The ongoing public debate and Supreme Court proceedings about same-sex marriages is missing a few glaring issues that are built into India’s Special Marriage Act 1954 and Hindu Marriage Act 1955. And there are several pre-conditions for solemnisation of marriage but chief among them is capability to procreate children.
The capability to procreate is quite important in the matter of marriage as “being impotent’ is a ground for divorce. This condition is also there in the original draft of Hindu Code Bill authored by the first law minister Dr. B.R Ambedkar. Even for civil marriage he envisaged the concept of “bride” and “bridegroom” as the draft clearly mentions a precondition for marriage that – the bridegroom has completed the age of eighteen years and the bride the age of fourteen years at the time of the marriage. It implies that founder of marriage laws in India, Dr. Ambedkar never contemplated same sex marriage.
Special Marriage Act 1954 and Hindu Marriage Act 1955 govern the marriage system in India. Parliament enacted these laws by exercising powers under Article 25, 246 and Seventh Schedule. India also has religion specific laws for regulating marriages.
The Supreme Court is hearing a bunch of petitions calling upon it to declare that the Special Marriage Act, 1954 ought to apply to a marriage between any two persons regardless of their gender identity or sexual orientation or declare the Special Marriage Act, 1954, unconstitutional. We are of the opinion that this matter should not be heard in the court, for two reasons; firstly, because, the conditions imposed by the Parliament by enacting the Special Marriage Act, 1954 and Hindu Marriage Act, 1955 are enacted by the Parliament in exercise of the valid source of power bestowed by the Constitution and the exercise is not violative of fundamental rights guaranteed by the Part 3 of the Constitution and secondly for the reason that the petitioners are calling upon the Supreme Court since they have claimed as their first relief in their lead petition, Supriyo v. UoI to recognise a new category of marriage which will eliminate a gender difference outlined by section 4 (c) of the Special Marriage Act, 1955.
The powers of Parliament with respect to marriage and population have been provided by the Constitution under the Concurrent List of Seventh Schedule and, therefore, the Parliament is competent to enact the legislation relating to marriage and population. By recognising same-sex marriage, the Supreme Court will not be interpreting the marriage law but the same would amount to a rewriting of the laws as the same sex marriage hasn’t been recognised by the Special or Hindu Marriage Act. Two, the discrimination based upon gender for marriage is not a violation of non-discrimination on the basis of sex under Article 15 of the Constitution and at the same time it does not violate privacy or sexual orientation. The Acts impliedly seeks the purpose of continuation of the human race through marriages and procurement of children. Also, the alteration in the marriage law or the condition of marriage will have huge implications on the society at large as the marriage is the foundational institution of the society and therefore it falls within the exclusive domain of Parliament and not the court.
Also read: Same-sex marriages don’t threaten the family unit; they strengthen it
Does it fall within the court’s domain?
Article 21 states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This has been broadly interpreted by the courts to include various rights related to personal life and human dignity, including right to privacy, right to health, and right to livelihood. Right to marry is typically considered a civil right. Civil rights and fundamental human rights are two different rights. Whether the same sex marriage is an inherent and inalienable right? Whether this is a natural right? And in our opinion, they are neither the inherent or inalienable nor natural rights. Therefore, the right to live together and have a sexual orientation of choice towards the same sex or the right to marry a partner of one’s choice can be denied or regulated. Even for the heterosexual marriages, we have prohibited degrees of relationship and the marriages between those relationships cannot be solemnised or recognised.
While fundamental rights are inherent and inalienable, civil rights are not. The rights of individuals governed by the Constitution and status (and to be free from discrimination) in a number of settings, including education, employment, housing. Marriage is one of these settings.
In Shafin Jahan vs. Asokan K.M. & Ors (2018), the Supreme Court held the right to marry a person of one’s choice as integral to Article 21 of the Constitution. However, it’s worth noting that this case involved an interfaith heterosexual marriage. When it comes to same-sex marriages, the same interpretation of Article 21 will not be permissible because the law doesn’t recognise the same sex marriage and same sex persons do not have right to marry at the first place and therefore, they will not have right to marry a person of their choice within the same sex.
One of the conditions of solemnisation of marriage is that neither party should be unfit to procreate children. The said condition is uniformly found in both the Special Marriage Act and Hindu Marriage Act. Therefore, the said condition has nothing to do with religion.
Section 4(b) of the Special Marriage Act lays down the condition that: Neither party―(i) is incapable of giving a valid consent to it (marriage) in consequence of unsoundness of mind; or (ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage “and the procreation of children.” (Emphasis supplied) The same conditions exist in Section 5(b) of the Hindu Marriage Act.
It could be argued that the Special Marriage Act does not explicitly require biological capability to procreate for marriage and that the phrase laying down the condition, “and the procreation of children” is linked to the requirement of being of a sound mind. But this will be a wrong reading of the law as mental health conditions do not necessarily prevent a person from having capability to procreate children biologically. Mental health and physical health, including reproductive health, are distinct. There must be a purpose of having the condition of “procreation of children” as a condition for marriage.
Since marriage is linked to procreation of children for the continuation of the human race, it is neither a religious nor a legal condition. It is a civilisation matter. Civilisation cannot be sustained unless people procreate children and hence that condition can reasonably be enforced by Parliament to recognise marriages. This doesn’t discriminate against people based on their sexual orientation but their capacity to procreate. Since same sex couples cannot procreate, their marriage cannot be solemnised under the existing mechanism.
Also read: SC cautious with same-sex marriage case. Keeping personal laws out is in state’s interest
Is right to privacy violated?
Does having procreation as a condition for marriage violate the right to privacy? No, it doesn’t. That is because the State is not interfering in the private affairs of citizens; it is the social affairs of citizens that are under debate right now. Procreation of children is a societal norm for continuation of civilisation, and therefore it is a social affair. Also, the State cannot be expected to destroy its own civilisation. While marriage is a civil right and sexual orientation can be said to be a private right, procreation of children is a social and civilisational obligation. And is a legitimate expectation of the State to ensure that society continues. In fact, people are greatly worried in some countries due to the decline in birth rate.
Since the offence relating to sexual activity between same-sex people has been outlawed, same sex couples cannot ask for their union to be recognised as a marriage, without fulfilling the valid conditions imposed by the Parliament.
Therefore, non-recognition of same-sex marriage does not violate the rights of LGBTQ individuals. Sexual orientation and marriage are two different rights. The first is a private right protected by 14th Amendment in the United States as held by the 2003 Judgment of US Supreme Court in Lawrence v. Texas and India’s Supreme Court in Puttaswamy (2017) and Navtej Singh Johar (2018) and second is a civil right, which Parliament has a competence to regulate.
Unlike the United States, our Constitution does not guarantee absolute freedom to citizens, allowing the State to regulate certain freedoms. India is not a country with unrestricted freedoms, which means that private sexual activity between consenting adults can be subject to regulation in the interest of public health, decency, or morality. Consequently, the recognition of same-sex marriage is a matter that falls under the jurisdiction of Parliament because it would require a relaxation of an existing but valid condition or addition of a new condition for recognition of marriage, and this is despite the Supreme Court considering it a private right while decriminalising sodomy.
Additionally, India is a land of protective discrimination. Recognition of same-sex marriage will eliminate legal differences between men and women, which are essential for sustaining protective discrimination on the ground of gender, as women have always been recognised as the weaker section in India. This concept is clearly mentioned in the Article 15 of the constitution – (3) Nothing in this article (15) shall prevent the State from making any special provision for women and children.
All these crucial aspects must be discussed by Parliament to determine the viability and assess the impact of recognising same-sex marriages.
Nitin Meshram practices law in the Supreme Court and various High Courts. He tweets at @meshramnitin_. Views are personal.
Dilip Mandal is the former managing editor of India Today Hindi Magazine, and has authored books on media and sociology. He tweets @Profdilipmandal. Views are personal.
(Edited by Prashant)