Recognition of same-sex unions in India
India does not recognise same-sex marriage or civil unions. Additionally, it does not possess a unified marriage law. Every Indian citizen has the right to choose which civil code 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. The following acts cover India's marriage laws:
- Indian Christian Marriage Act of 1872
- Special Marriage Act, 1954
- Hindu Marriage Act, 1955
- Parsi Marriage Act, 1936
- Anand Marriage Act, 1909
- Muslim Personal Law (Shariat) Application Act, 1937
None of these codified marriage acts explicitly defines marriage as between a man and a woman. Neither do these acts explicitly prohibit same-sex unions. However, the laws have "heteronormative underpinnings" and have been interpreted not to recognise same-sex unions.
The state of Goa is the only Indian state to have a unified marriage law. Every citizen is bound to the same law, regardless of their religion. However, Goa's Uniform Civil Code explicitly defines marriage as being between members of the opposite sex.
Since 1987, when the national press reported the story of two policewomen who married each other by Hindu rites in central India, 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 female (male-female couples also resort to suicide or to elopement and religious marriage when their families oppose their unions).
In "Same-Sex Love in India: Readings from Literature and History", author Ruth Vanita analyses dozens of such marriages and suicides that have taken place over the last three decades, and explores their legal, religious and historical aspects. She argues 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. State recognition is not sought by most couples because it confers few benefits. Most couples seek the validation of family and community, and several female couples in rural areas and small towns have received this validation.
There have also been a couple of high-profile celebrity same-sex civil partnerships, such as the civil union of designer Wendell Rodricks with his French partner Jerome Marrel, conducted under French law in Goa.
In December 2017, a dual Indian-Vietnamese same-sex couple held a wedding ceremony in Yavatmal in the state of Maharashtra, alongside family, friends and well-wishers. In April 2018, a lesbian couple got married at a mass wedding ceremony in the city of Agra, after one of them dressed as a man. However, some family members discovered, and urged them to separate. Police later intervened.
Traditionally, India identifies same-sex unions to be a trans-rooted alien culture-bound syndrome and associated social disorder. Hence, LGBT groups are working in the backgrounds for a step by step approach, required to tackle all the problems and rights of LGBT citizens in India. The previous focuses of these groups were to repeal Section 377 of the Indian Penal Code and to enact non-discrimination laws. Nevertheless, LGBT rights agencies are optimistic and are working on winning the right to same-sex marriage, inspired by the financial support and progress achieved in several Western countries. In April 2014, Medha Patkar of the Aam Aadmi Party stated that her party supports same-sex marriage.
Uniform Civil Code
"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 is similarly defined as the living together of a man with a woman, a man with another man, a woman with another woman, a transgender with another transgender or a transgender with a man or a woman. It also provides 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. It also mandates the registration of all marriages. In addition, the draft states that "all married couple 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 provides for the repeal of all of India's marriage-related laws (the Hindu Marriage Act, the Hindu Succession Act, the Muslim Personal Law Application Act, the Dissolution of Marriage Act, the Indian Christian Marriage Act and the Parsi Marriage Act, among others)
The draft has been submitted to the Law Commission of India. Whether India should adopt a Uniform Civil Code is a matter of ongoing political debate in India. The Bharatiya Janata Party supports it, while the Indian National Congress and the All India Muslim Personal Law Board oppose it.
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. In late May, the Commission began seeking the views of religious groups. Muslim groups oppose a uniform civil code because such a code would ban triple talaq, polygamy and would not be based on Sharia law, unlike the current Muslim Personal Law, which governs Indian Muslims.
2018 Supreme Court rulings
On 5 February 2018, the Supreme Court ruled, in a case involving caste councils interfering in marriages, that "no one, either individually or collectively, has the right to interfere in a marriage between two consenting adults."
In March 2018, the Indian Supreme Court, in the case of Shakti Vahini vs Union of India, held that an adult has the fundamental right to marry a person of their choice. Thus, activists feel that a joint reading of Shakti Vahini and Navtej Singh Johar v. Union of India, the September 2018 ruling decriminalising consensual sex in private, could yield the recognition of same-sex unions within the Special Marriage Act.
On 6 May 2018, the Supreme Court ruled that a 20-year-old Kerala 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", and held that live-in relationships (cohabitation between unmarried couples) are now recognized by the law.
Pending court case
In 2019, two women from Hamirpur, Uttar Pradesh, who married symbolically, tried to get their marriage recognised at the registrar's office, who denied citing lack of relevant provisions. The couple's lawyer, Daya Shankar Tiwari, has said they will challenge the registrar's decision to not legally recognise the marriage.
According to a 2015 Ipsos poll, 29% of Indians support same-sex marriage, while 18% support other forms of legal recognition. 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 Indian people were in favour of legalising same-sex marriage, while 35% were opposed to its legalisation. A survey by the Varkey Foundation found that support for same-sex marriage was higher among 18 to 21-year-olds at 53%.
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