Is Same-Sex Marriage Really Legal in India?

There are many headlines trending on social media celebrating the legalization of same-sex marriage in India, but, turns out, this is not exactly the case.

What actually occurred was the overturning of Section 377 in India’s Penal Code, which covers all aspects of criminal acts and laws. The section states that sexual intercourse “against the order of nature with any man, women, or animal” was a punishable offense and would lead to 10 years in prison. The section doesn’t include anything criminalizing gay marriage, so to say that it was just legalized with the overturning of this section is not correct.

This ruling is still a big step towards marriage equality, though. “The Better India” explained that even though gay marriage was not technically illegal, the Indian government was likely to not allow any same-sex couples to even begin the marriage process because it was assumed that they were eventually going to violate the section and commit a criminal offense once they were actually married. It was also mentioned that same-sex marriage is not legally recognized in the same way as “traditional” marriage is. Though it would not be a punishable offense, you would not be given the same custody and property rights either. So, same-sex marriage is not completely legal or illegal at this point.

This section was also used as a basis for people to consider members of the LGBTQ+ community criminals, which led to ridicule and harm for many of these people. The overturn of this section might lead to a similar effect on the mentality of those opposed in India, and also the world. “One day there won’t be any labels and we will all live in Utopia” tweeted Sonam Ahuja, an Indian Celebrity.

Courtesy of Her.ie

This section was originally intended to keep citizens from “unnatural” relations with minors and animals but was interpreted to also include homosexual relations as well. Justice Indu Malhotra, the only female supreme court judge involved with the decision, says “History owes an apology to members of the community for the delay in ensuring their rights,” but confirmed that all of the other components of this section will continue to be upheld. (Via “The Indian Express live updates)

This section, as well as the entirety of India’s Penal Code, was written over a century ago by the British colony who once had control over India, and still exists in multiple other territories they previously owned. Activists are hopeful that the overturn of the section in India could lead to similar changes in other countries.

“I think it’s a step for global equality. When one country acquires this kind of landmark ruling we all win,” says Luann Seng, who is a senior at FSU and also a member of the LGBTQ+ community. “We are all humans and we all deserve happiness.”

Despite this big step towards equality, the fight is not over. This groundbreaking decision will likely spark future debates in various places, including on our own campus, over topics like same-sex adoption, and property rights.