Abstract
Same-sex marriages are one of the least talked about but controversial topics in India. Various philosophers have defined marriage in a very specific manner, where both the parties must be a man and a woman. But laws in India can be interpreted in different manners, but are not used in an intricate manner, which is detrimental to the people belonging to the homosexual community. A legal code can be decoded by the judiciary, but their reach to liberalism is yet to reach and is indeed a utopian concept. This paper in taking you through the laws and certain philosophical theories which can be referd to while scrutinizing the concept of “Same-Sex Marriage”.
Introduction
Marriage is a merger of two people into one entity through means of acceptance and love. But various scholars and philosophers describe marriage in different ways. How do you decide which one is the correct one, the bit of opinionated one or the one that decodes law?
The word “marriage” originates from the [1]Latin term maritātus, which refers to the state of being married. It evolved into the Old French word mariage, and later into Middle English as marriage. [2]2350 BC dates the earliest evidence of marriage records in Mesopotamia. Later on it had evolved through various civilizations such as Egypt, Greece, Rome, and China.
Marriage in India
Marriages in India are governed by the personal laws, so there are different laws for marriages in different religions. The only secular law in relation to marriage is the Special Marriages Act, 1954. I will deal with the personal laws of a few major religions in India before dealing with the position under the Special Marriages Act-
[3]For Christians- The applicable Act is the Indian Christian Marriage Act, 1872. Throughout the Act, it is stated that a marriage may be solemnized between “any 2 Christians”, Section 60 of the Act deals with conditions for marriage amongst Indian Christians to be certified. While there is no explicit condition that one of the parties must be male and the other female, Section 60(1) states that the “age of the male intending to be married must not be under 21 years and the age of the female intending to be married shall not be under 18 years”.
Many argue that this means that there is an implied condition that one of the parties must be male and the other female. I would argue that this Section is only to impose a restriction on age and the Section would not become redundant if homosexual marriages are allowed. This Section could then be interpreted to state that if 2 men marry, then both of them must be 21 or above, and if 2 women marry, both of them must be 18 or above. However, it is unlikely that the Court accepts this interpretation. It might have been easier to convince the Courts if the Section said “a male intending to be married” and “a female intending to be married” instead of “the male” and “the female”.
[4]For Muslims- It is the Shariat Law that governs marriages by virtue of Section 2 of The Muslim Personal Law (Shariat) Application Act, 1937. Marriage is referred to as “Nikah”. Muhammad Abu Zahra defined Nikah as “a contract that results in the man and woman living with each other…”. Ibn Uthaimeen had defined marriage as a “mutual contract between a man and a woman…” Further, it is stated that one of the main objectives of Nikah under Muslim Personal Law is procreation and therefore, it is reasonable to assume that homosexual marriages are not recognized under Muslim Personal Law.
[5]For Hindus, Jains, Buddhists and Sikhs- The applicable law is [6]The Hindu Marriage Act, 1955. Section 3 deals with conditions for a Hindu Marriage and states that a marriage may be solemnized between “any 2 Hindus” provided that the conditions are fulfilled. There is no direct requirement that the parties to the marriage must be one male and one female. Unlike The Christian Act, this act uses the words “bride” and “bridegroom” when setting the minimum age of marriage. However, the parties to the marriage are called “husband” and “wife” in multiple Sections. Therefore, whether homosexual marriages are legal under The Hindu Marriage Act is a question of interpretation.
Legal Interpretation
Section 377 under IPC is an extremely rigid law and no judge would interpret it liberally. Interpreting these legal provisions is hard and tedious, and it involves a lot of bending of the meaning of marriage. A judge in India must go against all odds that are constrained in the society to be able to give homosexuals these rights. One extremely important point that should be implemented is representation. Right to a life that an individual wants to live in any way they want is fundamental. Giving representation would indeed qualify them to interpret these laws in a manner that gives them their fundamental rights.
Right to marry comes with various other benefits like adoption, surrogacy, employment, and retirement benefits. When someone is denied their right to marriage, they are also being deprived of their certain other rights.
Philosophical Comparison
Otherization
Others according to [7]Simmel “is the stranger who is beyond being far and near. The stranger is an element of the group itself, not unlike the poor and sundry ‘inner enemy’- an element whose membership within the group involves both being outside it and confronting it”.
The concept is to keep our children away from them so that the element they have does not spread across treating it as a contagious disease. The term denotes when someone’s objective views make that person an alien in the society because society depends completely on its personal belief. [8]“Otherize” was coined in 2016 so it is not a very historic concept and has much less inflammatory roots. This concept can be used to study the condition that LGBTQ+ people have to face in a day-to-day life or when their opinions are being taken out from consideration.
The concept of “otherization” can be connected to the discussions surrounding LGBTQ marriage equality by examining how societal norms and legal frameworks have historically marginalized and discriminated against LGBTQ individuals within the institution of marriage. The search results highlight how the process of “otherization” has led to the exclusion of same-sex couples from legal recognition and societal acceptance of their relationships. This marginalization perpetuates inequalities and denies LGBTQ individuals the same rights and benefits associated with marriage.In the context of LGBTQ marriage equality, the theory of “otherization” underscores the importance of recognizing and addressing the effects of this marginalization to work towards achieving equality and inclusivity for LGBTQ individuals. By understanding how societal norms and power structures have contributed to the “otherization” of LGBTQ individuals, efforts can be made to challenge discriminatory practices and promote a more equitable and accepting environment for all individuals, regardless of sexual orientation.
[9]Frantz Fanon’s theory of otherization, as seen through the lens of colonialism and racism, offers insights into understanding the marginalization and discrimination faced by LGBTQ individuals and their struggle for marriage equality. Fanon discusses how dominant groups in colonial contexts dehumanize and “otherize” marginalized groups to justify their exploitation and oppression. Similarly, LGBTQ individuals have historically been dehumanized through stereotypes, prejudices, and discriminatory practices that portray them as abnormal, immoral, or inferior to heterosexual individuals.
Expressivism Theory
[10]The view of this theory says that when a person is expressing their mind it is not a declarative or fact-stating sentence but an expression of the speaker’s psychological state. The theory is not very cognitive and some might argue that such theories are nothing in a rigid law-making country. These mostly deal with moral opinions rather than ethical ones, which can be directly applied in day-to-day life. This means that moral statements do not have truth conditions in the same way descriptive statements do.
According to expressivism, moral language serves as a vehicle for expressing attitudes of want. The strong link between moral opinion and behavior—that is, the idea that people’s acts give strong evidence of the morality they accept—is thought to be explained by the fact that moral language achieves this. Additionally, as G.E. Moore said in his seminal work Principia Ethica, it is meant to explain why moral terms cannot be converted into nonmoral language. The general expressivist approach links moral sentences to the attitudes they are likely to convey to explain these and other aspects of moral language. The idea is that we can explain the meaning of these phrases by using these mental processes.
This idea contends that moral disapproval or stigmatization of groups can be expressed through laws and regulations. Applying expressivism theory to LGBTQ marriages, one may contend that denying marriage rights is a way to show disapproval of LGBTQ partnerships. The significance of moral theories in legal discussions is demonstrated by the fact that courts have examined but frequently rejected expressivist arguments in support of same-sex marriage.
Conclusion
Same- sex marriages are a big taboo in society, and it affects immensely when it comes to legal provisions. It is a very westernized concept according to a lot of people. But globalization and liberalization where the only way India gained its position as a country in the world politics. It was important for India to open to the world to be able to make its position when it came to a developing country. Similarly, same sex marriages are a concept that mostly developed or developing countries allow.
Developed countries like the Netherlands, Canada, Belgium, Spain, Norway, Ireland, and many other countries have allowed this provision. This not only gives them their rights as a citizen but also other benefits that come with it. Everyone deserves their civil rights to be seen. It is high time that judges in India see this issue and interpret laws accordingly. Judiciary is the most powerful instrument a government can have. The way the judiciary can intricately change a law is beyond people’s expectations, and precedents are nothing but referred to anytime there is a dispute in law.
[1] https://www.etymonline.com/word/marriage
[2] Jenn Sinrich, The Origin and History of Weddings and Marriages, The Knot (last updated Jan. 29, 2025).
[3] Indian Christian Marriage Act,1872
[4] The Muslim Personal Law (Shariat) Application Act, 1937
[5] Special Marriage Act, 1954
[6] Hindu Marriage Act, 1955
[7] Laura M. Goodall, The “Otherized” Latino: Edward Said’s Orientalism Theory and Reforming Suspect Class Analysis, 16 U. PA. J. CONST. L. 835 (February 2014). Copied!
[8] Cara Cunningham Warren, Outing Otherization: A Means to Enable Cooperation in a Post-Truth Era, 58 WASHBURN L.J. 609 (Summer 2019).
[9] Jeremiah Chin, Red Law, White Supremacy: Cherokee Freedmen, Tribal Sovereignty, and the Colonial Feedback Loop, 47 J. MARSHALL L. REV. 1227 (Summer 2014).
[10] Aikin, Scott, and Michael Hodges. “Expressivism, Moral Judgment, and Disagreement: A Jamesian Program.” The Journal of Speculative Philosophy, vol. 32, no. 4, 2018, pp. 628–56. JSTOR, https://doi.org/10.5325/jspecphil.32.4.0628. Accessed 15 Mar. 2025.
Author: Sukriti Sardar is a 3rd Year B.A.LLB student at Symbiosis Law School Pune
