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l  Same-sex marriage under Hindu law

According to Section 5 of the Hindu Marriage Act, a marriage may be solemnized between "any two Hindus" provided that certain conditions are met. The conditions outlined in the act use gender-neutral terms such as "party" and "parties," with the exception of Sub-section (iii), which requires that the bridegroom be at least 21 years old and the bride be at least 18 years old at the time of marriage. The statute further employs the terms "bride and bridegroom" or "husband and wife" to describe the parties involved in a marriage. This suggests that the Hindu Marriage Act did not initially contemplate marriages between individuals of the same sex.

Moreover, the definition of "degrees of prohibited relationship" as specified in Section 5(iv) in conjunction with Section 3(g)(iv) appears to exclude same-sex couples, as it includes relationships such as brother-sister, uncle-niece, and aunt-nephew but not those between individuals of the same sex. However, this prohibition is likely intended to prevent inbreeding and is therefore not relevant to same-sex couples.

The solemnization of a Hindu marriage requires the performance of traditional rites or ceremonies, such as the saptapadi and datta homa. However, not all Hindu communities observe these customs. The feasibility of performing these ceremonies for same-sex marriages is a topic of debate, with some Hindu priests performing them in the belief that a Hindu marriage is between two souls, regardless of gender. The law does not explicitly prohibit such practices.

l  Same sex marriage under Special Marriage Act

Like the Hindu Marriage Act, the Special Marriage Act uses the broad language of "any two persons" in describing the parties eligible for marriage. Despite this language, the Act probably did not originally contemplate or intend to allow for same-sex marriages, as evidenced by references to "the male" and "the female" and "living together as husband and wife." However, these terms can be interpreted as "a male" or "a female," and "living together as husband and wife" can be understood as living in the manner of a married couple, with associated social and legal responsibilities such as cohabitation and mutual support.

l  Same-sex marriage under Muslim and Christian law:

Marriage equality is not traditionally recognized in Islamic law and is considered a transgression according to the Quran. Similarly, homosexuality is considered a sin in the Bible, but the law governing Christians, as with Hindus, is largely governed by statute, such as the Indian Christian Marriage Act, 1872. The Act provides for marriage to be solemnized between two Christians or one Christian and one non-Christian. However, the language used in the Act, such as "the man and the woman" or "husband and wife," does not contemplate same-sex marriages. 

Judicial Views:

In India, same-sex marriage and civil unions are not recognized, but same-sex couples have limited rights as live-in partners. In Arun Kumar v Inspector General of Registration (2019), the Madras High Court considered the legality of a cis-trans marriage in relation to the Hindu Marriage Act 1955 and held that it was acceptable. The Madurai bench of the Madras High Court held that the word "bride" in section 5 of the Hindu Marriage Act 1955 includes transgender people who identify as women, and refusal to register such a marriage would violate fundamental rights guaranteed in Articles 14, 19(1)(a), 21, and 25 of the Constitution. This judgment may provide insight into the legality of same-sex marriage in India.

The legality of homosexual marriages in India can be evaluated based on four articles of the Indian Constitution: Article 14, 15, 19, and 21. According to Article 14, the state cannot deny any person equal protection under the law, which includes equal treatment of individuals regardless of sexual orientation. The Supreme Court upheld this principle in the Navtej Johar judgment, which decriminalized homosexuality and recognized it as a normal aspect of human sexuality. Therefore, the government cannot discriminate against homosexual marriages and render them illegal under the guise of unequal treatment. The differentiation must have an intelligible differentia and must be in line with the goal sought to be achieved. However, in the case of homosexual marriages, there is no intelligible differentia to justify their outlawing.

Article 15 of the Indian Constitution prohibits discrimination against citizens based on religion, race, caste, sex, or place of birth. It's worth noting that the word "gender" is not mentioned, but the Supreme Court clarified in the landmark NALSA v. Union of India decision in 2015 that "gender" is included in the term "sex." This means that current laws banning same-sex marriage are in violation of Article 15 as they discriminate based on gender identity. Article 19(1)(a) of the Indian Constitution guarantees the freedom of expression, including the expression of gender identity. This was upheld by the Supreme Court in the NALSA ruling, which stated that the rights to privacy, self-identity, autonomy, and personal integrity for transgender individuals are protected under Article 19(1)(a) of the Constitution. The limitations to these fundamental rights outlined in Article 19(2) do not restrict the expression of one's gender identity.

Article 21 of the Indian Constitution guarantees the right to life and liberty, which can be applied to the legality of same-sex marriage. The Supreme Court has recognized the Right to Dignity as an essential aspect of our constitutional culture, which includes the freedom to express oneself and mix with others. This means that denying same-sex couples the right to marry would be a violation of the Right to Dignity, as recognition of one's gender identity is central to this right and marriage as an institution is necessary for an individual to become a full social being.

Furthermore, Article 21 also protects the Right to Personal Autonomy, as established in the Anuj Garg v. Hotel Association of India case. Marriages fall under the positive rights of individuals to make their own life decisions, and same-sex marriages are no exception. The Supreme Court has also ruled that the Right to Privacy, including the right to choose one's marital partner, is protected under Article 21 in the Justice K.S. Puttaswamy and Anr. vs. Union of India (UOI) case and the Shafin Jahan vs. Asokan K.M. case.

Conclusion:

The fundamental rights test supports the legality of same-sex marriage in India. Additionally, Article 16 of the Universal Declaration of Human Rights, to which India is a signatory, states that all individuals of full age, regardless of race, nationality, or religion, have the right to marry and start a family. This means that in order to align with the UDHR, the Indian government should allow same-sex marriages.

Recently on November 14th, 2022, two gay couples filed writ petitions in the Indian Supreme Court for legal recognition of same-sex marriages. The petitions challenged the constitutionality of the Special Marriage Act, 1954. The Supreme Court combined all similar cases from various high courts and has asked the government to respond by February 15, 2023 and listed the matter on March 13. The upcoming ruling of this case will have a significant impact on the recognition of same-sex marriages in India.

References:

www.livelaw.in/amp/columns/same-sex-marriage-supreme-court-lgbtqiacommunity-fundamental-rights-article-14-217731

www.outlookindia.com/national/it-s-time-we-consider-the-marital-status-of-same-sex-marriage-for-good-news-253282/

http://nujslawreview.org/wp-content/uploads/2020/02/12-3-4-Satchit-Bhogle.pdf