark decision in 2018 to decriminalize homosexuality by striking down Section 377 of the Indian Penal Code was widely celebrated as a victory for LGBTQ+ rights in India. The LGBTQ+ rights movement in India has gained momentum in recent years, with the establishment of organizations such as the Naz Foundation, the Humsafar Trust, and the Queer Muslim Project, which work towards creating awareness and advocating for LGBTQ+ rights, including marriage equality.

Despite this progress, same-sex marriage remains illegal in India, and only 29% of the Indian population supported it, while 50% were opposed to it, according to a 2019 survey conducted by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA).[15] However, younger and more educated individuals and those living in urban areas showed higher levels of support for same-sex marriage.

The role of media, education, and public opinion is also important in shaping attitudes towards same-sex marriage in India. While the Indian media has become more accepting of LGBTQ+ issues in recent years, there is still a lack of representation and visibility of LGBTQ+ individuals in mainstream media. Education is another key factor in changing attitudes towards homosexuality and same-sex marriage. However, there is currently no comprehensive sex education curriculum in India, and many schools continue to propagate traditional gender roles and heteronormative values.

Impact of Legalizing Same-Sex Marriage

Legalizing same-sex marriage in India would require extensive changes to family laws and could face resistance from those who view it as a threat to traditional values. There may also be challenges in implementing these changes, such as ensuring that adoption laws do not discriminate against same-sex couples and that inheritance laws are amended to include same-sex spouses.

However, the advantages of legalizing same-sex marriage in India would be substantial. It would grant same-sex couples the same legal rights and protections as heterosexual couples, including the ability to adopt children, inherit property, and make medical choices for their partner. It would also offer social security benefits and permit joint tax filing.

"Legalizing same-sex marriage would also have a positive impact on society by promoting inclusivity and equality. It would send a message that all people, regardless of sexual orientation, are entitled to the same legal rights and protections. This would help to reduce discrimination and marginalization faced by the LGBTQ+ community, promoting a more accepting and tolerant society."

Legalizing same-sex marriage has already resulted in substantial changes in family laws in nations such as the United States, Canada, and the United Kingdom, with same-sex couples having the same legal rights and advantages as heterosexual couples. Legalizing same-sex marriage in India would have a similar effect, bringing the country in step with other progressive countries and fostering more equality and inclusivity.

Conclusion
In conclusion, the legalization of same-sex marriage in India is a complex issue that is influenced by a range of cultural, social, and legal factors. While there has been progress in recent years in terms of decriminalization and recognition of LGBTQ+ rights, there is still a lack of support for same-sex marriage among the general population.

Legalizing same-sex marriage would have a significant impact on family laws and would require careful consideration and crafting to ensure that same-sex couples are not discriminated against. However, it would also provide same-sex couples with the same legal protections and benefits as heterosexual couples and would go a long way in ending the discrimination and marginalization faced by the LGBTQ+ community.

Currently, there is a case in the Supreme Court regarding the legalization of same-sex marriage that is being opposed by the government. It remains to be seen how this case will be resolved; it may result in the Supreme Court issuing guidelines, as it did in the Vishaka case[16], which resulted in the passage of legislation, or it may not, but one thing is certain that ongoing advocacy and activism will be necessary to achieve full legal recognition and equality for the LGBTQ+ community in India. The struggle for marriage equality is ongoing, but with continued efforts, it is possible to achieve a more just and equitable society for all.[17]

End-Notes:

1. Hindu Marriage Act, 1955, Act No. 25 of 1955, (As amended by Act No. 68 of 1976)
2. Special Marriage Act, 1954, Act No. 43 of 1954, (As amended by Act No. 69 of 1976)
3. Navtej Singh Johar v Union of India; AIR 2018 SC 4321
4. R. Rajagopal and Ors. V. State Of Tamil Nadu, 1994 SCC (6) 632; Shakti Vahini V. Union of India; (2018) 7 SCC 192; National Legal Service Authority V. Union of India & Others; 2014 SC 1863
5. See supra note. 3
6. 576 U.S. 644 (2015).
7. Novak, A. (2020). Litigation and the Decriminalization of Homosexuality. In: Transnational Human Rights Litigation. Ius Gentium: Comparative Perspectives on Law and Justice, vol 75. Springer, Cham. https://doi.org/10.1007/978-3-030-28546-3_5
8. Marriage (Same-Sex Couples) Act 2013, Chapter 30, UK Parliament.
9. Marriage Act 1949, Chapter 76, UK Parliament.
10. Civil Partnership Act 2004, Chapter 33, UK Parliament.
11. Marriage and Civil Partnership (Scotland) Act 2014,asp 4, Scottish Parliament.
12. Ibid.
13. Baunach, D. M. (2012). Changing same-sex marriage attitudes in America from 1988 through 2010. Public Opinion Quarterly, 76, 364�378.; Bowers, M. M., & Whitley, C. T. (2020). What drives support for rights? Assessing the effects of biological attribution on U.S. public opinion of transgender rights. Sex Roles. https://doi.org/10.1007/s11199-019-01118-9.
14. Franczak, Marc Anthony, "Does Religion Affect Attitudes Towards Same-Sex Marriage? (2014). Theses and "Dissertations. 1652. https://commons.und.edu/theses/1652
15. International Lesbian, Gay, Bisexual, Trans and Intersex Association: Lucas Ramon Mendos, State-Sponsored Homophobia 2019 (Geneva; ILGA, March 2019)."
16. Vishaka and Ors. v. State of Rajasthan and Ors; AIR 1997 SC 3011

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