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Journey of India towards Legalising Gay marriages


Abraham Lincoln once said - “Those who deny freedom to others, deserve it not for themselves.”

On 6 September 2018, the Supreme Court of India Decriminalized Section - 377. It was a moment of great triumph for everyone in India but the question “Can you legally get married to the same sex in India?”, still remains at par. Homosexuality was never illegal or a criminal offence in ancient Indian and traditional codes but was criminalised by the British during their rule in India until 6 September 2018, when SC finally put an end to a 158-year-old colonial law. Decriminalizing something, however, does not mean it is declared legal but before diving into if marrying your other half from the same sex is legal or not, let us first understand what Section 377 is and what it means to decriminalise it. 

Section 377 by law refers to 'unnatural offences' and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine. 

A five-judge constitution bench headed by Chief Justice Dipak Misra decriminalised part of the 158-year-old colonial law under Section 377 of the IPC which criminalises consensual unnatural sex. The apex court, however, said other aspects of Section 377 of IPC dealing with unnatural sex with animals and children shall remain in force. 

Here are a few highlights of the decision:

  • Section 377, IPC, to the extent that it criminalises consensual sex between two adults is arbitrary, irrational and hence liable to be partially struck down 

  • Sexual orientation is a biological phenomenon, any discrimination on this grounds is violative of fundamental rights

  • LGBT community possesses the same human and fundamental rights as other citizens 

  • Courts must protect the dignity of an individual as “Right to Live”, with dignity is recognised as a fundamental right 

  • Any kind of sexual activity with animals shall remain penal offence under Section 377 of the IPC 

“CJI Dipak Misra, speaking for himself and Justice A M Khanwilkar, says denial of self-expression is akin to inviting death.” 

Now, let’s come to the main question - Can you legally get married to the same sex in India or not?

Let’s say it’s complicated and as they say “We might have won the great war but we still need to win the last war.”

When two individuals decide to spend the rest of their lives with each other, they often legalise it by getting married. Registering for a marriage certificate has its benefits as well, some of those are listed below:

  • Tax Benefit - Unlimited marital tax deduction is the biggest tax benefit a married couple can receive

  • Filing Taxes Jointly - This can again help you save tax

  • Financial Benefits like Social Security - If either you or your spouse don't qualify for your own Social Security benefits, you can receive the other spouse's benefits 

  • IRA Benefits - An Individual Retirement Account can be used a few ways in the course of a marriage, including rolling over a deceased spouse's IRA to your own, or you can contribute to a spousal IRA, which is an account that lets an employed spouse contribute to an unemployed spouse's retirement account

  • Inheritance Benefits -  A spouse can inherit an entire estate without tax consequences

  • Health Insurance Benefits - If you're married, you can usually get on your spouse's health insurance and get a family rate 

  • Leave Benefits - Through your employer, you can usually take family leave if your spouse is sick, or bereavement leave if your spouse or someone in your spouse's immediate family passes away

These are a few of the many benefits that a couple can avail if they register their marriage. As same-sex marriage is not illegal in India, the gay or lesbian couples in India cannot avail these benefits. There are however certain legal implications that come into play. All statutory laws relating to solemnisation and registration of marriages in India, whether codified or customary laws relating to Hindus, Muslim, Parsi or Christians or the civil marriage law, only legally recognise heterosexual marriages. The laws provide for marriage between ‘husband’ and ‘wife’, ‘man and ‘woman’ or ‘bride’ and ‘bride-groom.’ While gay marriages don’t have legal sanction they are not a criminal offence either. You cannot be prosecuted and sentenced to prison, or even fined, for solemnising a same-sex marriage per se, as the law is simply silent on the subject in India

“It’s like asking if I marry an alien (extra-terrestrial being) will it be recognised in law or will I be punished? It will not be recognised in law and neither will you be punished for it because the law simply does not take notice of ‘aliens’,” explained Suraj Sanap, from Lawyer’s Collective.

To put it simply, same-sex marriage per se is not ‘illegal’ or ‘legal’ in India. No penalties or adverse consequences in law flow from merely solemnising a same-sex marriage.  

Here are a few reasons why we think, same sex marriage should be legalised:

  • It will bring a decrease in the divorce rates

  • It does not in any way affect the heterosexual community

  • Equality rights and equality is not something people should struggle for

  • It will bring an increase in the rate of adoption

  • Marriage is a very personal decision and no one should be forced into it

Do you think Gay Marriages should be legalised in India? Let us know in the comment section below!

Reviewed by:
Kriti Rampal
Published on 27-Jun-19

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