Recently writ petition has been filed in Vaibhav Jain vs. U.O.I[1] to allow registration of same-sex marriage happened abroad under such jurisdiction which permits it. Foreign Marriage Act, 1969, and Special Marriage Act, 1954, has been quoted as saying that since former legislation allows registration of marriage which has happened on foreign soil between either/both the parties who are Indian citizen and later talks about special kind of marriage, but the court ruled out the possibility of including same-sex marriage under this legislation because even though it did not define marriage but it did prescribes minimum age of consent for bride and bridegroom which court interpreted as man and woman keeping in mind the societal structure and nature of laws when it comes to recognition of homosexual marriages in India.


Since personal laws prohibit same-sex marriage, then even if an Indian citizen acquires foreign citizenship and enters into homosexual marriage in that country, it does not mean that the personal law of that person of Indian origin gets changed and thus, India can refuse to recognise such marriage. And since authorities under pursuance of FMA refuse to even entertain the application, and petitioner has no right to file an appeal in an appropriate forum except exercising writ remedies.

The affidavit filed by the Union government says that such recognition will create havoc and might lead disturb the societal balance which is based on personal laws.[2] And since India decriminalized homosexual relationships under section-377 of the Indian Penal Code, 1861, in the case of Navtej Singh Johar vs. U.O.I,[3] the central government in Vaibhav Jain case, stated that the impugned judgement has a limited scope which is restricted to the decriminalization of s.377 and it did not legitimize or recognises same-sex marriage. Thus, it cannot be applied to specific human conduct dealing with public rights.

Moreover, the government said that current personal and codified laws clearly prohibit such kind of marriage, and any recognition should come through the legislative process, not by judicial adjudication. Furthermore, non-recognition of same-sex marriage will not violate the constitutional mandate as per Art.21[4] because it is subject to procedures established by law, and the fact that domestic laws of the country establish clear ground that such marriage cannot be recognised in any of the personal/codified law.[5] Thus, the state is not obligated under domestic laws till now to recognise it.


Regarding India’s international obligation, no International convention directly addresses the issues of homosexual couples. Thus, by applying the analogy of Art.10 Hague Convention, 1970,[6] which provides the right to states to refuse recognition of divorce/legal separation decree given under foreign laws in case it is manifestly arbitrary or stands in contradiction with the state’s own public policy. This shows that states are permitted by application of their public policy to derecognize decrees passed by a foreign jurisdiction. Even though Art.10 deals with specific matters related to divorce/legal separation, but it hints towards the fact that the international community provides superseding effect to state’s sovereign rights, especially in matters related to marriage which is of civil nature.

Furthermore, Article-23(2) of the International Covenant on Civil and Political Rights,[7] gives the right to men and women who are of marriageable age to marry and form a family, but, even ICCPR in pursuance of Art.23 did not give the right to a same-sex couple. In Ms. Juliet Joslin et al. vs. New Zealand,[8] UNHRC held that the state parties under ICCPR are not obligated to provide the right to marry as per Art.23(2) to homosexual couples. However, several countries recognise same-sex marriage with varying degree of rights bestowed upon them, but such recognition comes from the change in progressive laws which is based on the societal perspective. Thus, India is not duty bound under domestic laws or under its international commitments to recognise same-sex marriage. Because of this, such homosexual couples remain devoid of several benefits which are provided to couples like spousal/dependent visas given to foreign couples, or of Employee provident fund and Workmen Compensation Act, 1923,[9] which provides benefits only to those who are related by blood or through marriage.[10]


Same-sex marriage in India still needs explicit legislation and judgments like Navtej Singh Johar’s case provide hope for a future in which homosexual couples have similar rights as their heterosexual counterparts. Preserving the marriage is the norm and declaration of its invalidity is an exception, this can be seen through provisions like ‘restitution of conjugal rights under Hindu Marriage Act.[11] The whole opposition against homosexual couples revolves around the morality aspect of the society which also gets its stand on the legal framework in India; however, the scenario is changing because several countries recognize such marriage which sprung the debate in India as well. As there are overt lacunae in the cases which deal with dual-domicile and lex loa principle that recognizes the validity of marriage which is legitimate in the state where such marriage has been performed, we find that the overarching principle of public policy finds its way in by the help of which such marriages did not get recognized in the states whose domestic laws stand in its contradiction.

Thus, it is high time to limit the applicability of the “public policy” principle to recognize the legitimacy of sovereign jurisdiction of other states too. And this requires legislative intervention because only then a conflict of laws can be addressed properly.

Author’s Name: Kumar Aditya (Bennett University, Greater Noida)

[1] W.P. (C) 7657/2020.

[2] The Wire, “Against the Ethos: Centre Opposes Same-Sex Marriages in Delhi HC”, Feb.25, 2021, (Accessed on May 16, 2022).

[3] Writ Petition (Criminal) No.76 of 2016, Supreme Court of India.

[4] The Constitution of India, 1950, Art.21.

[5] Samanwaya Rautray, “Same sex marriage cannot be given legal sanction: GovernmentThe Economic Times Feb.25, 2021, (Accessed on May 15, 2022).

[6] The Hague Convention, “Convention on the Recognition of Divorces and Legal Separations, 1970, Art.10.

[7] The International Convention on Civil and Political Right, 1966, Art.23(2).

[8] Communication No. 902/1999, U.N. Doc. A/57/40 at 214 (2002).

[9] The Workmen’s Compensation Act, 1923, (Act No. 8 of 1923), s.2(d).

[10] Ibid.

[11] The Hindu Marriage Act, 1956, s.9.

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