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  • Writer's pictureLAWGIC STRATUM

Marital Rights of Same-Sex Couple

Author: Kanishk Sawhney

Marriage is the oldest and most common institution in the world. According to Meriam Webster’s Dictionary, the marriage ceremonies are described as the marital rite in specific engagement and ceremonial formalities.[1] Marriage basically defines the rights and obligations of the partners. In today’s era marriage is not only related to man-women relationships. Law has played a major role in social change.

In India, the revolution of a positive approach towards homosexuals came up with the case of National Legal Service v. Union of India[2]. In this case, the Court held that the right to self-identify one’s gender which includes third genders is an important part of the constitutional right to live with dignity.

Also, in the case of Naz Foundation v. Government of NCT of Delhi & Ors[3], the Delhi High Court struck down Section 377 of the Indian Penal Code as it was unconstitutional.

But this decision of Delhi High Court was reversed by the Supreme Court in Suresh Kumar Koushal & Ors v. Naz Foundation[4], the court held that the Parliament only has the authority to change the law and not the courts. This decision was taken into reconsideration in Navtej Singh Johar v. Union of India[5]. In this case, the Supreme Court decriminalized Section 377 of the Indian Penal Code and finally, the doors were opened to welcome the liberal perspective of Homosexuality.

The United States Supreme Court in the case of Obergefell v. Hodges (576 U.S. 2015)[6] has promulgated definite Legal Rights to same-sex married couples. These Rights are as follows-

(1) Property Rights:

The Court has given the Property Rights to the same-sex married couple. These property rights include protection of spouses in cases of divorce petitions, legal separation, or death of any of the spouses. Also, the same-sex married couple can hold property together and can also enjoy the marital estate.

(2) Employee Benefits:

If one of the spouses gets insurance coverage under its job benefit the partner of such spouse can also be included in the medical plans. Same-sex couples can also attain the benefits of retirement saving plans.

(3) Tax Benefits:

Same-sex couples can now take the benefit of both state and federal tax rules that apply to the couples during the marriage. Now, they can file their income tax return jointly instead of separately.

(4) Family Leave, Medical Leave, and Hospital Visits:

Employment leave for taking care of a spouse now also apply to same sex married couple. Maternity and Paternity leave provisions also apply to same sex married couple.

(5) Divorce:

Now, Divorce Laws apply equally to the same-sex married couples.

There are many countries in the world that have accepted legitimate same-sex marriage based on Human Rights which says that all individuals must be handled equally. Netherland was the first country to accept same-sex marriage. Countries like Spain, Canada, Belgium, Norway, Portugal, South Africa, etc. have permitted the right to marry the same-sex.[7]

Till the decision of the Supreme Court in Navtej Singh Johar v. Union of India, India was a country in which Sodomy was punishable with life imprisonment. But now same-sex marriage is completely legal in India.


It is clear that denying the right to marry same-sex couple is discrimination hence to obtain social acknowledgment is a necessary step. Although the Judiciary has struck down and decriminalized Section 377 of the Indian Penal Code amendments are required in the personal laws. The most important thing that is required now is the Uniform Civil Code so that the rights of same-sex couples can be preserved.

Also, there is no particular procedure prescribed for adoption to same-sex couples. Only one alternative i.e., Surrogacy is left with them but the Surrogacy Bill of 2019 has not prescribed the surrogacy rule to same-sex couples. There is an urgent need for such alternative reproduction for same-sex couples and India is really very far from these measures.

Now there is a major necessity to develop the approach of Sexuality Jurisprudence in India. The change in law after the decision of the Supreme Court has somehow changed the attitude of the society towards same-sex couples, but it has not fully accepted by the people. Further to make this happen, the law needs to be that efficient to Adoption, Alternative Reproduction Resources, Property Rights, Divorce, Custody of Child to give real justice to the Judgment of Section 377 of Indian Penal Code which was struck down by the Supreme Court.


[1]Marriage | the relationship that exists between a husband and a wife, Available at [2] (AIR 2014 SC 1863) [3]160 Delhi Law Times 277 [4](Civil Appeal No. 10972 of 2013) [5](AIR 2018 SC 4321) [6]See [7]Indrajeet Santoshi, Homosexuality in India: A Controversial Issue, Vol 1 Issue 4, International Journal of Academic Research and Development,63,64 (2016)

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