The irony of the fact in India is that today society abhors homosexuality while the texts of ancient Indian literature like Vedas, Puranas, the Kama Sutra, and writings of other medieval Urdu poets, provide evidence of same-sex relationships. Also, in a cross-sectional survey on sexual behaviours conducted in 2001 by the Population Council (New Delhi), in collaboration with Centre for Population Studies (London), found that same-sex activities were prevalent in rural India. The survey covering 2910 rural men in 5 districts each of Haryana, Uttar Pradesh, Rajasthan, Orissa and Karnataka, reported that 10% of the single men and 3% of the married men are engaged in same-sex behaviour . Thus, it shows that ‘the male-male and female-female sex is not uncommon’ in India.
Still, not permitting same-sex marriages unfairly discriminates against members of the LGBT community who in spirit is the most oppressed group facing discrimination on the basis of gender. Society sees homosexuality as a “sexual abnormality” or “genetic disorder” thereby discriminating them by defining their rights and failing in every aspect of acknowledging it as something which is absolutely normal.
Rights of Same-Sex People
For the first time, in the case of the Naz Foundation v. Govt. NCT Delhi, the Delhi Court held that Section 377 of the Indian Penal Code which criminalises carnal intercourse against the order of nature, is unconstitutional in so far as it criminalises consensual sexual conduct between adults of the same-sex and violates Articles 14, 15 and 21 of the Indian Constitution. But then it always takes time to build a castle similarly the much awaited enforcement of rights of the same-sex people also had to fight a long-running battle as the Supreme Court by allowing an appeal in Suresh Kaushal v. Naz Foundation, reversed the order of the Delhi High Court delivered in Naz Foundation case on several grounds thereby making sodomy law once again a punishable offence.
Moving down the line, the five-judge bench of Supreme Court in the case of Navtej Singh Johar v. Union of India, overruled the Suresh Kaushal case and declared Section 377 unconstitutional by emphasizing on the importance of fundamental rights which cannot be denied even to a very insignificant section of the population. The court reiterated that gender identity is intrinsic to one’s personality, denial of which would be violative of one’s dignity as was held in National Legal Services Authority v. Union of India. The court while declaring the section violative of Article 19(1)(a) held that consensual carnal intercourse “does not in any way harm public decency or morality” when done in private and said that “intimacy between consenting adults of the same sex is beyond the legitimate interests of the state.” The law targets a segment of the society and thereby also violates Articles 14 and 15 of the constitution.
An analysis of all the above-mentioned cases reveals a fact that, though the superior courts have duly abided by their duty to enforce fundamental rights of the LGBT community, still overlooked their right to marry and right to have a family, which are inherent parts of Article 21 available to all persons including same-sex people. Now, it has almost been two years since the Hon’ble Supreme Court passed the landmark judgment in Navtez Singh Johar case, but nothing has changed much, people of the LGBT community still face social stigma including non-acceptance by their own kith and kins.
As of today, a large chunk of elite people stands in favour of this community but people standing in their opposition are still larger in number, thereby influencing the decision making of the judges, who instead of emphasizing on constitutional morality, in some cases, stressed upon social morality.
Status of Live-In Relationship
There have been significant developments in this realm of law and courts through several cases have, now and then created rights in favour of couples staying in live-in relationships. Live-in relationships can be called a pre-marital process of getting to know the other half in an enhanced way, accessing the compatibility, and in the course sorting the impending plans. For instance, to comprehend whether to get married and to have children or not. The partners are given the liberty to get into and get out of the relationship if they feel that it is not going to work out between them.
The live-in relationship for both, heterosexual and homosexual couples is legal in India but when it comes to its social acceptance it seems a far-fetched idea because the society finds sexual intimacy as an unsuitable subject of discussion. Thus, in societies where even heterosexual live-in relationships are problematic and immoral, then the mere idea of asking for acceptance of homosexual relationships becomes intolerable.
Although the Apex court in the case of S.P.S. Balasubramanyam v. Suruttayan held that law will presume a man and a woman as husband and wife if they share the same roof and cohabit for some years and a child is born to them will be legitimate and all other legal rights after marriage will be provided to them. But when we talk about a homosexual couple and their right to marry, which carries along with it the right of maintenance, right to inheritance, right to open joint accounts, right to nominate each other as the nominee in insurance, pensions, gratuity, etc., there is no legislation or precedent guaranteeing such civil liberties available to blood relationships and legally recognised spouses.
Relevant Facts of Madhu Bala v. State of Uttarakhand
In the case of Madhu Bala v. State of Uttarakhand, the petitioner had filed a writ petition under Article 226 seeking issuance of a writ of habeas corpus for her partner. The petitioner stated that detenue who is a major and a qualified lady is enjoying her consensual relationship with the petitioner but she has been wrongfully confined by her mother and brother against her wishes. She made her point by saying that the consensual relationship between same-sex couples, as laid down by several High Courts is not an offence under the law. Therefore, the question before the court was whether two adult persons of the same gender can be permitted to be in a relationship and to live together.
While deciding the matter before it, Uttarakhand High Court relied upon the Apex Court’s decision of Soni Gerry vs. Gerry Douglas wherein the Hon’ble Supreme Court had observed that
“It needs no special emphasis to state that attaining the age of majority in an individual’s life has its own significance. He or she is entitled to make his or her choice. The court can, so long as the choice remains, assume the role of parnis patriae. The daughter is entitled to enjoy her freedom as the law permits and the courts shall not assume the role of a super guardian being moved by any kind of sentiments of the mother or egotism of the father. We say so without any reservations.”
Following the aforesaid dictum of the Supreme Court, the court reiterated that “although the parties in this case, belong to same-gender: they cannot enter into wedlock, but still they have got a right to live together even outside the wedlock.” And also emphasised that now even the legislature recognises the concept of live-in relationship as “domestic relationship” provided under the Domestic Violence Act, 2005. “Section 2(f) of the Act, states that ‘domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”. The court said that these ‘domestic relationship’ also includes a relationship ‘in the nature of marriage.’
Additionally, the court observed that the freedom given and exercise of jurisdiction in a writ court should not transgress into an area of determining the suitability of a partner to marital life. The discretion of choosing a life partner solely rests with the individuals themselves. On this jurisprudential basis, the court held that the consensual cohabitation between two adults of same-sex cannot be held illegal because it is guaranteed under Article 21 which is wide enough to protect an inherent right of self-determination with regard to one’s identity and freedom of choice to the sexual orientation of the partner.
Before this progressive judgment of Uttarakhand HC, the Kerala High Court bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ. in the case of S. Sreeja v. The Commissioner of Police, had relied on Apex Court’s decision in Nand Kumar v. State of Kerala and held that the live-in relationship of same-sex couples is neither a crime nor violates any law. Thus, these judgments have paved the way towards legalising same-sex marriages in India but the journey ahead is still not a walk in the park.
However, for the first time a gay couple by filing a writ petition in the case of Nikesh P.P. v. Union of India, approached the Kerala High Court to legalise their marriage. In the pending petition, the petitioners challenged the provisions of the Special Marriage Act (SMA), 1954 on the ground that they are discriminatory in nature. The petitioners further appealed that the Act operates in favour of marriage of heterosexual couples and there is an implied intention of exclusion of homosexual couples, which amounts to discrimination, therefore, should be held as illegal and unconstitutional to that extent.
The court after hearing the petition sought the views of the central and state governments on the matter. Since the case is pending before the High Court, it can only be hoped that the initiative turns out to be fruitful.
Conclusion and Suggestions
As is said that social change is a constant and natural phenomenon with which the society grows. This change has led the LGBT community to come to the forefront and fight for their rights by exhibiting their sexual orientation. Their journey till date was not a cakewalk and has appreciated its own peaks and valleys on the way, yet the end has not come and the drive apparently is exceptionally drawn-out to accomplish in a fortnight. The court has already taken its step towards changing the society with changing times by striking-down the sodomy law in the Navtej Singh Johar case. However, bringing the change inside the courtroom is not sufficient as after the judgment is delivered the parties go on to face the real world outside and then comes the fear of social impertinence. The ultimate result of this, in some of the cases, is parties withdrawing their statements, like in Madhu Bala case wherein the detenue refused to live with the petitioner in the final hearing before the court. Therefore, a change has to be brought inside as well as outside of a court-room. Thus, for a community that faces discrimination, humiliation, psychological damage, mental torture and prejudice from society, promising some right awareness and sensitivity is the least what society should do.
In order to eliminate homophobia, certain measures should be adopted by the courts as well as the society so that the LGBT community can exercise their right to freedom of expression of love in the form they aspire. In this line of thought, the following recommendations can be made:
- Since any amendment in the personal laws of all religions will be an uphill task, therefore, the most viable option to recognise same-sex marriages is an amendment in the Special Marriage Act (SMA), 1954, because of the two reasons:
- Firstly, the statement of object and reasons of the Act states that marriage can take place between two ‘persons’ who are not within the degrees of prohibited relationships. Therefore, preventing same-sex ‘persons’ to solemnize their marriage under the Act amounts to discrimination.
- Secondly, the text of the Act does not expressly exclude homosexual unions from its ambit yet Section 4 and Schedule No. 2-4 to the Act carry a heterosexual undertone in their language by showing marriage as an affair between a ‘male’ and a ‘female’ or between ‘bride’ and ‘bridegroom’. Therefore, the aforesaid provisions should be amended to read that ‘a party, if male, should have attained the age of twenty-one years and if female, should have attained the age of eighteen years’ and to add a specific provision that same-sex marriages are permitted.
- However, if the aforesaid amendment is not feasible then the Indian legislature should enact a separate law favouring same-sex marriage similar to the Enforcement Act of Judicial Yuan Interpretation No. 748, a special law which legalises same-sex marriage in Taiwan.
- Sometimes, it is argued that recognising civil unions instead of right to marry will suffice the purpose but it is evident from the developments made by countries like Austria, Brazil, Belgium, Sweden, Norway and Denmark, etc., who earlier recognised civil unions and civil partnerships but ultimately ended up in legalising same-sex marriage. Therefore, allowing civil unions with almost all benefits of marriage but not actual marriage itself will only be a temporary solution to the problem. Thus, the demand for a full-fledged right to marriage of same-sex couples should be granted.
- In order to eliminate blind prejudices, lack of understanding of the homosexual community and to promote their social integration, should decide more on constitutional morality, not on social morality.
*This article was part of the Legal Arena Article writing Competition organies by The Law Culture. It came in at the Third Place.
Preferred Citation: Bind, N. K., Sahu, M., “Same-Sex Marriage in India with Special Reference to Madhu Bala v. State of Uttarakhand”, The Law Culture (2020)
 Verma, Ravi Kumara, Collumbien, Martineb Homosexual Activity Among Rural Indian Men: Implications for HIV Interventions, AIDS 18, 13, p1845 (September 3rd, 2004) available at https://journals.lww.com/aidsonline/Fulltext/2004/09030/Homosexual_activity_among_rural_Indian_men__.14.aspx
 Naz Foundation v. Govt. NCT Delhi, 2009 SCC OnLine Del 1762.
 Suresh Kaushal v. Naz Foundation, (2014) 1 SCC 1.
 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
 National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
 Supra 4, at 141.
 Supra 4, at 142.
 S.P.S. Balasubramanyam v. Suruttayan, (1994) 1 SCC 460.
 Madhu Bala v. State of Uttarakhand, Habeas Corpus P. No. 8 of 2020 (Uttara. HC).
 Soni Gerry v. Gerry Douglas, (2018) 2 SCC 197.
 Nand Kumar v. State of Kerala, (2018) 16 SCC 602.
 Indra Sarma v. V.K.V.Sarma, (2013) 15 SCC 755.
 Supra 10.
 S. Sreeja v. The Commissioner of Police, 2018 SCC OnLine Ker 3578.
 Nikesh P.P. v. Union of India, W.P.(C) No. 2186 of 2020 (Ker. HC).