The Supreme Court in its SUO MOTU WRIT PETITION (CRIMINAL) NO. 24 OF 2014, stated that Article 21, deals with the right to life and personal liberty which is an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.

In the case of Shakti Vahini v. Union of India , the Court stated that

“It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected…..”


The Supreme Court in its landmark judgement in the case of Navjet Singh Johar and others v. Union of India , declared that insofar as Section 377 criminalises 51 consensual sexual acts of adults (i.e., persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution.

In National Legal Services Authority v. Union of India and others Justice Radhakrishnan, J. stated that Gender identity refers to each person‘s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms.

The discrimination on the ground of sex under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression ―sex used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male nor female.

The most recent update being the case of Abhijit Iyer Mitra & Ors vs Union of India , petition to recognise same-sex marriages under the Hindu Marriage Act, Special Marriage Act and Foreign Marriage Act. Replying to the same, Solicitor General Tushar Mehta told the Delhi High Court that, “Our legal system and values do not recognise marriage, which is sacramental, between same-sex couples.”

Therefore, the law in India does not recognise marriages between homosexuals.


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