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White Black Legal – International Law Journal · ISSN 2581-8503
Reimagining Same-sex Marriage under Hindu Marriage Act in an Era of Expanding LGBTQ+ Rights in India
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Abstract
“REIMAGINING SAME-SEX MARRIAGE UNDER HINDU MARRIAGE ACT IN AN ERA OF EXPANDING LGBTQ+ RIGHTS IN INDIA”
AUTHORED
BY - ROHIN VERMA
2nd Year Student
University Institute of Legal Studies, Chandigarh University
CO-AUTHOR
- MS. RITU MALIK
Assistant Professor
University Institute of Legal Studies, Chandigarh University
ABSTRACT
Marriage has been a
central part of Indian society
since ages; the foundation of family establishes after two soul gets married. Human beings have certain needs such as economic stability, want for
companionship, sexual needs and spiritual enlightenment through ethereal bond
of marriage1. Hindu Marriage Act 1955 also shows this dichotomous idea through its definition of marriage with terms like “bride” and “bridegroom,” which automatically excludes
same-sex and gender-diverse
relationships from being recognized2.
This discrimination persists even though there has been an attempt to change
this understanding regarding gender and individual freedom through various
landmark decisions. The Supreme Court recognized the legitimacy of queer
relationships but declines to extend marriage rights, leaving the matter to
Parliament. This paper considers that is India’s progressively transforming LGBTQ+
jurisprudence as well as constitutional and legal basis provide sufficient backing to
redefine the definition of marriage in Hindu Marriage Act.
This paper examines the right of the LGBTQ+
community in India to get their marriage
legalized through study of constitutional law, legislations and judicial decisions. The results show that there is
a gap between judicial decision
and legislative reform
which is depriving LGBTQ+ individuals from right to marry. Despite
increasing global recognition of gay
1 Shivani Singh, Evolution of marriage rights in India with respect
to homosexuality, 10 IJRAR 785, 785 (2023).
marriage, from right
to marry. Despite
increasing global recognition of gay marriage, discrimination against
the LGBTQ+ community persists in India as their sexualities are regarded as a
form of psychological illness, they face mockery and are required to get their
psyche "corrected". The problem is exacerbated by the fact that the
Trans Bill 2026 represents a backward step from self-identification to state validation. This paper concludes
there shall be equality in matrimonial rights for marriage irrespective of
gender, aligning domestic personal laws with the transformative constitutional
ethos.
Keywords: LGBTQ+ community, Same-sex relationships, Judicial
decisions, Trans Bill 2026
and psychological illness.
INTRODUCTION
Same-sex marriages have emerged as
a controversial issue not only in India but globally, challenging traditional
norms and legal framework. While many countries have moved towards recognizing
and legalizing same-sex marriages, India’s stand on this matter remains rigid,
conservative and complex, India recognizes the LGBTQ+ rights and their personal
liberty, but matrimonial rights are not yet granted to them3.
The definition of homosexuality according to dictionary is “the fact of being sexually attracted to male if you are a male or female if you are a female4”
and the definition of same-sex marriages according to dictionary is “marriage between two people of the same sex5”. The institution of marriage exists
as a socio-legal and civil institution in India which provides
numerous rights, protection and societal benefits which are as follows: inheritance, succession, tax, maintenance, adoption and guardianship. However same-sex
couples experience negative
consequences because their
union is not yet recognized and legalized that’s
why they are barred from such rights and benefits6.
This cohesive exclusion is a major contributor for social marginalization as
there are estimated 135 million LGBTQ+ individuals which is 10% of Indias 1.4 billion population7, though
India has neglected
a comprehensive survey for LGBTQ+ population but
according to the records and statistics over online 135 million individuals identifies themself as non-binary and they are barred from
marrying to each other that to because the same-sex marriage is
not legalized in India.
3 Anshika Singh & Kirti
Shankar, Unfolding the landscape of same-sex marriages in India, 6 IJLSI 585,585-586 (2024).
7 Sharon Sarah Thawaney, India’s
pink economy, observer
research foundation, Mar. 02,2024,
https://www.orfonline.org/expert-speak/indias-pink-economy.
HISTORY OF LGBTQ+ COMMUNITY
India has a long history of
acknowledging and recognizing diverse gender identities and sexual orientations
other than the usual binary gender. Ancient Hindu scriptures contained detailed
understanding of human
sexuality, recognizing the existence of various
gender identities, beyond the binary and describing same sex
eroticism, these scriptures are the Vedas and the Kamasutra. The concept of
“Ardhanarishvra”, is a composite form of the Hindu deities Shiva and Parvati, depicted as a single individual divided vertically down the middle,
with the right half representing
Shiva (male) and the left half representing Parvati (female)8 In simple, it is the blend of both
Masculine and Feminine energies9.
The Traditional Hindu texts
acknowledge a spectrum of gender identities and sexual orientation; still societal
norms had been heteronormative largely declining the homosexuality in society. The influence of colonial
law worsened the condition of LGBTQ+ individuals, because of Section
377 of Indian Penal, 1860 code criminalized “unnatural” sexual acts,
which includes sexual relationship between same gender it was seen as a violation of the order
of nature and the individual liable for this offence
was punished with imprisonment for life or imprisonment which
may extend for 10 years and also liable
for fine10, the same-sex couple
relationship criminalization perpetuated stigma and discrimination
against the LGBTQ+ community11.
Homosexuality can be traced back to around 1500 BC during Rig Veda era, there are few famous examples from Hinduism listed
below:
In
the Hindu scripture
that is Ramayana
it states an interesting story regarding the King Dilip who
had two wives queen Chandra
and Mala (or Keshini and Sumati), he passed away without leaving
an heir, leaving
royal lineage incomplete. Lord Shiva came in
the dream and informed the widowed queens that if they made love to each other,
they would be able to produce
a child. Lord Shiva’s decree
was followed by the queens and one of them became pregnant and gave birth to a kid named Bhagirath, who is known to bring the Ganga from
the Heavens to the Earth12.
9 Anshika Singh & Kirti Shankar,
Unfolding the landscape of same-sex marriages in India,
6 IJLSI 585, 586 (2024).
11 Anshika Singh & Kirti Shankar, Unfolding the landscape of same-sex marriages in India, 6 IJLSI 585, 586-587
(2024)
12 Mehak Arora, Bhagirath born story: son of two mothers, eksukoon, https://astrolore.eksukoon.com/bhagiratha-born-story-son-of-two-mothers/.
Another story is of birth of
Lord Ayyapa which is known as Hari-Hara's son of two male deity
of Hinduism Lord Vishnu and Lord Shiva,
which could be traced back to
Samudra Manthan as well as mentioned
in the Matsya Purana in which it is written that Lord Vishnu transformed into the form of a beautiful woman named
Mohini, to fool the Asuras (demons) from getting the Amrit (Elixir of immorality). Lord Shiva fell deeply in love with Lord Vishnu
as Mohini and a child was
born as an outcome of their marriage, Lord Ayyapa he is a famous god in South
India known as child of Hari-Hara (Lord Vishnu and Shiva) and he killed a
powerful demoness Mahishi13.
The story of Iravan (the god of
trans gender community), begins in the Mahabharata he was son of Arjuna and naga princess Ulupi.
During the Great
war of Kurukshetra, Lord Krishna decided to make a human sacrifice of a person
bearing 36 auspicious signs must be made to please the war goddess Kali.
During that time there were only
three warriors possessing those signs that were on the Pandavas’ side. Those were Arjuna,
Krishna, and Iravan. Iravan was a great warrior and had no problem
sacrificing his life, but he was unmarried and he did not want
to die unmarried. There was a problem
that no woman was ready to marry a man who would die the very next day of their
marriage, so lord Krishna transformed into Mohini and spent a night with Iravan and the very next
day Iravan willingly sacrificed his life for the victory of Pandavas. Iravan is
a famous god for Transgender community as they consider him as their husband14.
Lord Rama's devotee and companion,
Hanuman, is reported to have witnessed Rakshasa ladies kissing other women in
the Valmiki’s Ramayana15.
Shikhandini is an important
part of Mahabharata, she was daughter
of Raja Drupad
of Panchal and sister of Draupadi, she was reborn
previously she was Amba and she came back to kill Bhisma Pitamah. She took birth
as a female, but she was brought
up as a male or she transformed into male.
In Mahabharata when the Pandavas
where in exile, in the last year when they had to hide their identity it is
said that Arjun was assumed to took form of Transgender.
These were few of the
prominent examples from the Hindu scriptures and from these examples it can be inferred that homosexuality was
not considered as a sin back then and even After the
13 The divine origins of Lord Ayyappan:
mythology of Sabarimala temple, (last visited
on Oct. 04, 2026), https://www.keralatourism.org/sabarimala/mythology.
14 Rahul, Iravan
– The God of the Transgender Community in India, Hinduism
facts, Apr. 03, 2025,
https://hinduismfacts.org/hindu-gods-and-goddesses/iravan/.
15 Shivani Singh, Evolution of marriages rights in India with respect
to homosexuality, 10 IJRAR 785, 788 (2023).
end of Vedic era it was normal
to have Hermans
(Young boys) by the Hindu
nobles and Muslim
Nawabs but the homosexuality
started declining during the colonial rule by the Britishers and imposition of Section 377 of Indian
Penal Code,186016, as the LGBTQ+ community faced hostility
during that time physical and psychological harm from the society.
LEGAL TRANSFORMATION: FROM CRIMINALIZATION TO
RECOGNITION OF LGBTQ+ RIGHTS
The LGBTQ+ individual's situations
have been changed overtime, from their rights lacking recognition to getting recognized under the Landmark
judgments of Honorable Supreme court and High courts as well as the struck
down of Section 377 of Indian Penal Code, 1860, which criminalizes same-sex
sexual relationship and individual committing this offence was punished17, the judgment aforesaid are, Naz
foundation V. Government of NCT of Delhi 200918,
National Legal Services Authority vs Union of India 201419
and Navtej Singh Johar V. Union of India 201820.
In the case of Naz foundation
vs Government of NCT of Delhi 2009,
the Delhi High court gave the judgment that Section 377 of Indian Penal
Code, 1860, which criminalizes unnatural offences that are voluntarily carnal intercourse against
the order of nature that includes unnatural
intercourse with any man, woman or animal, shall be punished with
life imprisonment, or with imprisonment of which may extend to ten years, and
shall also be liable to fine21. The
judgment stated that this section 377 of IPC will govern only the
non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors and will not govern
the consensual same-sex sexual relationships in private as it is the
violation of Articles 14,15 and 21. Only the individual above the age of 1822 would be considered an adult and would
be able to give consent for the sexual relationship and individual below
the age of 18 would
be considered a minor and incapable of giving such consent23.
Hence this judgment is important as it accepted
the consensual same-sex
sexual relationship of an
adult.
In the case if National Legal Services Authority vs Union of India 2014, is an
important case because of this case the third gender was legally recognized pan
India due to the landmark judgment of the Hon’ble Supreme
court which declared
that Hijras, Eunuchs,
as a separate gender
called “Third gender” apart from the gender male and female because for the
main purpose that was safeguarding their rights conferred under Part III (Fundamental rights)
of our Constitution and the laws made by the Parliament and the State
Legislature. In this judgment, the Court also directed
the Central and State government to formulate laws and policies
for their welfare,
and they should be
provided with facilities as directed by the Court
in this case such as reservations, separate
toilets, etc. It was the right of Transgender to self-identify their
gender and it was directed to the Central and
the State government to grant them legal recognition as Male, Female and Third gender. This case is landmark as it was
for the first time that transgender individuals got legal recognition and were
also assured better facilities in India by the Hon’ble Supreme Court24.
In
the case of Navtej Singh Johar vs Union of India
201825, the Hon’ble Supreme
Court delivered a transformative judgment which
decriminalizes the sexual conduct
between two consenting adult
under Section 377 of IPC as it is violative against Articles 14,15,19 and 21,
but Section 377 of Indian Penal Code,
186026, was not totally
struck down as it was still applicable for sex with minors,
non-consensual sexual acts, including rape and bestiality. This case recognized
the personal autonomy and inherent dignity
of an individual and in simple this judgment broadens the personal rights and liberty of an
individual27.
These were few of the landmark
judgments which recognized the LGBTQ+ individuals' personal autonomy, rights as well as they recognized the
transgender as the third gender in India. These judgments granted the
recognition and rights but still the matrimonial rights were not granted to the LGBTQ+ individuals, which shows the gap between
Judicial decision and Legislative reforms.
HINDU MARRIAGE ACT FRAMEWORK RECOMMENDATIONS
The Hindu Marriage Act is a central
law which came in enforce on 18 May 1955 and this act codifies the Hindu law
and governs the divorce, maintenance, validity, etc. regarding a Hindu
individual. The framework of Hindu Marriage Act is conservative as it only
applies to binary
gender and does not answer to the contemporary needs of LGBTQ+ individuals and their right to marry. Though there will be hurdles and
challenges for legalizing the same-sex marriages, but those challenges can be
resolved by the Parliament with the help of amendments as well as other tactics
such as campaigns, awareness, etc. to show that homosexuality is not
psychological issue nor it is a mental illness and giving them right to marry
someone they really want to spend their rest
of the life irrespective of the gender
of both the parties won’t
harm the societal
structure rather it ensures
harmony and peace in society as it would ensure equality in marriage after
years of the socio-legal battles they got their same-sex marriage legalize in
India.
Section 5 of Hindu Marriage Act, talks about the conditions for valid Hindu marriage28, under this section the sub-section (iii) talks
about the age capacity of the parties for the bridegroom its 21 years age and
for the bride its 18 years age, this should be amended and changed into the
parties in valid marriage should have completed the age of majority as per the
Indian majority act29 and have consented for the marriage.
Section 7 which talks about the ceremonies for a Hindu
marriage
7(1) Mentions the marriage’s solemnization in accordance with the customary rites and ceremonies of either party; this
sub-section is gender neutral and needs no change.
7(2) which mentions about
the rites and ceremonies where the Saptapadi (it is a ceremonial ritual that includes
bride and bridegroom to take seven
steps before the sacred fire)
is included it becomes
complete and binding when the last or the seventh step is taken, it should not
be compulsion as it should be at the discretion of the parties whether
they want to perform saptapadi
or not because it is seen as mandatory provision and if it is not performed the marriage is invalid but that should
not be compulsory because if
same-sex marriage gets legalize saptapadi may get performed by the same-sex
couples or may not as well as it should be taking seven steps before the sacred
fire by the couples or parties30.
The other sections do not have the specific
mention of bride
and bridegroom in them except
section 6 regarding guardianship in marriage which is now repealed by
the child marriage restraint act,197831, these other section
use gender neutral
words like petitioner, respondent and parties but
these and the Hindu Marriage
Act is perceived to be binary because
of section 5 that is compulsion
for a valid Hindu marriage that states about bridegroom(male) and bride (female)
their marriage solemnization and not the marriage solemnization of two
consenting adults.
30 Hindu Marriage Act, Act No. 25 of 1955, § 7 (India).
These were little recommendation
for the modification in Hindu Marriage Act provisions as they should be gender-neutral and the LGBTQ+
individuals should enjoy their Articles 14 to 18 Right to equality; the most
important fundamental rights conferred to the individuals by the Part III of
the Constitution of India, 195032,
which ensures equality in India but there is partiality in the conferring of
right to marriage as it is only conferred to the male and female, rejecting the
other sexualities and identities.
JUDICIAL DECISIONS IN RESPECT TO SAME-SEX MARRIAGE
This section of the paper will deal
with the judicial decisions that are related to the same-sex marriages.
In the case of Lata Singh V. State of Uttar Pradesh, 200633,
the Hon’ble Supreme Court ruled that it is a fundamental right to choose a
life partner given to the consenting adults, and they can marry outside
the caste or religion. The brief of this case is that a major girl married
a boy outside her caste, and the brothers of the girl harassed them as
well as the relative of that boy and in this case the court gave the judgment
that it is a democratic and free country, and once an individual becomes major,
he is free to marry
whosoever he/she likes and if the parents
does not approve
the inter-caste or inter-faith marriage they can cut ties
with their ward but they can't threat or
commit acts of violence and
harass that couple, the one who is found committing this offence would be
liable for strict punishment. This judgment though does not explicitly mention
about same-sex marriages, but it gives individual a choice to whom they want to
marry once they become major and it is there fundamental right to choose their
own partner34.
In
the case of Shafin Jahan V. Asokan K.M., 201835, the
Supreme Court held in
this case that it is the integral
right of the individual to marry the person they love as per Article 21 of the
Indian Constitution 1950, which
deals with the right to life and personal liberty,
as well as the Constitution guarantees right to practice,
profess and propagate religion. In this case the brief is that a woman married
a man of different religion as well she converted her religion to his religion
and the Kerala High Court annulled
their marriage that was later
restored and marriage
was considered valid by the order
of Supreme Court.
In this case there is also mention
of Article 16 of the Universal Declaration of Human Rights
underscores the fundamental importance of marriage as an incident
of human liberty, this provision simply states that a man and woman
34 Lata Singh v. State
of U.P. & Another,
2006 (5) SCC 475, (2006).
are free to choose their own life partner irrespective of any discrimination on the basis of race, religion or nationality, they have
right to marry and form a family, their marriage should be consensual as well
as the family is a natural institution that
needs protection from the
society and the state. This case is also in support
of the individual's right to marry the person they love36.
In
the case of S. Sushma v. Commissioner of Police, Greater
Chennai Police,202137, the Madras High Court gave the judgment of
this case, which banned the “conversion therapy” in India as it attempts to cure or change the sexual orientation of an individual though it lacks
a reliable evidence and medical science institutions have stated that these conversion therapy practices are ineffective
as well as potentially harmful.
The brief about this case is that two
women fell in love and elopes
from their home their parents
were not supportive and they filed
a missing complaint
andthe police found them and
harassed them which led them to approach the court to protect their rights and
autonomy. The court also issued
mandamus to the state to act against
medical practitioners which do conversion therapy as well as to
do awareness campaigns, parents counselling and to make gender-neutral restrooms
in schools and colleges. This judgment didn’t
punish the lesbian
couple, but it protected their
personal autonomy and liberty and issued mandamus to the state for the
protection of LGBTQIA+ community, this is a landmark case law as it bans the conversion therapy in India and it stops recognizing homosexuality as
mental illness and tries to change the societal bias towards the homosexual
individuals38.
In the case of Arunkumar vs The Inspector General of Registration, 201939, the Hon’ble Madras High Court
gave the judgment, in which it recognized
a transgender woman as a bride or in other words as a woman under
section 5 of Hindu Marriage Act, 1955, and directed the registrar office
to register their
marriage as well as
in this case the Court directed the Secretary to Government of the Health and Family Welfare Department,
Government of Tamil Nadu, to issue an order to prohibit the performance
of sex reassignment on intersex infants and children. In this case there was
discussion regarding the sexuality, gender, sexual orientation, etc. as well as
it was stated there are not only two
genders in our society
there are 58 gender
variants, but they are also put under the umbrella of
transgender. The category of intersex child whose genitals is different from
the male and female, as they have typically specific genitals, but in case of
intersex individual they can have both genitals and it can vary as well, they
can be
38 S.
Sushma v. Commissioner of Police, Greater
Chennai Police and Ors.,
W.P. No. 7284 of 2021.
reassigned a single gender after
medical assistance and it is typically conducted when they are infant, it is a
serious situation as it is dangerous and can hurt the child badly, the intersex
infant should be given time to grow and choose its own gender later, that's why
court is in opinion to prohibit the sex reassignment on the intersex infant
because it's dangerous. In this case, Justice G.P. Singh’s Principles of
Statutory Interpretation is that the court is free to apply the current meaning
of a statute to present day conditions. In this case it can be interpreted that
under Section 5 of Hindu Marriage Act, 1955, the term “bride” and “bridegroom”,
would include the intersex/transgender person who identifies herself as woman
or himself as man. This is a landmark case law as it can be said that for the
first time the marriage of a transgender was legally validated by the Madras
High Court in 2019. It can be seen as a first milestone of legalizing
non-binary marriage40.
These were few of the landmark case laws or
judgment that talk about the individual's right to marry a person they love as well as their personal
autonomy to choose
their partner. The same-sex marriages are not yet legalized but as
per these case laws it is their right to choose their partner, and they should
have a dignified life with their partner.
In
the case of Supriyo
@ Supriya Chakraborty & Anr V. Union of India, 202341, the Supreme
Court held that the right
to marriage is not granted
to an individual because it is not a fundamental right as well as right to
choose a partner is a fundamental right and there is a distinction between the
right to choose a partner and right to marry42.
In the judgment it was mentioned that only the right to choose a partner is a
fundamental right, while right to marry for queer couples could be granted by
the state through enactment of law that recognizes their marriage so that they
could enjoy the benefits
that are granted
to heterosexual couples.
The Court held that Section
4 of Special Marriage Act, 1954,
deals with the conditions for solemnization of special
marriages and Section 4 of Foreign Marriage
Act, 1969, deals with the conditions for solemnization of foreign marriages, only recognizes marriages
between heterosexual couples as well as intersex and transgender individuals in
heterosexual relationship can marry under these laws. This judgment held that
to receive the same benefits
as heterosexual marriages, it requires
the recognition of their marriages
that could be done by the act of Parliament. The fact about this case is that
across many Indian High Courts there were numerous petitions filed for
recognition of LGBTQIA+ couples right to marry. The verdict came in 3:2, the
right to marry for LGBTQIA+ community was declined, and they stated that it
does not violate Articles 15
41 Supriyo @ Supriya Chakraborty & Anr V. Union of India, 2023 INSC
920, (2023).
and
21, as their recognition of unions does not hamper their right to choose a
partner as well as their right to
privacy along with autonomy is not
violated43. This is an important judgment as
it declined the right to marry for queer couples and stated that it could not
be recognized by them, but by the State or in simple by the act of Parliament44.
The last stated case law is a landmark
judgment because it declined the recognition of LGBTQIA+
individuals right to marry, it stated that non-recognition of their marriage
does not violate their fundamental rights along with it was also held that right to marry is not a fundamental right
granted by the Constitution, though right
to choose is a fundamental right45. This judgment
states that the state can recognize their
marital relationship or union through
an act made by Parliament, though Judiciary has progressively
transformed the jurisprudence in respect to the LGBTQIA+ community with
delivering many landmark judgments on many key areas in interest of LGBTQIA+
individuals such as the decriminalizing of Section 377 of Indian Penal Code,
1860, recognizing their identity, their personal autonomy, right to privacy and
many more, but recognizing their right to marry is beyond the Judiciary scope
as it is the subject matter of the Central government as well as the State
government because subjects
such as marriage
and divorce are in concurrent that means on these subjects
both of government can create
law. This means
that the Judiciary cannot legalize or recognize or protect queer couple
marriage until and unless there is a statue or law made by the state. So, the
matter regarding legalizing the marriage of queer couples is left at the option of State
or Parliament, but till now
no initiative has been taken by the Central government nor the State government in this
regard.
ARGUMENTS FOR RECOGNITION OF SAME-SEX MARRIAGE
The contemporary world is changing
day by day and many changes have been accepted in the social domain of a
society, like female employment, female education, household work is not solely
women work, girl child is equal to boy child, and many more changes have come
in the society that could have not been previously anticipated, but society
adapts the changes to sustain its existence. The case of homosexuality or being
identifying themself as a member of LGBTQ+ community is still persistently seen
as a form of mental illness or psychological issues and the member of this communities have to face the social
evils as the society does not
accept them as an individual
normal human being though they are absolutely normal because there is no
scientific study that states
that homosexuality is mental illness
and can be cured
through conversion therapy.
There are many new rare cases
in which the parents accept their child and don’t care what he/she wants to identify as, this modern
thinking is rare because due to lack of parental support these individuals used to hide their identity
and orientation because
the society won’t
accept them, their parents will be ashamed
of them or they would
be forced to get conversion therapy if found out by their
parents, these kinds
of thought used to persist
lately but due to the recognition of the LGBTQ+ community they are bit relaxed
because they got their identity recognition for which they had to fight for many years as well as their rights, autonomy,
etc. are safeguards granted by judiciary time to time but still the right to marry has not been granted to them till now. There are 39 countries globally which has legalized
same-sex marriages according to the Our World in Data records46 and
the first country
to legalize same-sex
marriage was Netherland in the year 2001 and Last
year Thailand and Liechtenstein also did the same, but in India which
has the History of LGBTQ+ in Vedic time and post Vedic time too did not took
any action till now and it is not the case that it would hamper the growth
of economy as many countries
in this list are developed countries which have legalized
same-sex marriage such as United States, United Kingdom, Germany, France, and others and it can be done in India to if Parliament tries to
and grant matrimonial right as well as the social stigma
would decline in regard to homosexuality if there is a legal
backing behind done by the
government.
Till now Parliament has not taken any action
or initiative regarding legalizing same-sex marriages, but Parliament passed the
Transgender Persons (Amendment) Bill, 202647,
that worsened the conditions of these individuals as their self-identification
has been ceased no they require state verification in which they first need to apply
to District Magistrate for issuing of their transgender identity then after that
medical board will examine them and submit their report after which they would
be identified as Trans or not. This bill removes transman, transwoman and
gender queer people from this act, the definition has been narrowed down, and
self-perceived identities have also been eliminated that means to identify as
an individual of transgender gender you need to undergo surgery or medical
assistance to legally
identify as a transgender now. This bill has faced backlash because of state
verification as the state may or may not approve, these individuals are more prone to
harassment by the police
officers and medical board as well as
many individuals if they don't want to undergo surgery this bill
mandates it. Instead, of a progressive legislation for LGBTQ+ individuals this
bill has been passed down by the Parliament in 2026. This violates the National
Legal Service Authority V. Union of India, 2014 48 , which established the
self-identification of transgender individuals without undergoing surgery. The Judiciary as protector of rights
should ensure justice
and direct or recommend state to accept
the queer people
marriage and grant right to
marry to every individual.
Excluding queer individuals from their marriage
discriminates based on sexual orientation that can be
interpreted as a violation of Article 15 of Indian Constitution 49
as well as not providing LGBTQ+ individuals right to
marry is unjust as the
heterosexual couples enjoy right to marry
but they don't, it is a clear violation of Article 14 of Indian
Constitution50.
Marriage law has evolved over time
such as child marriage which was permitted before is now prohibited as per The
Prohibition of Child Marriage Act, 200651,
current act that penalizes and prohibit child marriages, inter-caste and inter-faith marriages are legally
acceptable though societal acceptance is less but legally every individual have a right
to choose their own partner
as per many precedents and widow remarriage which was not permitted previously is also now practiced as per
The Hindu Widows’ Remarriage Act, 185652, which ensures
marriage of widow after the death of her husband she can legally marry.
The same-sex marriages
should also be accepted in the marriage
law because without the legal recognition of queer couples' union they won't be able to enjoy the
access of joint adoption, spousal
inheritance, joint bank accounts, relief
in taxation, and many other rights are enjoyed by heterosexual
couples.
The definition of marriage
should be amended
to provide LGBTQ+
individual right to marry under the Hindu Marriage Act, 1955,
though there would be few hurdles but those difficulties in amending won’t be more than the deprivation from right to marry for the LGBTQ+ individuals as well as their dignified life which has been ignored for more
than decades shall be prioritized so that they could enjoy a dignified life
with their spouse without any hiding from society and law. The Hindu Marriage
Act, 1955, amendment would also lead to amendment in other statutes to such as
adoption law, taxation law, maintenance law, inheritance law, succession law,
etc. The government should be vigilant should provide this right to marry to
the LGBTQIA+ individuals as they should also be treated as normal citizen
like other binary individuals treated including this right to marry, if the government feels like it is impossible to do so many amendments in personal laws they
should enact a new act in respect to LGBTQIA+
46
Hannah Ritchie & Pablo Arriagada, almost 40 countries have legalized
same-sex marriage, Our world in data, Feb. 24, 2026,
https://ourworldindata.org/data-insights/more-than-30-countries-have-legalized-same-sex-marriage.
47 The Transgender Persons (Protection of Rights) Amendment Bill, 2026, Bill No. 79 of 2026 (India).
49 INDIA CONST. art. 15.
52 The Hindu Widows’ Remarriage
Act, 1856, No. 15, Act of Legislative Council of India, 1856 (India).
individuals right to marry,
divorce, maintenance, adoption, succession, and many other area of interest
that are enjoyed by binary individuals or heterosexual couples.
CONCLUSION
Homosexuality is not a mental
disorder or illness that could be treated by conversion therapy, on the
contrary conversion therapy does not ensure scientific results and medical
institutions has stated that these therapies are dangerous for an individual,
that's why the court the court ordered to prohibit its use in the case S.
Sushma V. Commissioner of Police in 202153.
In India homosexuality is not a new
concept, India has a deep-rooted history that includes other sexual identity
and sexual orientation, few of such examples are birth of lord Ayyappa, birth
of king Bhagirath, Shikhandini, Aravan, Khajuraho sculptures, and many more examples are present
in the Vedic era and Post Vedic era, the homosexuality was not a punishable
offence in the medieval history too because the Hindu Nobles and Mughal Nawabs
had Herman (young boy) with them but it later got punishable under British rule as they enacted Section
377 of Indian Penal Code,
1860, that deals with Unnatural offences under which the sexual acts against
the natural order are punishable and the offender would be punished with
imprisonment or fine or both.
Later the Judiciary progressively transformed the LGBTQ+
jurisprudence by delivering judgment in support of their recognition and their personal
autonomy.
The right to marry is not granted
as a fundamental right, but the right to choose a partner is a fundamental
right that has been held in the case of Supriyo @ Supriya Chakraborty V. Union of India, 202354,
as well as this case judgment refused to grant right to marry to the LGBTQIA+
individuals and the Hon’ble Supreme Court stated that only the State can grant
them the recognition of their union, but till now no action
is taken regarding
legalizing same-sex marriages.
India is still silent in this
matter for legalizing same-sex marriage whereas other 39 countries as per the
records of Our World in Data55, which
also includes developed nations such as Unites States, Canada, France, Germany,
United Kingdom, and others. India should also acknowledge that right to marry
should be conferred to everyone irrespective of their gender and sexual orientation.
55
Hannah Ritchie & Pablo Arriagada, almost 40 countries have legalized
same-sex marriage, Our world in data, Feb. 24, 2026,
https://ourworldindata.org/data-insights/more-than-30-countries-have-legalized-same-sex-marriage.
If
parliament is not taking any action in this regard
the judiciary should
intervene and provide
right to marriage to queer people
as it is a basic right that everyone should
enjoy. The parliament should amend the statutes
regarding marriage so that the LGBTQ+ individuals enjoy each right that comes along with right to marry such as
adoption, succession, inheritance, tax relief, etc. If amending statutes is not
possible it should legislate a new act regarding their marriage and rights and
obligations coming along with it.
Changes are natural in a society
because of law of nature, and the law should not remain static it should answer
the needs of people and positively adapt the evolving
changes for the betterment of people
and to ensure peace, justice and liberty in a society. This is the moment that India realizes that it is unjust
to keep the LGBTQIA+ individuals deprive from right to marriage,
their marriages should be
legalized in India and should enjoy equal status as a marriage of heterosexual
couples.
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1.
Shivani Singh,
Evolution of marriage
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21. Hannah Ritchie & Pablo Arriagada, almost 40 countries have legalized same-sex marriage, Our world in data,
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How to Cite This Article
ROHIN VERMA, MS. RITU MALIK, Reimagining Same-sex Marriage under Hindu Marriage Act in an Era of Expanding LGBTQ+ Rights in India., White Black Legal – International Law Journal, ISSN: 2581-8503, Vol. Volume 4, Issue VOLUME 4 ISSUE 2, October 2026, pp. 1363-1381. Available at: https://www.whiteblacklegal.co.in/details/reimagining-same-sex-marriage-under-hindu-marriage-act-in-an-era-of-expanding-lgbtq-rights-in-india
Author & Publication Record
Authors: ROHIN VERMA & MS. RITU MALIK
Registration ID: 107213 | Published Paper ID: WBL7213 & WBL7214
Year: Oct- 2026 | Volume: 4 | Issue: 2
Approved ISSN: 2581-8503 | Country: Delhi, India
Page No.: 1363-1381
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