India has one of the most conservative social systems in the world. While it has progressed in giving rights to transgender individuals and those entering  inter-religious marriages, significant roadblocks remain in the form of legal provisions and social sanctions.  

Self-identification of one’s gender is not allowed. Gender identification is the prerogative of the government, assisted by an authorised medical examination.  Likewise, an inter-religious marriage is subject to State approval, which in turn is predicated on social approval. This is written into the legal system and is therefore mandatory.

According to Article 16 of the International Covenant on Civil and Political Rights (ICCPR) each person’s “self-defined sexual orientation and gender identity” is integral to his or her personality and is one of the most basic aspects of “self-determination” dignity, and freedom.

No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity.

In 2019, the Indian Supreme Court accepted that “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth.” The Court declared that the international convention is “not inconsistent with the fundamental rights in Part III of the Indian Constitution, and it can be adopted.”

The National Legal Services Authority (NALSA), which is in the Indian Supreme Court, directed the Indian and provincial governments to grant legal recognition of transgender persons’ “self-identified gender” as male, female, or third gender without requiring surgery or medical certification. 

It also directed that transgender persons be treated as a socially and educationally backward class entitled to reservations in educational institutions and public employment. 

The right to self-perceived gender identity was subsequently enshrined in section 4(2) of the Transgender Persons (Protection of Rights) Act, 2019.

But in practice, the court ruling was  observed in the breach. ureaucratic adjudication and imposition of gender identities continue. 

New Amendment Bill Passed

Complicating the matter, an Amendment Bill was passed on March 25, that doubles down on the restrictions. The bill conflates two categorically distinct concepts: sexual orientation, which concerns whom a person is attracted to; and gender identity, which concerns who a person is. 

The new law’s  characterisation of “sexual identities” as a proxy for “gender identities” is a major flaw with substantive consequences. 

Clause 3 of the law deletes section 4(2), which had expressly recognised the right to self-perceived gender identity, and replaces it with a framework in which identity is determined through a District Magistrate acting on the recommendation of a medical board. 

As per the amended section 6(1), the Magistrate has discretion over whether to consult the medical board or not. The presence of a medical board as the standard reference point for identity determination is the kind of clinical gatekeeping that Principle 3 and NALSA directed against. 

Section 6(4), in the law,  grants certificate-holders the right to change their first name in official documents. The Bill omits section 7(3) and substitutes a qualified version, available only to those “declared as a transgender person within the definition under this Act,” thereby narrowing a right.

The 2026 Amendment law reorients the 2019 Act away from the constitutional framework of self-determination that the Supreme Court had accepted in order to accord with international norms. 

Hurdles for Same-sex marriage

Consensual homosexual relations between adults were decriminalised in 2018. And it was not a criminal offence to be gay or lesbian. But the age of consent law continued to apply. LGBTQ+ individuals could live openly without fear of arrest.

But marriage was not allowed and nor could the couple claim family rights. 

In 2023, there were a number of petitions seeking legal recognition of same-sex marriage, equal rights under marriage laws, the right adopt together and have normal inheritance and succession rights.

The Indian constitution’s provisions for Right to Life and Liberty (Article 21) includes the right to marry a partner of choice. But same sex marriage is thought to go against traditions and religions. Marriage is a social institution which is for the family and society to govern and not the court. Society fears that same sex marriage will cause a societal collapse. 

In 2023, a five-member Supreme Court bench gave a split verdict. The majority said that same-sex marriage could not be recognised by the court, but added that it was for the parliament to decide. The judges, however said that discrimination against LGBTQ+ must end. The two dissenting Judges said that same-sex marriage should be legally recognised. Couples could not wait till parliament to decides. 

A gain from the judgment was that it recognized queer couples’ right to cohabit. It also asked the government to ensure that queer couples are not discriminated against and recommended the setting  up of a committee to examine their “rights without marriage.”

The court decided not to grant adoption rights to the same sex couple. A partner cannot also be deemed a legal heir with automatic inheritance. A partner cannot be given a spousal visa by the immigration authorities.  

But couples can enter into a cohabitation agreement or a legal contract between partners.  As a single person, adoption is possible, not as a couple. 

Countries with legal same-sex marriage number more than 30. These include the US, Canada, UK, most of Europe, Australia, New Zealand, Taiwan, and Thailand. Nepal has not yet implemented, though the court had shown the greenlight. Same-sex marriage in India remains a work in progress.

India offers several legal avenues for solemnising interfaith marriages, ensuring that individuals can marry across religious lines while retaining their personal freedoms. The primary legal provisions include the Special Marriage Act, 1954, and the personal laws that govern different religious communities.

The Special Marriage Act (SMA) is a secular law enabling individuals of different religions or nationalities to marry without needing to convert to each other’s faith. The SMA provides a comprehensive legal framework for the registration and solemnization of marriages, ensuring such unions receive legal recognition and protection.

Key Provisions of the Special Marriage Act:

Couples planning to marry under the SMA must give a 30-day notice to the Marriage Registrar in the district where at least one partner has resided. The notice is publicly displayed at the Marriage Registrar’s office, inviting objections. Any objections must be resolved within 30 days. Valid objections typically relate to the age of the parties, existing marital status, prohibited degrees of relationship, or mental incapacity.

If no objections are upheld, the marriage can be solemnised in the presence of three witnesses and the Marriage Registrar. Following the ceremony, the marriage is registered, providing legal recognition and documentation.

The Hindu Marriage Act of 1955 is applicable to Hindus, Buddhists, Jains, and Sikhs. This act does not explicitly cover interfaith marriages, but if one party converts, the marriage can be solemnized. 

Interfaith couples in India face numerous challenges stemming from legal, social, and familial opposition. These challenges can impact their decision to marry, their marital life, and their interactions with society. 

Procedures under the SMA are lengthy. The 30-day notice period under the SMA can expose couples to societal scrutiny and harassment, often discouraging them from pursuing the legal route. The public display of marriage notices invites objections, sometimes leading to unwarranted interference by community members or authorities or extortionists.

Local authorities or police may be unsupportive, reflecting societal biases against interfaith marriages. Bribes are demanded by local officials and cops. 

Interfaith marriages in India face significant social and familial hurdles that can profoundly affect couples.  Families often oppose these marriages, fearing they may undermine cultural or religious traditions. Opposition can range from vocal disapproval to active attempts to obstruct or disrupt the union. Interfaith couples may also encounter social ostracism, and occasionally threats to life, particularly in conservative or tightly-knit rural settings where traditional norms hold sway. Murder of an interfaith couple is not uncommon.   

There is often pressure on one or both partners to convert to their spouse’s religion to gain acceptance, adding strain as individuals navigate between familial expectations and personal beliefs. Disputes over inheritance rights frequently arise.

Addressing these complexities requires legal frameworks and societal attitudes that uphold individual rights and accommodate the diverse cultural and religious landscape of modern India.

The divide between urban and rural areas in India significantly shapes the acceptance and challenges of interfaith marriages. In metropolitan cities, such marriages tend to be more accepted due to a liberal and progressive mindset fostered by higher levels of education, economic independence, and exposure to diverse cultures. Conversely, rural settings maintain strong adherence to traditional values and close-knit community structures.

The urban-rural dichotomy underscores the complexity of navigating cultural diversity and societal expectations regarding marriage across different regions of India.

© Eurasia Review