Author: Sunil Tyagi, Managing Partner ZEUS Law Associates

Published in on 17th October 2023

In 2018, the Supreme Court’s Constitution Bench repealed Section 377, decriminalizing homosexuality and marking a crucial victory for the LGBTQIA+ community, however, the Supreme Court has today refused to give legal recognition to same-sex marriages. The absence of formal marriage rights for same-sex couples has repercussions on succession and inheritance laws. The legal framework governing succession and inheritance is primarily dictated by personal laws corresponding to an individual’s religious affiliation. Consequently, even when there is social acceptance, these couples continue to face discrimination in various aspects which, inter alia, include purchase of property, inheritance, access to joint home loans, etc.

This article discusses 5 (five) questions that same-sex couples usually ponder about before purchasing property.

  1. Can same-sex couples jointly buy property? 

While any heterosexual couple in India can jointly buy a residential property, same-sex couples would not be able to jointly own property as same-sex marriages are not recognised in India. Various government bodies only permit family members to jointly own residential property, therefore, same-sex couples might be able to own the property as individual co-owners, but they would still lack the satisfaction of jointly owning the property as a couple. 

  1. Would this have changed same-sex marriage had been allowed?

Legally recognising same-sex marriage would have yielded numerous positive outcomes in the real estate sector. It would have enabled them to jointly apply for residential plots under various government schemes, as then they would have been family members and would have enjoyed the privilege of jointly owned property. 

  1. Can same-sex couples inherit property? How will this change if same-sex marriages are permitted?

Indian succession laws are determined by the personal laws of distinct religious communities, and these laws categorize heirs into two gender-based groups: Male and Female. The Hindu Succession Act, applicable to Hindus, Buddhists, Sikhs, and Jains, does not recognize same-sex marriages, depriving same-sex spouses of automatic inheritance rights. Likewise, personal laws in other religious communities like Muslims, Christians, and Parsis also do not acknowledge same-sex marriages, posing challenges for same-sex couples seeking inheritance rights. Same-sex marriages can be permitted by amendments to personal laws governing succession to grant same-sex spouses legal rights over a partner’s property in the event of their untimely death or otherwise. In the absence of such laws, same-sex couples have no legally recognised rights of inheritance to the partner’s property.

  1. Can same-sex couples avail of joint home loans? How will this change if same-sex marriage is legally recognised?

While any two people can buy a property together, only blood relatives or legally married couples can jointly apply for home loans. If one wants to apply for a home loan jointly, one of the mandatory requirements is proof of relationship. This limitation prevents LGBTQ+ partners from applying for loans together in the absence of legalized same-sex marriage. Upon the recognition of same-sex marriages, such prevailing limitations would no longer be applicable as they would be able to provide proof of relationship to avail of joint home loans.

  1. What is the situation of same-sex couples around the world?

The situation surrounding LGBTQ+ rights and recognition varies widely around the world. While several jurisdictions have made strides in legalizing same-sex marriage and protecting LGBTQ+ individuals from discrimination, others continue to uphold restrictive policies and discriminatory practices. In some countries, like France and the USA, LGBTQ+ couples can jointly own property and access the same financial rights and privileges as those accorded to heterosexual couples, while in some others, legal recognition and inheritance rights remain elusive. The global landscape is marked by an ongoing struggle for equal rights and recognition, reflecting the diversity of cultural, social, and legal perspectives on LGBTQ+ issues.