How will India’s Supreme Court decide on same sex marriage? The arguments made on behalf of 18 couples were stiffly contested by an alliance of conservative bodies, representing faiths, with the most archaic being offered on behalf of the union of India

10, Oct 2023 | CJP Team

The topic of same-sex marriage has taken centre stage in the Indian legal landscape, with a significant case pending judgment in the esteemed halls of the Supreme Court. This article aims to serve as a thorough prelude, a curtain raiser to the upcoming decision on a number of petitions that support the legalization of same-sex unions in the nation.

The importance of this issue cannot be understated, as it touches upon fundamental rights, privileges, and obligations that are bestowed and protected by the law. The Supreme Court has meticulously heard arguments from petitioners and respondents for ten days, including the union government, the National Organization for Children’s Rights, NCPCR, and a group of Islamic scholars known as the Jamiat-Ulama-i-Hind.

Petitioners’ Demands

Eighteen couples have petitioned for the legal recognition of same-sex marriages. The petitioners involved in these cases have fervently campaigned for fundamental reforms to the legal landscape, seeking to establish a more inclusive and just society. Their pleas can be summarised as follows:

  1. Recognition of Same-Sex Marriages: The petitioners contend that refusing same-sex unions legal recognition is discriminatory and violates the equality, privacy, and dignity rights of LGBTQIA+ people. They seek a judicial declaration that same-sex marriages should be treated on par with heterosexual marriages, granting equal legal rights and benefits.
  2. Non-discrimination based on Gender and Sexual Identity: Laws and regulations, according to the petitioners, cannot discriminate against anyone based on their sexual orientation or gender identity. Any categorisation that privileges one group over another based on sexual orientation or gender identity is unlawful since it denies LGBTQIA+ people equal protection under the law.
  3. Reinterpreting Current Laws: The petitioners ask the courts to construe current marriage laws in a way that these are inclusive and take the rights of the LGBTQIA+ community into account. Reinterpreting the law would ensure that same-sex unions are not prohibited purely because of their sexual orientation or gender identity.
  4. Repealing or Amending Discriminatory Provisions: A number of petitioners want certain parts of the marriage laws that are discriminatory repealed or changed. The petitioners contend that gender-neutral wording should be used in place of these clauses to cover all couples, regardless of gender identification.
  5. International Commitments to Human Rights and Constitutional Morality: The petitioners emphasize the importance of constitutional morality in creating effective laws. They also stress India’s responsibilities to international human rights and call for a match between national legislation and those standards.
  6. Protecting “Chosen Families”: Some petitioners call for the legal recognition and protection of “chosen families” or “atypical families” beyond the conventional bounds of marriage, blood relationships, or adoption.
  7. Comprehensive Safety and Legal Protections: A number of petitioners want complete legal safeguards for the LGBTQIA+ community, including measures to address the violence, discrimination, and harassment faced by them.
  8. Positive State Responsibility to Affirm Rights: The petitioners stress that it is the state’s responsibility to acknowledge and defend the rights of LGBTQIA+ people.

Union government’s position

The Union government, headed by the right-wing Bharatiya Janata Party (BJP)  has vehemently opposed any constitutional declaration that would legalise same-sex marriages, arguing that it does not align with the Indian concept of marriage. The key arguments presented by the government in its counter-affidavit can be summarized as follows:

  1. The Uniqueness of the Indian Family Unit: The government argues that a relationship between a biological man as a husband, a biological woman as a wife, and their offspring produced out of the union is the essence of marriage in India.
  2. Heterosexuality and Statutory Recognition: According to the government, current marriage-related personal legislation and statutory enactments exclusively recognize heterosexual partnerships.
  3. Issues with Current Laws: The government points out potential challenges in matters relating to adoption, divorce, maintenance, and inheritance if same-sex marriages were to be legally recognized.
  4. Interest of the State in Heterosexual Marriages: According to the government, only recognizing heterosexual unions is consistent with past practice and essential to the survival and continuity of the State.
  5. Fundamental Rights and Reasonable Classification: According to the government, Part III of the Constitution does not infringe any fundamental rights by refusing to recognize same-sex unions.
  6. Privacy and the Right to Marry: The government acknowledges that marriage includes private persons and has an impact on their lives, but insists that it is more complex than a simple privacy concern.

Arguments made in Court

During the ten-day proceedings, the petitioners and respondents engaged in a robust exchange of arguments. The key arguments made during the hearings can be summarized as follows:

  1. Fundamental Right to Marry: The petitioners argued that the LGBTQIA+ community has a fundamental right to marry, guaranteed under the Constitution.
  2. Gender-Neutral Interpretation of SMA: The Special Marriage Act, 1954, with its gender-neutral language, was crucial in the hearings. Petitioners argued that this phrase does not impose any gender-based restrictions and should be interpreted as inclusive of same-sex couples.
  3. Innate Characteristics and Equality: Advocates emphasized that laws must not discriminate based on innate characteristics, such as sexual orientation and gender identity.
  4. Procreation and Marriage: The respondents argued that marriage’s primary purpose is procreation, and legalizing same-sex marriages would go against this traditional understanding.
  5. Notice Period under SMA and Privacy Concerns: During the hearings, the notice period clause under the Special Marriage Act, 1954, was questioned by the petitioners for potentially violating personal privacy and autonomy.
  6. Recognition of Same-Sex Marriages Abroad: The issue of recognizing same-sex marriages performed abroad under the Foreign Marriage Act, 1969, was raised during the hearings.
  7. Parenting and Child Welfare: Concerns about child welfare were expressed, with respondents arguing that same-sex parents might not provide adequate care.
  8. Parliament’s Role vs. Judiciary’s Role: The respondents contended that the issue of same-sex marriages should be left to the Parliament rather than the judiciary.

Key Issues for the court to consider

The court will take into account several key issues when rendering its decision, including whether members of the LGBTQIA+ community have a fundamental right to marry, and if so, whether the court can make a declaration to this effect.


In conclusion, the pending judgment on the legal recognition of same-sex marriages is a groundbreaking decision that holds significant implications for the rights and equality of the LGBTQIA+ community in India. The court’s ruling will not only shape the legal landscape surrounding marriage but will also reflect the nation’s commitment to inclusivity, dignity, and non-discrimination.

The fervent arguments presented by the petitioners underscore the fundamental right to marry and the need for gender-neutral interpretations of existing laws. The government’s opposition raises concerns about preserving the uniqueness of the traditional Indian family unit. As we await the Supreme Court’s decision, it is crucial to recognise the historic importance of this case and its potential to create a more inclusive and just society


Image Courtesy:


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