The Long Fight for Same-Sex Marriage in India Could Soon Be Won

NEW DELHI — At long last, same-sex marriage could soon be recognized under Indian law. As of April 18 of this year, a total of 18 petitions have now been introduced to the high court to legalize same-sex marriage.

Last November, the first of the petitions was introduced when two same-sex couples filed writ petitions arguing that Section 4(c) of the Special Marriage Act — which only acknowledges marriage between a “male” and a “female,” thereby excluding same-sex couples from the existing legal framework to wed — is unconstitutional.

Currently, basic rights for LGBTQIA+ persons are recognized under Indian law, including self‐determination of gender and identification as a third gender. And while same-sex marriage is not criminalized — and does still take place — it is not legally recognized, barring couples from making decisions as a new family. For example, in India, a couple can only adopt a child after they’ve been married for two years, excluding same-sex couples by default. This includes children adopted from another country.

Nor can they pursue parenthood via surrogacy: The Surrogacy Act only permits an Indian heterosexual couple, a widow, or divorced woman between the ages of 35 to 45 years to avail surrogacy. According to the Hague Convention on Adoption, an inter-country adoption can only take place after the authority in the receiving state (in this case, India) has determined that the prospective adoptive parents are eligible and suitable to adopt — again, excluding same‐sex couples, whose union remains illegitimate under Indian law.

The Indian government is firmly opposed to marriage equality, claiming that same-sex marriage “went against religious values and seriously affects the interests of every citizen,” dismissing it as an “urban elitist” concept that disadvantaged the rest of the country.

In a rare show of consensus despite the ruling Hindu nationalist government’s systemic discrimination against India’s religious minorities (which has led to a rise in anti-communal violence across the country), Hindu, Muslim, Christian, and Sikh organizations have all gathered in support of the government on this issue.

Religious groups standing behind the government, like Jamaat-e-Islami Hind, the Communion of Churches, and the Akal Takht (a Sikh organization) — along with representatives of the Ajmer dargah and Jain gurus — claim that same-sex marriage is against the natural family order per their differing scriptures.

That doesn’t mean that they oppose same-sex marriage on the same grounds: In a letter to the Supreme Court, Rashtriya Swayamsevak Sangh, a prominent right-wing Hindu-nationalist organization, argued that “legalizing same-sex marriage will vanish the very meaning, motive or belief of the Hindu Marriage Act, clearly depicting how liberal thoughts of other religions or western countries are overpowering our country and affecting the nature of Hinduism.”

Before the imposition of colonial-era laws under British rule, India had its own texts, which detailed the practice of homosexuality and same-sex intercourse.

There are certain characters in some versions of the Mahabharata — a Sanskrit epic of ancient India that acts as an important source of information on the development of Hinduism — who change genders, like Shikhandini, a feminine trans warrior figure who marries a woman and, at one point, changes to man through divine intervention. But the Manusmriti — considered the most authoritative of the books of the Hindu code — also has various punishments against homosexual acts and relationships, like shaving a woman’s head, or cutting off her fingers, for engaging in same-sex intercourse.

The first codified legislation on homosexuality was the colonial-era Section 377 of the Indian Penal Code, 1860, which criminalized consensual sexual acts between same-sex partners as “carnal intercourse against the order of nature.” The law, which remained in place for nearly 160 years, also grouped gay, lesbian, bisexual, and trans relationships with acts like bestiality and sodomy.

Section 377 was repealed in 2018, but India’s LGBTQIA+ community still faces systemic discrimination at the best of times, and insidious violence at the worst. As in other countries with laws hostile to the community, there have been documented instances in India of conversion therapy, forced heterosexual marriage (particularly for queer women), and even “corrective rape” against LGBTQIA+ persons.

Aruna Desai, co-founder of Sweekar— an organization that supports families with LGBTQIA+ children — recalls one phone call during the pandemic lockdown from a young man who was forced into conversion therapy after coming out to his family. There, he was forced to take medication and perform “absurd” physical exercises in the hopes of “curing him.” He reached out to Sweekar to intervene, who spoke with his family for over two hours over Zoom. Eventually, she said, she broke through. “He called me back the next day saying that his uncle, the highest member [of his family], came to his room with tears in his eyes, apologizing for everything they had done to him,” said Desai. “He told me that his uncle said they accept him for whoever he is.”

But that’s an example of the best-case scenario. “Not many have that kind of privilege, she said. The organization regularly receives calls in which the family is resorting to physical violence with their LGBTQIA+ children — especially when the children are trans.

But many in the community — and their allies — hope that a change in the law will go a long way to extend protection and acceptance to this population.

“The Indian Supreme Court have had a checkered history as far as LGBTQ rights are concerned,” said Rohin Bhatt, a non-binary queer rights activist and lawyer who is part of the legal team representing the litigants. “But we hope that the Supreme Court rules in favor of fundamental rights.”

“It is imperative for us to see this law come into existence,” said Desai. “We as parents have witnessed the struggle of our children closely,” she said. “If the law comes into being, then people will slowly start accepting it.”

There have been promising moments during the hearing, such as that from Chief Justice of India DY Chandrachud, one of the three bench members hearing the case: “Even when the Special Marriage Act says ‘man’ and ‘woman,’ the very notion of a man and a woman is not an absolute based on genitals.”

He also acknowledged that at stake in the case were the constitutional rights of life, liberty, dignity, equal treatment of members of the LGBTQIA+ community.

“It seemed like the judges were on our side,” said a hopeful Desai. “A lot of statements given by the bench was for the community.”

If the law is amended, Bhatt said, “for the first time, we will see that queer Indian citizens will be identified as total equals. This means that every right that is for heterosexual couples will now be given to couples who are not straight.”

If India legalizes same-sex marriage, it will be the second Asian country to do so after Taiwan. A decision is anticipated after the summer.