New Delhi: On 13 March this year, a three-judge Supreme Court bench referred a batch of 21 petitions demanding legal recognition of same-sex marriage to a five-judge constitution bench. In doing so, it had then observed that the petitions involved an “interplay between constitutional rights and specific legislative enactments”, including the Special Marriage Act, 1954.
The reference was made in line with Article 145 (3) of the Constitution, which underlines that petitions raising substantial questions of law involving interpretation of the Constitution should be heard by at least five judges.
The SC order had brushed aside the Centre’s objections to the prayers made in the petitions, and the government’s assertion that only Parliament could legislate on the issue of same-sex marriage.
The 10-day marathon hearing, which concluded on 11 May, provided an insight into the LGBTQ+ community’s struggle for equal rights in India. The petitions collectively challenged the provisions of the Special Marriage Act, 1954, the Hindu Marriage Act, 1955, and the Foreign Marriage Act, 1969.
It was the petitioners’ argument that since these laws do not give legal backing to non-heterosexual unions, they deny the LGBTQ+ community’s right to live with a partner of their choice, a right that was bestowed on them after the Supreme Court’s 2018 Navtej Johar verdict, which decriminalised homosexuality.
On the other hand, the Centre strongly opposed the petitioners’ demand, warning the court against its acceptance. In the Centre’s view, the court lacked jurisdiction to entertain such petitions and Parliament was the appropriate forum to consider the issues raised in the petitions.
ThePrint takes a closer look at what transpired during the hearing of this historic legal battle, the Centre’s objections, the stand taken by religious institutions and opposing concerns expressed by two child-rights statutory bodies.
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Petitioners’ stand
The case began with the top court taking note of two petitions filed before it, which centred around the constitutionality of the Special Marriage Act (SMA). On 25 November, 2022, the SC decided to hear the two petitions together.
Filed by two gay couples, the petitions described the SMA as discriminatory, as it recognised marriage only between a male and female. This, the petitioners contended, denied matrimonial benefits — such as adoption, surrogacy and retirement benefits — to same-sex couples.
While the SC decided to hear the two petitions, similar pleas were already pending in the high courts of Delhi, Kerala and Gujarat.
Abhijit Iyer Mitra, a senior research fellow at Institute of Peace & Conflict Studies, was the first to raise the issue in the Delhi High Court in November 2020. Subsequently, seven more pleas were filed in the court over the next two years.
On 6 January, 2023, a bench led by Chief Justice D.Y. Chandrachud transferred all petitions pending in various high courts dealing with same-sex marriage to the top court.
The first petition in connection with same-sex marriage was filed by Mitra in November 2020, almost two years after the SC read down Section 377 of the Indian Penal Code (IPC) to grant legal validation to homosexuality in India.
Mitra’s petition and the others that were filed in the last two years sought recognition of same-sex marriage under community-specific laws, particularly the Hindu Marriage Act (HMA), which is followed by Buddhists, Sikhs, Jains and all the sects of Hinduism.
It is argued that the HMA does not differentiate between heterosexual and homosexual marriages in its wording. According to Section 5 of the HMA, a marriage may be “solemnised between any two Hindus”. Section 5 lists the conditions for a marriage.
However, even before the hearing could commence, the top court clarified it would steer clear of personal laws. Hence, the challenge to the HMA was not taken up.
The bench advised incremental change, suggesting the court should look into limited issues pertaining to the SMA or Foreign Marriage Act (FMA), without entering into the realm of personal laws.
Some petitions also asked for registration of same-sex marriages under the SMA, which is a secular law.
Although Section 4 of the Act talks about solemnisation of “marriage between any two persons”, sub-section ‘c’ of the same provision deals with the minimum age of a male and female to be eligible for marriage. Section 4c notes that a male should have completed the age of 21 years and a female 18 to get married.
The FMA also stands impugned for the same reasons as cited for the SMA. The petitioners who have questioned the constitutional validity of this law have objected to the use of the terms “bride” and “bridegroom”, stating that the two words limit the law’s application to heterosexual marriages.
The laws also violate their right to freedom of expression as well as right to privacy, which was declared a fundamental right following the Puttaswamy judgment, the petitioners have said.
They asked the court to either strike down the “discriminatory” provisions or interpret them in a manner that includes homosexual couples.
The opposition
The Centre questioned the maintainability of the petitions, while arguing that marriage is a socio-legal institution that could only be created, recognised and regulated by the competent legislative body under Article 246 of the Constitution.
The courts, it added, cannot create or recognise marriages through judicial interpretation or legislative adjustments.
Terming it an elitist view, the Centre told the SC that the petitioners could not claim a fundamental right to same-sex marriages, adding that it was not opposed to same-sex relationships, but did not favour extending legal status to them in the form of marriage.
According to the “legislative understanding of marriage in the Indian statutory and personal law regime”, it refers only to marriage between a biological man and biological woman, the Centre said.
Urging the court to let Parliament take a call on the issue, the Centre asserted that any “recognised deviation… can occur only before the competent legislature”.
The current definition of marriage has a social consensus, and the legislature, in giving sanction to that form, is only discharging its duty of adhering to the will of the people, the Centre submitted.
Significantly, the Centre had agreed to set up a committee to look into the aspect of granting certain rights to same-sex couples to ensure their social security and welfare.
The committee, it offered, would work out a mechanism that would allow such couples to undertake financial security measures, such as insurance policies, provident fund, etc, without legal recognition of their union under any civil law.
Certain organisations, including religious bodies, joined the Centre in opposing the registration of same-sex marriages.
NGO Sewa Nyaya Utthan Foundation’s application filed in court said same-sex marriages should not be permitted under the HMA, as in Hinduism tying of the nuptial knot is allowed only between a man and woman since times immemorial.
“Marriages in societies like Hindu are very much part of their religion and derived and associated with their divine entities as well as religious texts and thereby hold significant sentimental values,” the NGO submitted.
Similarly, an application filed by the Varanasi-based Akhil Bhartiya Sant Samiti submitted that marriage, according to Hindu law, was a “holy sanskar (sacrament)” and not a contract like in Islam. Claiming to be a body of 127 sects of “sanatana dharma”, it said it was working for the welfare and uplift of “sanatana culture, vedic development and social upliftment”.
Muslim body Jamiat Ulama-i-Hind, too, opposed same-sex marriage, calling it an “assault on the family system”. The Jamiat Ulama-i-Hind is one of the leading organisations of Islamic scholarships belonging to the Deobandi school of thought.
Calling same-sex marriage “an exclusive western concept”, Telangana Markazi Shia Ulema Council — which claims to be a religious and spiritual organisation — said it was “unsuited to the social fabric of India”.
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Arguments from child-rights bodies
Meanwhile, two statutory child-rights bodies presented contesting claims on the issue of same-sex marriage.
While central body National Commission for the Protection of Child Rights (NCPCR) opposed the pleas on the ground that adoption by same-sex parents was akin to “endangering children”; the Delhi Commission for Protection of Child Rights (DCPCR), a child-rights body of the Delhi government, backed same-sex marriages as well as adoption by homosexual couples.
The NCPCR argued that same-sex parents had limited exposure to traditional gender role models. Hence, children adopted by them would have limited exposure and their overall personality growth would be affected.
The DCPCR said there was no empirical data to suggest that same-sex couples were unfit to be parents or that psycho-social development among the children of same-sex couples was compromised.
(Edited by Nida Fatima Siddiqui)
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