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The Right to Same-Sex Marriage as a Constitutional Right

Karunakar & Rachana R. Rammohan[*]


Homosexuality has been defined as sexual attraction or activity between members of the same sex. The acceptance of homosexuality has undergone tumultuous developments in the 21st century, with stances of various nations lying on a spectrum that ranges from celebration to criminalisation. On the one hand, countries like Brunei and Iran continue to consider the homosexual activity a capital crime. On the other hand, countries like Argentina and Denmark continue to make great efforts in order to extensively develop LGBTQIA+ rights.

After decriminalizing homosexuality in 2018, India now stands at the precipice of a future that could be much more inclusive. A division bench of the Delhi High Courtshall determine the scope of multiple pleas filed in the last year, seeking the legal recognition of homosexual marriages under the ambit of the Foreign Marriage Act of 1969, the Special Marriage Act of 1954 and the Hindu Marriage Act of 1955. The petitioners contested that the statutes in question are gender-neutral and hence, afford the right to marriage to the homosexual community as well. The Supreme Court has previously held in Navtej Singh Johar v Union of India that the LGBTQIA+ community is entitled to all constitutional rights and liberties, as well as indiscriminate protection under the law.

The authors shall examine the extension of such rights to that of marriage, which has been ordained a fundamental right, as well as examine the merit of the arguments asserted by the petitioners and the central government in light of the legislation referred to, and international developments regarding the same.


The right to freedom of marriage has been held to be an intrinsic part of Article 21 of the Constitution by the Supreme Court in the case of Shafin Jahan v. Ashokan K.M., as the power of each individual to make judgments on matters essential to the pursuit of happiness, is fundamental to the liberty guaranteed by the Constitution as a basic right.

In the case of Lata Singh v. State of U.P., the Supreme Court explicitly recognized the rights of the petitioner, who was being persecuted by her family because of her inter-caste marriage, and held that an adult has the liberty to marry whomever they like. This stance has been by the Supreme Court when it took suo moto cognizance of a woman gang-raped on the orders of a village court for having a relationship with a man of a different community. Herein, the court stated that since Article 21 of the Constitution has an aspect of freedom and choice, it will also subsume under it the freedom of choice in marriage.

Furthermore, in the case of Shakti Vahini v. Union of India, the Supreme Court maintained that two adults have the right to choose each other as life partners. Such choice is in the exercise of their rights under Articles 19 and 21 of the Constitution. Moreover, in the case of Justice K. S. Puttaswamy (Retd.) v. Union of India, it was held that privacy is a collection of rights and interests that constitute the foundation for organised liberty, including the protection of personal intimacies as well as individual autonomy. The right to make choices is regarded to be fundamental to a person’s way of living and could not be interfered with by the State without compelling necessity and/or harm caused to other individuals.


There has been a paradigm shift in the approach of the Indian judiciary concerning the rights of homosexual persons. The Supreme Court in the case of Government of NCT of Delhi v. Union of India held that the courts must consider the fluid evolution of the manner of interpreting the Constitution. They must be flexible and interpret any particular provision in consonance with the object and purpose of the Constitution. This forms the basis for the Doctrine of Progressive Realization of Rights. Presented as part of the Navtej Singh Johar v. Union of India judgment, this doctrine sets up safeguards against future attempts of regression against the LGBTQIA+ community and realizes the need for progress. This entails a need for the courts to recognize that constitutional rights and statutory provisions do not serve any purpose unless they are subjected to fresh interpretation suited to the dynamic times they serve.

The judgment envisions a holistic view towards citizenship for members of the LGBTQIA+ community and is meant to serve as a stepping stone for LGBTQIA+ rights. Moreover, J. Chandrachud also opined that the law must take all possible measures to grant and safeguard equal citizenship and rights in all its manifestations. Recognising the right to same-sex marriage would be a step in the direction towards fulfilling the promise made in the Navtej Singh Johar judgment. Therefore, it is imperative that the rights be recognised to the full extent because anything less than that would result in a betrayal of the citizens’ trust.


From an international standpoint, Article 16 of the Universal Declaration of Human Rights and Article 23 of the International Covenant on Civil and Political Rights assert the ‘Right to Marriage’ as a comprehensive and omnipresent civil right, unencumbered by hetero-normativity. Additionally, it places responsibility upon the State as the guardian of the family formed of such marital union.

In most countries where same-sex marriages have been legalized, the judiciary has had to strike down marriage laws that used gendered terms, as these legislations were explicitly excluding same-sex couples from the benefits of the legislation.

Section 4 of the Special Marriage Act, which lists the “conditions relating to solemnization of marriage”, uses the term “persons” or “parties” instead of gendered terms. In Chapter II, the only place in which the words “wife” or “husband” are used is in the proviso to Section 12(2). In order for the marriage to be binding, each party needs to say the following statement to each other in the presence of the marriage officer and three witnesses – “I, (A), take thee (B), to be my lawful wife (or husband)”. The same clause is also present in Section 5 of the Hindu Marriage Act and Section 13(2) of the Foreign Marriage Act.

The above-mentioned contentions were presented before the Hon’ble High Court of Delhi, wherein the petitioners aim to secure legal sanction for homosexual marriage under the purview of existing legislation. By extensively focusing upon the gender neutrality of said legislations, as well as precedent that provides and protects individual autonomy, the petitioners argued that this case affords a unique opportunity to the judiciary, which enables them to provide the homosexual community with marital rights and the additional benefits that arise from it.

The central government, in their counter-affidavit, argues that the Parliament has framed the marriage laws in the country and that they are fundamentally tested upon the touchstone of personal laws/codified laws. Hence, they are traceable to certain religious communities. It further states that the concept of homosexual couples living together and having a sexual relationship is not in consonance with the Indian concept of a family since it presupposes a relation between a man and woman. The central government argues that the ramifications of the disruption of this structurewould cause a complete havoc with the delicate balance of personal laws in the country.”

However, such submissions are in the context of the current statutory provisions rather than the evolution of statutes in the context of the needs of the current situation. The fact that these statutes place no explicit prohibition on homosexual marriage and are predominantly gender-neutral suggests that courts have a wider scope of analysis with regards to this issue. In the case of State of Goa v. Western Builders, the Supreme Court concluded that if a statute remains silent with no explicit prohibition, then it should be interpreted in a manner that advances the cause of justice. This view is further supported by Election Commission of India through Secretary v. Ashok Kumar, where it states that if the statute is silent, it is the responsibility of the judiciary to resolve disputes to further the principles of justice equity and good conscience. The position conveyed in the aforementioned precedents, hence, turns out to be favourable to the petitioners.

Furthermore, the jurisprudence of the Hon'ble Court has previously advocated for the rejection of public morality as a compelling state interest that might justify limits on human liberty imposed under Article 21 of the Constitution. While distinguishing between public and constitutional morality, the Court elucidated that unlike constitutional morality, popular morality is founded on changing and subjective ideas of good and evil. The traditionalist and regressive views on marriage, advanced by the Centre in their submissions, are also directly in conflict with the Doctrine of Progressive Realization of Rights, which affirms that the State should not take measures or steps that intentionally lead to regression on the enjoyment of rights under the Constitution or otherwise.


The right to marry an individual of one’s choice has been established and reiterated by the judiciary as an intrinsic aspect of a person’s freedoms and personal liberty. Additionally, it is the duty of the judiciary to incorporate constitutional morality and judicial creativity to successfully interpret the provisions that have been called into question so that they may protect the rights afforded to the people of our nation.

The US Supreme Court, in Obergefell v. Hodges, opined that judicial precedents and cultural traditions have placed marriage at the core of the nation’s social order and it protects children and families as without the safety and stability that marriage offers, children are more likely to suffer the stigma that their families are in any way lesser. Applying the same rationale, it would be prudent to argue that the US Supreme Court has not left any doubts while justifying why the right to marriage should be enforced with equal force for same-sex couples as well. Given that it has been incorporated as a fundamental right under Article 21 as well.

Hence, it is even more essential for the judiciary to rectify its shortcomings as even though the Navtej Singh Johar judgment provided much-needed relief to the homosexual community in India, it stopped short of granting them the right to marriage. Judicial intervention is essential after the Supreme Court placed reliance upon the doctrine of progressive realisation of rights in Navtej Singh Johar and conceded that the judiciary must consider the fluid evolution of the manner of interpreting the Constitution.

It is crucial to emphasise, however, the glaring limits of this gender-neutralisation rhetoric, which fails to protect the interests and rights of the transgender population. For members of this community, there is no legislation or precedent that addresses the issues of marriage, divorce, or adoption. Since the marriage statutes provide scope for homosexual couples to get married without any drastic amendments, it is imperative that the apex judiciary take cognizance of the matter.

Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

-J. Kennedy

[*] Karunakar is a third year student at National Law University Jodhpur. Rachana R. Rammohan is a second year student at National Law University Jodhpur.

Views are personal.


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