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Recognition of same-sex unions in India

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Marriage

Recognized

Civil unions and
registered partnerships
Minimal recognition
See also
Notes
  1. KoN: Performed in the Netherlands proper, including the Caribbean Netherlands, and in Aruba and Curaçao. Registered in Sint Maarten in such cases, but the rights of marriage are not guaranteed.
  2. NZ: Neither performed nor recognized in Niue, Tokelau, or the Cook Islands.
  3. UK: Neither performed nor recognized in six British Overseas Territories.
  4. US: Neither performed nor recognized in some tribal nations. Recognized but not performed in several other tribal nations and American Samoa.
  5. Israel: Registered foreign marriages confer all marriage rights. Domestic common-law marriages confer most rights of marriage. Domestic civil marriage recognized by some cities.
  6. EU: The Coman v. Romania ruling of the European Court of Justice obliges the state to provide residency rights for the foreign spouses of EU citizens. Some member states, including Romania, do not follow the ruling.
  7. Cambodia: Recognition of a "declaration of family relationship", which may be useful in matters such as housing, but they are not legally binding.
  8. China: Guardianship agreements, conferring some limited legal benefits, including decisions about medical and personal care.
  9. HK: Inheritance, guardianship rights, and residency rights for foreign spouses of legal residents.
  10. India: Courts have recognised guru–shishya, nata pratha or maitri karar–type contractual relationships, but they are not legally binding.
  11. Japan: Some cities and prefectures issue partnership certificates, but they are not legally binding.
  12. Namibia: Marriages conducted abroad between a Namibian national and a foreign spouse recognized for residency rights.
  13. Romania: Hospital visitation rights through a "legal representative" status.
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India does not recognise same-sex marriage or civil unions. India does not possess a unified marriage law, and as such every citizen has the right to choose which law will apply to them based on their community or religion. Although marriage is legislated at the federal level, the existence of multiple marriage laws complicates the issue.[1] The Supreme Court of India is currently deliberated on a court case seeking the legalisation of same-sex marriage.

While India does not recognise same-sex relationships, the vast majority of heterosexual marriages are not registered with the government and common-law marriage based on traditional customs remains the dominant form of marriage in India.[2][3] Hindu priests have been conducting same-sex marriage ceremonies in India and overseas, and hundreds of common-law same-sex marriages among Hindus have been reported since at least the late 1980s.[4][5]

Background

Since 1987, when the national press reported the story of two policewomen who married each other by Hindu rites in central India,[2][3] the press has reported many same-sex marriages, all over the country, mostly between lower middle-class young women in small towns and rural areas, who have no contact with any gay movement. Family reactions range from support to disapproval to violent persecution. While police generally harass such couples, Indian courts have uniformly upheld their right, as adults, to live with whomever they wish. In recent years, some of these couples have appeared on television as well. There have also been numerous joint suicides by same-sex couples, mostly lesbian couples. Different-sex couples also resort to suicide or to elopement and religious marriage when their families oppose their unions.

Advocacy for same-sex marriage in India first appeared in the 1990s. ABVA (AIDS Bhedbhav Virodhi Andolan) addressed the topic in 1991 in its citizens' report "Less than Gay".[6] In 2000, author Ruth Vanita in her book "Same-Sex Love in India: Readings from Literature and History" analysed dozens of same-sex common-law marriages and suicides that had taken place over the past three decades, and explored their legal, religious and historical aspects. She argued that many of the marriages can arguably be considered legally valid, as under the Hindu Marriage Act, 1955 any marriage between two Hindus performed according to the customs prevalent in the community of one of the two partners is legally valid. No license is required to marry, and most heterosexual Hindu marriages in India today are performed by religious rites alone, without a marriage license and are never registered with the state. Most couples seek the validation of family and community, and several female couples in rural areas and small towns have received this validation.[7][3] Since 2017, the press has reported several same-sex marriage ceremonies in several cities and towns of India, for instance in Yavatmal,[8] and Agra.[9]

Live-in relationships and other forms of partnership

Laws regarding homosexuality in Asia
Same-sex sexual activity legal
  Marriage performed
  Marriage recognized
  Other type of partnership
  Legislation or binding domestic court ruling establishing same-sex marriage, but no supporting legislation has been passed
  Legal guardianships or unregistered cohabitation
  Limited foreign recognition (residency rights)
  No recognition of same-sex couples
  Restrictions on freedom of expression
Same-sex sexual activity illegal
  Prison but not enforced
  Prison
  Death penalty on books, but not enforced
  Enforced death penalty

Couples in "live-in relationships" are not married to each other but live together as a cohabiting couple. Live-in relationships tend to be viewed by Indian society as taboo, but have become gradually more common among the younger population in light of the slow decline of arranged marriages. Unlike marriages, live-in relationships are not regulated by law. No law lays down the rights, benefits and commitments for parties in a live-in relationship. However, court judgments and various pieces of legislation offer various rights to such couples. The Protection of Women from Domestic Violence Act, 2005 grants domestic violence protections to women who live in a "relationship in the nature of marriage". Courts have interpreted this expression as covering live-in relationships. Following amendments in the early 2000s, the term "wife" under the Criminal Procedure Code, 1973 includes women who have been in live-in relationships for a "sensible period of time" for the purpose of alimony.[10]

In S. Khushboo v. Kanniammal in 2010, the Supreme Court of India held that a live-in relationship comes within the ambit of the right to life under Article 21 of the Constitution of India. The court further held that live-in relationships are permissible and the act of two people living together cannot be considered illegal or unlawful. On 6 May 2018, the Supreme Court ruled that a 20-year-old Malayali woman, whose marriage had been annulled, could choose whom she wanted to live with. The court ruled that "an adult couple has a right to live together without marriage".[11]

The Supreme Court has held that certain criteria have to be met for a live-in relationship to be recognised; this includes both parties "[being] of legal age to marry or should be qualified to enter into a legal marriage" and they "must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time". In 2015, the court ruled in Dhannulal v. Ganeshram that couples living in a live-in relationship will be presumed legally married if they have been living together for a long period of time. The court also added that a woman in such a relationship is eligible to inherit the property of her deceased partner. Court rulings have also held that children born within a live-in relationship will not be considered illegitimate.[10] It is unknown how these various rights and benefits apply to same-sex couples, for whom live-in relationships are the only type of union recognised by law to some degree.

Same-sex marriage

India has traditionally identified same-sex unions to be a trans-rooted alien culture-bound syndrome. Hence, LGBT advocacy groups are mostly working for a step-by-step approach required to tackle all the challenges faced by LGBT citizens in India. The initial focuses of these groups were to repeal Section 377 of the Indian Penal Code, which was struck down by the Supreme Court in 2018, and to enact anti-discrimination laws. LGBT rights groups are optimistic and are working on winning the right to same-sex marriage, inspired by the progress achieved in several Western countries. In April 2014, Medha Patkar of the Aam Aadmi Party said that her party supports same-sex marriage, becoming the first political party to do so.[12]

Federal marriage laws

The following acts cover India's marriage laws:

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.[18][19]

Uniform Civil Code

In 2017, a draft of a Uniform Civil Code to legalise same-sex marriage was published.[20] 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 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.

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.[21] The Bharatiya Janata Party (BJP) supports a Uniform Civil Code and was the first party in India to do so.[22] 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.[23] 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 current Muslim personal law, which governs Indian Muslims.[24] 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.[25] 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.[26]

State and territory laws

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 are obliged to register all marriages performed under the federal laws. The court's ruling was expected to reduce instances of child marriages, bigamy, domestic violence and unlawful abandonment.

Andhra Pradesh

In 2002, the Andhra Pradesh Legislature (which consists of the Legislative Council and the Legislative Assembly) passed the Andhra Pradesh Compulsory Registration of Marriages Act, 2002, which was later signed into law by Governor C. Rangarajan. It created a Registrar of Marriages for every district, which shall issue a marriage certificate upon reception of a memorandum of marriage filed by the spouses. The Registrar may refuse to issue the license if the parties fail to meet the requirements to marry under the national law of their religion or community. The Act defines marriage as "all marriages performed by persons belonging to any caste or religion and also the marriages performed as per any custom, practices or any traditions including the marriages performed in the tribal areas and the word 'marriage' also includes 'remarriage'".[27] The Act generally refers to married spouses as "bride and bridegroom".[27]

In October 2007, two women got married in a temple in Visakhapatnam in the presence of the mother of one of the brides and another witness. The two women were workers in a church and they exchanged bibles in accordance with local Christian custom. When the church found out about their relationship, they were dismissed from their jobs.[28] On 18 December 2021, two men, Supriyo Chakraborty and Abhay Dang, were married in a Hindu ceremony in Hyderabad, the de jure capital of Andhra Pradesh, making "it the first gay wedding in the Telugu States".[29] Their wedding was attended by family members and close friends. "Our parents weren't initially the most supportive. However, they also didn't disapprove of it either. They decided to give us and themselves a good amount of time to introspect and come to a better conclusion. Now, we have their acceptance.", Chakraborty said.[30] The marriage is not legally recognised.[31] In August 2022, a lesbian couple were married in a traditional Hindu ceremony in Srikalahasti, though the marriage lacks legal recognition. One of the women had previously been married to a man, but after meeting each other they decided to elope. They later asked for police protection in Vempalle.[32]

Shiva-shaktis (Telugu: శివ-శక్తి, pronounced [ˈçiʋa ˈçakt̪i]) are a hijra community living in Andhra Pradesh. Every autumn during a three-day festival performed across Andhra Pradesh and Telangana, they are married to a sword that represents male power or Shiva, becoming the brides of the sword.[33] One of the avatars of Shiva, a central figure in Hinduism, is Ardhanarishvara, who is depicted as half-man and half-woman, representing Shiva united with his shakti. The shiva-shaktis identify with this form of Shiva and worship at Shiva temples. The religious meaning of the shiva-shakti role is expressed in several Hindu stories, including those of Arjuna, Shiva, Bahuchara Mata and Krishna. Most people in this community belong to lower socio-economic status and live as astrologers, soothsayers, and spiritual healers.[34]

Delhi

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 HMA.[35]

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 HMA in Delhi. "[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 sought a declaration stating that Section 5 of the HMA did 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.[36]

In October 2020, a lesbian couple, medical practitioners Kavita Arora and Ankita Khanna, filed a lawsuit, Dr Kavita Arora & Anr v. Union of India,[37] with the Delhi High Court seeking a declaration that the 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, contended that the SMA in denying recognition of same-sex marriages constituted an infringement of Articles 14, 15, 19 and 21 of the Indian Constitution. The couple asserted 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 contended 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.[38][39] Because they are unable to marry, the couple cannot own a house together, open a bank account or access family life insurance.[40] The High Court sought responses from the Union Government on the plea.[36] In Vaibhav Jain & Anr v. Union of India, two gay men, Vaibhav Jain and Parag Vijay Mehta, who had married in Washington, D.C. in 2017, contended that the Foreign Marriage Act, 1969 should be perused to apply to same-sex relationships. The High Court asked the Union Government and the Consulate General of India in New York City to respond to the petition.[36]

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.[41] The court scheduled further deliberations for 25 February 2021. The Union Government was 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.[42][43] 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, asked 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.[44] 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.[45][46] 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 argued 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 claimed that the Foreign Marriage Act violated Articles 14 and 21 of the Constitution of India in excluding the recognition of foreign same-sex marriages.[47] 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.[48]

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.[40] 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.[49][50] In an affidavit, the government opposed live-streaming the proceedings, stating that the "applicants were attempting to create a dramatic impression of the proceedings before the court and to win sympathy", adding that the matter was not of "national importance".[51] On 17 May, the court objected to the government's "highly objectionable comments"; the government said it would file a new response. Advocates representing the couples said the government's statements demean the rights of same-sex couples, "I am troubled that the government of India should use words like sympathy, hallucination, you are sensationalising. You may agree or disagree on live streaming but please don't trivialise and demean the people who have struggled for years till the constitution bench of the apex court recognised their rights", said senior advocate Neeraj Kishan Kaul.[52] The next hearing was scheduled for 20 August 2022. That day, the court deferred the hearing to 6 December.[53] On 30 January 2023, the Delhi High Court transferred all these cases to the Supreme Court of India.[54]

Goa

Goa is unique among the states of India in being the only one to have a unified marriage law. Every citizen is bound to the same law regardless of their religion.[55] However, article 1056 of 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". Marriages are solemnised before officials of the Civil Registration Services according to the conditions established by law. Article 1058, which lists forbidden marriages such as marriages to relatives or to individuals under the marriageable age, does not explicitly ban marriages between people of the same sex.[56]

Reported in the media as "India's first gay marriage", designer Wendell Rodricks and his French partner, Jerome Marrel, entered into a civil solidarity pact (PACS), a French civil union scheme, in 2002. Rodricks later reported that the evening of the signing of the PACS 8 "scruffy-looking men" came to the couple's house in Colvale. Although he anticipated trouble, the men instead said "Landlord, you are getting married and not buying us a round of drinks?" Scroll.in reported this history in 2022 as an "early sign" on how Goans would "overcome prejudice to open [their] arms to the queer community".[57]

In 2006, a local LGBT advocacy group stated that in the past two years they had conducted 25 same-sex marriages, though the marriages lack legal recognition. "Fearing social stigma and discrimination, we had to conduct all these marriages in a clandestine manner.", said a spokesman for the group.[58] There have also been cases of marriages between cisgender men and hijra, known in the local Konkani language as khōjjō (खोज्जो, pronounced [ˈkʰoːd͡ʒːoː]).[59] In 2022, a lesbian couple, Dr. Paromita Mukherjee and Dr. Surabhi Mitra, orginially from Nagpur, Maharashtra, had a "big, fat, sea-side destination wedding" in Goa. The couple went public with the news of their wedding.[60] Mukherjee said, "We are over the moon with the love we are garnering. Somewhere we knew that the society and its aware people will celebrate our love with us."[61]

Gujarat

In June 2020, a lesbian couple from the Mahisagar district, Gujarat filed a petition with the Gujarat High Court seeking police protection from their families and recognition of their right to cohabitation. The couple had entered a "friendship agreement" (મૈત્રી કરાર, maitri karar, Gujarati: [ˈməjtɾi ˈkəɾɑɾ]) as a way to legitimise their relationship; "like in case of a marital union, it had details on property ownership, inheritance and maintenance, in case of separation." The High Court granted their petition on 23 July 2020 and ordered the Mahisagar police to give protection to the couple.[62] Maya Sharma, an activist with the Vikalp Women's Group, said "such contracts in court cases [are used] in which one of the partners' parents were forcing marriage upon them. It has helped us get judgements in our favour." The first maitri karar between a same-sex couple is believed to have occurred in 1987 in the Chhota Udaipur district.[63] A similar custom called Nata Pratha (नाता प्रथा, Hindi: [ˈnɑːtɑː pɾəˈtʰɑː]) is practiced in parts of Rajasthan and Madhya Pradesh.

Haryana

A single case of legal recognition of a same-sex marriage was granted by the Punjab and Haryana High Court in 2011.[64] The couple held a marriage ceremony in Gurgaon after signing an affidavit asserting that they meet all of the requirements of a legal marriage.

Karnataka

The Government of Karnataka published the Karnataka Marriage (Registration and Miscellaneous Provisions) Rules, 2006 in the Karnataka Gazette on 18 April 2006. The Rules provide for the registration of all marriages solemnized in Karnataka irrespective of the religion of the parties. They created a Registrar of Marriages, which shall issue a marriage certificate upon reception of a memorandum of marriage filed by the spouses. The Registrar may refuse to issue the license if the parties fail to meet the requirements to marry under the national law of their religion or community. The marriage certificate requires the names of the "bride" and the "bridegroom".[65] The Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1976 does not explicitly ban same-sex marriages, and defines marriage simply as including remarriage.[66]

Some same-sex couples have married in traditional marriage ceremonies, though the marriages have no legal status in Karnataka. Nived Antony Chullickal and Abdul Rahim, originally from Kerala, were married in Bangalore in December 2019.[67] "I really just wanted to get married to my boyfriend and shared pre-wedding photoshoot, firstly, as a message to everyone that it is better to be late than never and second, it is so good to come out and marry your partner. Our wedding was like any other wedding. I also wanted it to be an inspiration for people, so that they too can do the same, and now so many people have called me and I really feel good that I have been an inspiration for all.", Chullickal told The News Minute.[68]

In 2020, members of the Kodava community called for the "ostracisation" of Dr. Sharath Ponnappa, a Kodava, because he chose to wear traditional Kodava attire, the kupya-chele,[a] at his marriage to Sundeep Dosanj, a Punjabi American, in the United States on 26 September 2020. K. S. Devaiah, the president of the Kodava Samaja in Madikeri, a community group representing Kodava interests, noted that while there had been several instances of inter-caste marriages, this was the first same-sex marriage in the community. "This wedding, where the couple wore traditional Kodava attire, is an insult to the entire community. Hence, after a meeting the members of the Kodava Samaja, we have recommended ostracisation of Sharath Ponnappa from the community. [...] Gay marriage is one thing and wearing sacred Kodava attire to solemnise a gay marriage is another thing. We are against the latter.", said Devaiah.[69] Ponnappa, a California doctor, responded to the controversy, saying, "We knew there would be dissenters, but we have literally been fighting for acceptance since the day we were born, fighting to survive and be treated the same as our peers. However, we proudly choose to live our truth, celebrate our same-sex marriage and encourage the dissenters to open their minds and engage in positive dialogue to understand that all humans are created equally and deserve respect and love."[70] Kodava actor Gulshan Devaiah weighed in, stating, "I look at the picture and they look beautiful and all that matters to me is the coming together of two people who love each other. I see the fact that they decided to wear the Kodava attire as a mark of respect and celebration of the Kodava traditions."[71]

The Halakki Vokkaliga, an indigenous people living in the Uttara Kannada district, have been celebrating traditional lesbian marriages for "so long that none living in the community now knows when and how it began". One such wedding, known in Kannada as daḍḍuve maduve (ದಡ್ಡುವೆ ಮದುವೆ, pronounced [ˈdɐɖːʊʋe ˈmɐdʊʋe]), is performed every year to honour Indra and pray that "the rain shouldn't be more or less than required". After the procession and rituals, the newly-weds, both of whom are dressed in saris, are blessed and given gifts just as at any other wedding. A recent daḍḍuve maduve in 2022 took place in a Hindu temple honouring Ganesha, who holds importance for the Halakki Vokkaliga.[72][73]

Kerala

In 2008, the Government of Kerala, by order of Governor R. L. Bhatia, published legislation, the Kerala Registration of Marriages (Common) Rules, 2008,[b] in the Kerala Gazette on 29 February 2008. The Rules provide for the registration of all marriages in Kerala "solemnized […] after the commencement of these Rules […] irrespective of [the] religion of the parties". They created a Registrar of Marriages, which shall issue a marriage certificate upon reception of a memorandum of marriage filed by the spouses. The Registrar may refuse to issue the license if the parties fail to meet the requirements to marry under the national law of their religion or community. The marriage certificate requires the name, nationality, age, date of birth, address, and the previous marital status of the "husband" and the "wife".[74][75]

In January 2020, Sonu Soman, an IP professional, and Nikesh Pushkaran, a businessman, filed a writ petition in the Kerala High Court, arguing that preventing them from marrying under the SMA violated the principle of equality, non-arbitrariness, non-discrimination, individual dignity and personal autonomy of Articles 14, 15(1), 19(1)(a) and 21 of the Constitution of India.[76][77] The couple, from the Ernakulam district, had sought to marry at the Guruvayur Temple, but authorities refused to solemnize the marriage and issue a certificate; they married in a secret ceremony in a car parking area of the temple in July 2018.[78] They cited the Supreme Court's ruling in Navtej Singh Johar v. Union of India, which decriminalized homosexuality in India in 2018 and recognized a person's right to be treated with dignity regardless of sexual orientation, whilst arguing that exclusion from the institution of marriage denies them basic rights and privileges such as maintenance, inheritance, pension, joint bank accounts, etc: "The institution of marriage affords certain rights and privileges to the persons in matrimony in the society and due to the aforesaid exclusion, the homosexual couples like the petitioners are denied an opportunity to enjoy similar rights and privileges. Being married carries along with it the right to maintenance, right of inheritance, a right to own joint bank accounts, lockers; nominate each other as a nominee in insurance, pension, gratuity papers etc. All these are unavailable to the Petitioners due to their exclusion from the institution of marriage, making the said exclusion more discriminatory."[79] The couple filed the writ on 24 January with Justice Anu Sivaraman.[80] As of October 2022, the Kerala Government had not yet filed a response to the writ petition. Soman and Pushkaran wrote to Chief Minister Pinarayi Vijayan, but likewise did not receive a response.[81] In November 2022, the Deputy Solicitor General announced that the government was taking steps to get the writ petition transferred to the Supreme Court of India.[82]

In 2018, the Kerala High Court ruled in Sreeja S v. Commissioner of Police that a lesbian couple, Sreeja and Aruna, did not violate the law by living together in a same-sex relationship. The couple had moved in together, but Aruna's parents filed a missing person complaint with the police, and later attempted to send her to a mental hospital in Thiruvananthapuram. During the court proceedings, Aruna clarified that she was living with Sreeja of her own free will. The court held that their live-in relationship did not violate the law, and ordered that the couple be allowed to freely reside together.[83][84] In May 2022, the Kerala High Court gave a Muslim lesbian couple, Fathima Noora and Adhila Nasarin, the right to live together. The couple had been forcibly separated by their families, with Noora allegedly being forced into conversion therapy. Nasarin filed a habeas corpus plea, Adhila Nasarin v. Commissioner of Police, stating "Noora's mother came and showed me a petition saying that I kidnapped her and she will take her back. They are very cruel, they may try to kill her and there were several threats from Noora's family. They even threatened to kill me and my father. Noora was taken away from me by force." In a short proceeding before Justices K. Vinod Chandran and C. Jayachandran, the court issued a judgement in favour of the couple on 31 May.[85][86] The couple were married in a traditional ceremony in October 2022.[87][88] In 2022, a woman from Kaloor filed a habeas corpus plea, Devu G. Nair v. State of Kerala, alleging that her same-sex partner had been illegally detained by her parents. The couple had been together for a year and planned on getting married. On 2 February 2023, the High Court denied the plea and directed the detained partner to attend psychiatric counselling. On 6 February, the plaintiff filed for review with the Indian Supreme Court. In her petition, she stated that the counselling recommended by the High Court "is obviously counselling to change her sexual orientation.", and urged her partner's release.[89][90]

In February 2023, the state government said it would introduce legislation to the Kerala Legislative Assembly amending the Kerala Registration of Marriages (Common) Rules, 2008 to allow transgender people to marry.[91] The first marriage ceremony for a transgender couple took place in Thiruvananthapuram in May 2018.[92] As both partners were transgender, authorities allowed it to be solemnised under the SMA as an opposite-sex marriage.

In a survey conducted by India Today in 2019, 58% of participants from the state opposed same-sex relationships; the fourth highest among the twelve states surveyed.[93] The 2021 Mathrubhumi Youth Manifesto Survey conducted on people aged between 15 and 35 showed that 74.3% of respondents supported legalising same-sex marriage, while 25.7% were opposed.[94]

Manipur

The Manipur Compulsory Registration of Marriages Act, 2008 officially took effect in October 2013. The Act provides for the registration of all marriages solemnized in Manipur irrespective of the religion or caste of the parties. It defines marriage as "all the marriages contracted or solemnized by persons belonging to any caste, religion or creed and the marriages solemnized or contracted as per any custom, practices or traditions and also includes 're-marriages'". The Act does not explicitly ban same-sex marriage, but states that the parties to the marriage "mean the husband and wife whose marriage has been solemnized".[95]

A same-sex marriage ceremony occurred in Imphal in March 2010. The marriage lacks legal recognition and it is understood that the parents of the couple were opposed to the union.[96] In pre-colonial Meitei society, there existed a community of transgender people known as nupi maanbi (Manipuri: নূপি মানবি, ꯅꯨꯄꯤ ꯃꯥꯅꯕꯤ, pronounced [nùbì mánbì]), who "[held] a high status, power and privilege in the social and cultural life of Meitei society", acting as religious counsellors and guards for the Meitei kings at the Kangla fort.[97]

Mizoram

The Mizo Marriage, Divorce and Inheritance of Property Act, 2014 (Mizo: Inneih, Inthen leh Rokhawm Dan, 2014) enacted by the Mizoram Legislative Assembly, regulates marriage, divorce and inheritance rules among the Mizo people, allowing marriages performed under Mizo customs to be legally recognised in Mizoram. The Act defines marriage as "a union of a man and a woman who are both major as husband and wife".[98] In a survey conducted by India Today in 2019, 87% of participants from the state opposed same-sex relationships; the highest among the twelve states surveyed.[93]

In pre-colonial Mizo society, there seems to have been transgender people, known as tuai (Mizo: [túɑi]), who performed roles opposite to their biological genders. The tuai dressed as women, wearing the puan, and performed work which was traditionally regarded as belonging to the feminine sphere. It is quite rare, however, to find mentions of tuai in Mizo oral literature and written history. According to some Mizo academics, Tuaisala, the younger brother of Liandova, was a tuai and performed a tuai khaw fang, a practice among tuai to travel around villages in the Lushai Hills. It is said, however, that tuai were buried facing the ground, which was considered a sign of disrespect. In the early 20th century, British colonial officers ordered every tuai to begin dressing up as men and perform forced labour like Mizo men.[99]

Odisha

In November 2006, two Khond women, Bateka Palang and Maleka Nilsa, were married "in a traditional ceremony, in the presence of family" in a rural town in the Koraput district, Odisha.[28] Following the traditional custom of bride price, the gāṭi muḍa,[c] the family of Bateka gave a cow and wine to the family of Maleka. Bateka's mother was quoted as saying, "We resisted their marriage because it was against our tradition. But they were in no mood to listen and eloped. Finally, we were compelled to get them married according to our tradition. I have accepted Maleka as my daughter-in-law."[100] Two women were married in a temple in Talcher in July 2018 "causing outrage among the villagers and ostracisation of their own families".[101] A lesbian couple, Sabitri Parida and Monalisa Nayak, were married in a traditional Hindu ceremony in Kendrapara in January 2019. The parents of the brides were not supportive of their relationship, and Noyak's father issued a statement alleging that "his daughter is innocent and is under a spell of black magic", urging police to separate the couple.[102] The couple left to Bhubaneswar to avoid family harassment.[103]

In August 2020, the Orissa High Court ruled in Chinmayee Jena v. State of Odisha that same-sex live-in relationships are recognised under the constitutional right to life and equality. The court was hearing a habeas corpus plea filed by Sonu Kirhsna Jena, a transgender man, whose partner had been kidnapped by her family and arranged into a forced marriage. It ordered the partner's release, recognising the right to cohabit with a partner of a person's choice regardless of gender. The court also held that women in live-in relationships are protected under the 2005 domestic violence law similarly to different-sex cohabiting couples.[104] It is unknown what legal rights and benefits live-in relationship provide to same-sex couples. Unlike registered partnerships (Odia: ନାଗରିକ ସହଭାଗୀତା, pronounced [naɡɔˈɾikɔ sɔhɔbʱaˈɡiːt̪a]), live-in relatationships lack a robust, legally protected status.

Punjab

In July 2020, the Punjab and Haryana High Court ruled that same-sex couples are entitled to live-in relationships and protection of their lives and liberty as envisaged under Article 21 of the Constitution of India.[105]

Tamil Nadu

In 2009, the Tamil Nadu Legislative Assembly passed the Tamil Nadu Registration of Marriages Act, 2009, which was signed into law by Governor Surjit Singh Barnala in August 2009. The Act provides for the registration of all marriages in Tamil Nadu "performed on and from the date of commencement of this Act". It created a Registrar of Marriages, which shall issue a marriage certificate upon reception of a memorandum of marriage filed by the spouses. The Registrar may refuse to issue the license if the parties fail to meet the requirements to marry under the national law of their religion or community. 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".[106] According to a 2019 report titled "Politics and Society Between Elections 2019", published by the Azim Premji Foundation and Lokniti-CSDS, Tamil Nadu ranked third in the nation in terms of acceptance of same-sex unions, after Delhi and Uttar Pradesh.[107][108]

On 22 April 2019, the Madras High Court ruled in Arunkumar v. The Inspector General of Registration that transgender women may marry under the HMA.[109] The court ordered the state government to register the marriage of a man and a transgender woman, Shri Arunkumar and Ms. Srija, which had been performed in October 2018 in Thoothukudi in accordance with Hindu custom. The couple were issued a marriage certificate following the court ruling in May 2019.[110][111][112][113] Following their marriage ceremony in October, the Registrar of Marriages had refused to certify the marriage and issue a license, arguing that the couple could not marry under the HMA and that the dictionary definition of bride excluded transgender women. The court ruled that the refusal to register the marriage discriminated on the basis of gender identity in violation of the Supreme Court's ruling in National Legal Services Authority v. Union of India.[114] The court also discussed the story of Aravan in its ruling.[115]

A Tamil woman, Subiksha Subramani, married her Bangladeshi partner Tina Das in a traditional Tamil wedding ceremony in Chennai in September 2022. The marriage has no legal status in India, but Subramani said, "It was everything we dreamt of but never thought was possible. After years of soldering thorough and braving the taunts we are happy today that our loved ones are standing with us, cheering for us and performing every ritual according to our respective customs."[116] The officiant who performed the ceremony said he had already performed several ceremonies for same-sex couples. A same-sex couple were married in a traditional Hindu ceremony near Salem in July 2022.[117]

Every year, many Tamil transgender people meet in Koovagam to marry Lord Aravan, known locally as Koothandavar. The participants marry Koothandavar, thus reenacting an ancient story in the Mahabharata: "Aravan, the son of Arjuna and Nāga princess Ulupi, agrees to be sacrificed to goddess Kali so that the Pandavas can win the war against the Kauravas. His dying wish is that he is married. However, no one is willing to marry him since he will be sacrificed the next morning. So Krishna takes on female form as Mohini, weds Aravan – only to be widowed the morning after." Transgender people in Tamil Nadu are referred to as aravāṇi (அரவாணி, pronounced [ˈaɾaʋaːɳi]) in reference to the story. Other characters in the Mahabharata epic changed their gender. For instance, Shikhandi, the sibling of Draupadi, changed gender to male in order to go to war; Arjuna spent the last year of a 13-year-exile as an eunuch named Brihannala; and Krishna as Mohini had a son named Ayyappan with Shiva.[118]

Uttar Pradesh

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.[119]

In April 2022, the Allahabad High Court dismissed a case brought by a Hindu lesbian couple who wished to marry under the HMA. The court also dismissed a habeas corpus claim brought by the mother of one of the women.[120][121]

Uttarakhand

In June 2020, the Uttarakhand High Court ruled that live-in relationships between same-sex couples are not unlawful; "It is a fundamental right which is guaranteed to a person under article 21 of the Constitution of India, which is wide enough to protect an inherent right of self determination with regards to one's identity and freedom of choice with regards to the sexual orientation of choice of the partner".[122]

Legal challenges

Shakti Vahini v. Union of India (2018)

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.[123][124]

Supriyo v. Union of India (2022–present)

Main article: Supriyo v. Union of India

On 25 November 2022, the Supreme Court of India agreed to hear a case, Supriyo v. Union of India, challenging the government's refusal to same-sex marriages under the Special Marriage Act. The plaintiffs are Supriyo Chakraborty and Abhay Dang, a couple from Hyderabad, and Parth Phiroze Mehrotra and Uday Raj, a couple from Delhi.[125][126][127] The filing of the lawsuit was opposed by some politicians. On 19 December 2022, Sushil Modi, a prominent lawmaker from the Bharatiya Janata Party (BJP), told Parliament that "India is [a] country of 1.4 billion people and two judges cannot just sit in a room and decide on such a socially significant subject. Instead, there should be a debate in Parliament as well as the society at large."[128][129] On 6 January 2023, a three-judge bench of the Supreme Court, led by Chief Justice Dhananjaya Y. Chandrachud, ordered that all lawsuits challenging the inability of same-sex couples to marry in the Delhi and Kerala high courts be transferred to the Supreme Court, and set oral arguments for 13 March 2023.[130] Citing the importance of this matter and invoking Article 145(3) of the Constitution, the Supreme Court referred the case on 13 March to a five-judge constitution bench, and set the first oral arguments for 18 April 2023.[131]

On 14 March 2023, during a press conference of the Akhil Bharatiya Pratinidhi Sabha, Dattatreya Hosabale, general secretary of the far-right and Hindu-nationalist Rashtriya Swayamsevak Sangh party expressed opposition to the extension of marriage rights to same-sex couples, arguing that "marriage is an institution for the benefit of the family and society, not for physical and sexual enjoyment."[132] On 24 March 2023, a group of 21 retired judges of various high courts issued an open letter stating that the legalisation of same-sex marriage would "change the entire gamut of all personal laws from marriage to adoption and succession. The law-making power is vested with the Parliament and not with the judiciary, especially in matters exclusively within social and political domain." The letter also noted that "instead of having wide-range discussions amongst stakeholders, such a hasty judicial intervention is unfortunate, and totally unwarranted. The court should not interfere in sensitive issues like same-sex marriage. The subject is related to society and the opinion of society on these matters is important. Parliament is paramount in making laws and the MPs elected to Parliament represent the people of the country."[133] Critics pointed out that the retired judges built a fictitious argument that legalising same-sex marriage would increase HIV infections.[134][135][136] On 1 April 2023, Mahmood Madani, representing Jamiat Ulema-e-Hind, sought to intervene in Supriyo as an opponent of legalizing same-sex marriage in India. Several other Islamic organisations including Jamaat-e-Islami Hind, the All India Muslim Personal Law Board, and the Telangana Markazi Shia Ulema Council also voiced their opposition to legalizing same-sex marriage.[137][138][139] The Bar Council of India issued a statement in April urging the Supreme Court to dismiss the petition, claiming without evidence that "99 percent of Indians oppose [same-sex marriage]";[140] a Pew Research Center poll conducted between February and May 2023 showed that 53% of Indians supported same-sex marriage.[141]

Oral arguments began on 18 April 2023.[142] During the hearings, Solicitor General Tushar Mehta, representing the government, stated that "five individuals should not decide for the entire nation and issues related to human relationships, such as marriage should be addressed through legislation in Parliament." Chief Justice Dhananjaya Y. Chandrachud responded, "There is no absolute concept of a man or a woman at all. You can't tell us what to do. I won't allow this in my court".[143][144][145] On 20 April 2023, the five-judge constitution bench led by Chandrachud hinted at their intention to legalize same-sex marriage, despite objections by the Indian Government and religious groups.[146][147]

On 21 April 2023, Bhupender Yadav, the Minister of Labour and Employment and Environment, Forest and Climate Change as well as the General Secretary of the ruling Bharatiya Janata Party, stated that "the issue of marriage concerns society and society's opinion on this issue cannot be excluded. The voice of society is best reflected in Parliament".[148][149] The state governments of Andhra Pradesh, Assam and Rajasthan also issued statements opposed the legal recognition of same-sex marriages.[150] On 3 May, Solicitor General Mehta told the constitution bench that a parliamentary committee would be formed to study providing limited rights to same-sex partners. A lawyer representing the couples said the changes were "welcome" but "they are not a substitute for the reliefs the petitioners are seeking." The bench clarified that they would continue to hear the petition.[151] The constitution bench concluded oral arguments on 11 May 2023, after 10 total days of hearings from petitioners and respondents. A ruling is expected by the end of 2023.[152]

Public opinion

According to a 2015 Ipsos poll, 29% of Indian people supported same-sex marriage, while 18% supported other forms of legal recognition.[153] Among the 23 countries polled, India had the fifth lowest support for same-sex marriage, in front of only South Korea (27%), Turkey (27%), Poland (21%) and Russia (11%). According to a 2016 poll by the International Lesbian, Gay, Bisexual, Trans and Intersex Association, 35% of the respondents were in favour of legalising same-sex marriage, while 35% were opposed.[154] A September–October 2016 survey by the Varkey Foundation found that support for same-sex marriage was higher among 18 to 21-year-olds at 53%.[155]

A 2019 poll by Mood of the Nation (MOTN) found that 24% of respondents agreed with same-sex marriages, while 62% disagreed and 14% were undecided.[156][157]

A May 2021 Ipsos poll showed that 44% of Indians supported same-sex marriage, 14% supported civil unions but not marriage, while 18% were opposed to all legal recognition for same-sex couples, and 24% were undecided.[158] A Pew Research Center poll conducted between February and May 2023 showed that 53% of Indians supported same-sex marriage, 43% were opposed and4% did not know or refused to answer.[141]

See also

Notes

  1. ^ The kupya-chele (ಕುಪ್ಯ-ಚೇಲೆ) consists of the kupya, a wraparound robe, and the chele, a gold-embroidered silk sash worn around the waist. The kupya-chele is worn by men on ceremonial occasions.
  2. ^ Malayalam: 2008 ലെ കേരള വിവാഹങ്ങൾ രജിസ്റ്റർ ചെയ്യൽ (പൊതു) ചട്ടങ്ങൾ, pronounced [ɾɐɳɖaːˈjiɾɐt̪ːi ˈeʈːɨ̆ le ˈkeːɾɐɭɐ ʋiˈʋaːhɐŋːɐɭ ˈɾɐd͡ʒistːɐr ˈt͡ʃejːɐl ˈpod̪u ˈt͡ʃɐʈːɐŋːɐɭ]
  3. ^ Bride price (Kui: ଗାଟି ମୁଡ, pronounced [ˈgaːʈi ˈmuɖa]) is traditionally payed to the parents of the bride by the groom.

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