India does not recognize same-sex marriage or civil unions, though same-sex couples can attain the rights and benefits as a live-in couple (analogous to cohabitation) as per Supreme Court of India landmark decision Deepika Singh v. Central Administrative Tribunal in August 2022 which offers unregistered cohabitation for same-sex couples on par with heterosexual couples.
Lesbian, gay, bisexual and transgender (LGBT) rights in India have been evolving rapidly in recent years. However, Indian LGBT citizens face social and legal difficulties not experienced by non-LGBT persons. In this blog, we will discuss what is legal and what is not legal for same-sex couples in India.
Legal:
- Same-sex relationships: Same-sex relationships are legal in India. The Delhi High Court in 2009 decriminalized homosexuality by striking down Section 377 of the Indian Penal Code.
- Right to privacy: In 2017, the Supreme Court of India recognized the right to privacy as a fundamental right under the Indian Constitution. This decision has been instrumental in protecting the rights of the LGBTQ+ community.
- Right to adoption: In 2020, the Delhi High Court ruled that same-sex couples have the right to adopt a child in India. The court held that the sexual orientation of the prospective parents should not be a determining factor in adoption.
- Right to inheritance: Same-sex partners have the right to inherit property from each other under the Hindu Succession Act. This was established by a 2016 judgment of the Delhi High Court.
Not Legal:
- Marriage: Same-sex marriage is not legal in India. The Indian Constitution defines marriage as a union between a man and a woman.
- Surrogacy: The Surrogacy (Regulation) Bill, 2019, which has been passed by the Indian parliament, restricts surrogacy to married heterosexual couples. Same-sex couples and single persons are not allowed to use surrogacy services.
- IVF: Same-sex couples are not allowed to undergo IVF (in-vitro fertilization) treatment in India. The government has banned surrogacy and IVF treatments for same-sex couples.
- Discrimination: Although discrimination against the LGBTQ+ community is illegal in India, it is still prevalent in many parts of the country. Same-sex couples may face discrimination and prejudice when it comes to housing, employment, and healthcare.
Conclusion:
While same-sex relationships are legal in India, same-sex couples still face significant legal challenges in terms of their rights and protections. Same-sex marriage is not yet recognized by law, and surrogacy, IVF treatments are not available to same-sex couples. Discrimination against the LGBTQ+ community is also still prevalent in many parts of the country. However, recent legal developments have provided hope for the future, and it is hoped that India will continue to progress towards greater recognition and protection of the rights of same-sex couples.
