This article first appeared on the website of LGBTQI+ Law Committee of the Section on Public and Professional Interest of the International Bar Association, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.
The movement towards securing rights for the lesbian, gay, bisexual, transgender, queer or questioning community (LGBTQI+) in India has been a subject of both progress and challenges. For years, the LGBTQI+ community in India has strived to attain recognition, equality and nondiscrimination. In recent years, there has been tremendous progress in recognising rights of LGBTQI+ people in India, and a growing awareness of the importance of inclusivity and diversity
Marriage equality necessitates legal recognition and equal treatment of all individuals, regardless of their sexual orientation or gender identity, and allowing the right to marry. In April 2023, the Indian Supreme Court commenced hearing the case concerning the recognition of marriage equality and marriage rights of the LGBTQI+ community in India. In India, marriage is primarily governed by the personal laws of the respective couples and civil unions for couples who cannot marry under the personal laws are governed by the Special Marriage Act 1954 (SMA). The petitioners in this case have challenged the SMA as being applicable only to a spousal relationship of a heterosexual couple. Such a definition was contended as being violative of Articles 14, 15, 19 and 21 of the Indian Constitution. The petitioners have petitioned primarily for declaration that the SMA applies to ‘a marriage between any two persons’. A five-judge constitution bench of the Indian Supreme Court reserved the case for judgement on 11 May 2023. Previously, the Indian Supreme Court has observed that ‘familial relationships may take the form of domestic, unmarried partnerships or queer relationships’ and that such ‘atypical forms’ of relationships also deserve legal recognition.Download PDF to read more
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