Recognition Of Foreign Same-Sex Marriage In India
- IJLLR Journal
- 2 days ago
- 2 min read
Shalini. K, Vinayaka Missions Law School Thakira Begum. A, Vinayaka Missions Law School
ABSTRACT
Indian courts generally apply traditional conflict-of-laws principles that originate from the First Restatement on Marriage and English common law when determining the validity of marriages. In India, judicial decisions have largely depended on these English legal principles to resolve questions relating to which law should govern a marriage. At the same time, there is limited case law dealing with the recognition of marriages performed abroad, even in relation to heterosexual couples. These legal rules are also built on heteronormative assumptions. For instance, traditional domicile rules treat the wife’s domicile as automatically following that of her husband. When a marriage as a same-sex marriage is not permitted under Indian domestic law, courts may rely on the doctrine of public policy to refuse recognition of that marriage, even if it was legally valid in the country where it was celebrated. At present, Indian statutes do not explicitly or implicitly recognize same-sex marriages.
However, the Indian Constitution, often described as transformative in nature, promotes principles of equality, dignity, and non-discrimination. This creates a tension between constitutional ideals and the existing legal framework. Consequently, an important question arises: should public policy be understood based on current statutory laws that do not recognize same- sex marriages, or should it be shaped by constitutional values that support equality
This paper argues that the public policy exception should be interpreted in a manner that allows for the recognition of same-sex marriages performed abroad. It suggests that the judiciary’s evolving understanding of marriage equality should be regarded as a form of “new public policy.” By adopting this approach and applying the public policy doctrine more narrowly, Indian courts could recognize foreign same-sex marriages that are valid under the law of the place where they were celebrated.
Key words: Same-sex marriage, Recognition Public, Policy doctrine Conflict of laws Private international law, Recognition of foreign marriages, Constitutional morality, Marriage equality
