Recently, Nitin Meshram and Dilip Mandal wrote an article, ‘There are preconditions in Special Marriage Act that same-sex marriage debate is ignoring’, to argue how procreation is a precondition under the Special Marriage Act 1954 and that this conditionality disqualifies the demand for marriage equality. The arguments made in the opinion ranged from the original intent of the Constitution drafters, the division of power between the legislature and the judiciary and non-heterosexual marriages being a concern of civilisational extinction. However, the originalist approach advocated in the above-mentioned piece misconstrues absences as prohibition and reads history as a grand wall-hanging without a social context. This article responds to various concerns flagged by Meshram and Mandal and restricts itself to the history and possibilities that the Special Marriage Act 1954 provides.
Searching for the Constitutional Intent?
The Constitution of India does not contain any article that explicitly talks about the “right to marry”. It alludes to marriage (entry 5) as a social institution in the concurrent list of the Seventh Schedule in a regulatory sense, referring to questions of separation, children, inheritance, and families. The Indian government regulated marriages in the country through the enactment of various legislations, providing legal sanction to various forms of relationships while prohibiting others in tandem with diverse social customs around sacramental and civil marriages observed in India. A deeper look at the Constituent Assembly debates will underscore the legislative orientation of law-making in the formative years of India.
On 4 April 1949, MP and Constituent Assembly member Pandit Thakur Das Bhargava asserted that legislating on marriages in India needed to be progressive, permissive, and enabling in nature while talking about inter-faith marriages. The thrust was to be democratically accommodative of a diverse form of sacramental marriages in India and provide civil recognition to partnerships that were religiously disavowed.
On similar lines, on 13 December 1949, PK Sen, a Constituent Assembly member from Bihar, emphasised the instrumentality of the Special Marriage Act of 1872 as a progressive legislative tool to democratise the institution of marriage across various social groups and communities. The original 1872 Act was introduced to provide State recognition to inter-faith marriages, which were not recognised by the religion/s of prospective partners. As documented in the debates, it progressively resulted in the introduction of the Special Marriage Act 1954, given the growing demand from various social groups to extend civil recognition to interfaith couples without compromising on their right to profess their respective faith. The historical legacy and intent of law-making around marriages were enabling and not restrictive, permissive and not prohibitory, even when it went against the majoritarian social morale. As Sen, during the presentation of the Report of the Select Committee on Hindu Marriages Validity Bill succinctly put it,
“Today, we do not know which section is the minority and which section is the majority. But it goes without saying that in a democratic form of government, all sections of people must necessarily have their conscience vindicated.” (13 December 1949)
Fast forward 69 years, the Indian democracy faces a similar social situation, where the demand for the right to marry needs to be envisioned for persons with varied gender identities and sexual orientations, a constitutionally recognised social group (NALSA v. UoI 2014 and Navtej Singh Johar v. UoI 2018). The displacement of religion with gender as the site of denial raises a similar constitutional contention – can identity be a premise to one’s ability to exercise their natural right to live a life with dignity? Here, it becomes important to remember that conflating the institutional regulation of marriage with the human capacity to exercise their freedom to choose a partner is a purposive error. The denial to recognise LGBTQIA+ relationships is a structural impediment to the freedom of human choice. In the absence of law, the lacuna creates an extra-legal space bereft of socio-legal and economic rights for LGBTQIA+ partners.
The Supreme Court hearing a batch of petitions regarding marriage equality remains contingent on two stark socio-legal realities – first, the consistent failure of appropriate governments – Union or State – even in protecting the liberties of individuals exercising their choice to marry within the strictures of available statutes. Failure as an act and failure as a pattern in the political history of our democracy are two distinct travesties, with the latter underbellying significant constitutional implications.
Second, the Supreme Court is not adjudicating on the question of the permissibility of marriage for the first time. The court, over the years, has set multiple precedents where it has read in the right to marry as an inherent aspect of Article 21 of the Constitution, acknowledging the appropriate government’s incapacity or inability to protect the fundamental rights of its citizens to exercise their choice in marriage. In Shafin Jahan v. Asokan K.M and others, the court reiterates that the basic right to marry for any person remains apriori to legislative regulation till the appropriate government brings in a law that is substantively and procedurally fair and reasonable.
Therefore, the Supreme Court needs to weigh in on the fact that if SMA remains the only way to recognise marriage outside personal laws and does not extend the right to marry to LGBTQIA+ partners, then does it remain a passive case of under-inclusion or becomes an active case of blanket discrimination against a socially marginalised group?
Is procreation a precondition to marry under SMA?
Procreation as a precondition for marriage under SMA is untenable to stonewall queer marriages. One, it reads section 4(b) wrongly. The centring of procreation is a story of how marriage is reduced to an institution essentialised around the sexual autonomy of a woman, more so on the subversion of the same. Biology is used to imprint a civilisational burden on the uterus through the legal configuration of marriage. Here, procreation does not just restrict itself to the capacity of carrying a child but ascribes itself a functional status that subsumes our entire imagination of what a marriage is and what a marriage should be.
If impotence were codified as a prerequisite to solemnise marriage, it would alienate not only some LGBTQIA+ couples but also consenting people in love who are old or/and have varied disabilities. It is important to note that sterility is not grounds for divorce under SMA or section 13 of the Hindu Marriage Act 1955.
Second, the problem with section 4 (b) and associated sections is that there are provisions to declare someone unfit. However, there are no standards to declare a person mentally fit. It hides the slippery slopes in the benchmarking of mental health conditions in India. Meshram and Mandal have discounted the fact that the Supreme Court in R. Lakshmi Narayan v. Santhi 2001 and Sharda v. Dharmapual 2003, emphasised how mental disorders need to be treated in terms of their impact and effect on married life on a case-to-case basis and not by virtue of mere labelling. Further, the procreation argument, in a blanket manner, skips the fact of how many queer partners – whose identities do not resonate with the pairing of cisgender men and cisgender women – hold the capacity to procreate both biologically and with assisted technology.
Beyond human anatomy, addressing the political theory and intent implied on procreation as a precondition for matrimony is also important.
The uterine wall created around procreation to nurture it as an indisputable precondition to marriage in the name of BR Ambedkar is a miscarriage of truth. In his various writings, Ambedkar has theorised how the societal management of sexuality solidifies graded inequality among individuals within Indian society. Ambedkar, in the paper ‘Castes in India: Their Mechanism, Genesis and Development’ (1917), draws upon the sexual surplus theory to unravel the dangers of procreative sexuality as the pivot of exclusive social structures like Hindu Caste communities.
Ambedkar viewed society to be operating on a sexual equilibrium, and the survival of this sexual equilibrium was essential for the caste system to survive. In the text, he asserts how patriarchal society treated the problem of surplus men and women differently. Surplus women were either subjected to immolation (Sati) or ritualised widowhood so that they did not pose the double danger of either violating the law of endogamy or encroaching upon other marriageable men within the caste group, creating a disparity and consequently producing a caste problem. However, the surplus man was not a disposable figure as he signified social and labour value for a caste group. The surplus man could not be burnt on the pyre of his dead wife nor be turned into an ascetic because an ascetic man was as good as a burnt one.
Therefore, a solution had to be devised without compromising the “Grahastha” (householder) capability of the surplus man. A resolution to this problem was found in searching for the surplus man a wife outside the marriageable age group to avoid numeric disparity. Thus, the practice of girl-child marriage gained prominence. This social arrangement signifies how any social humiliation of an asset (read man) valued by a system materially humiliates the entire system (read patriarchal caste system). This equilibrium comes at the cost of equality.
Also Read: SC asks Modi govt to consider granting benefits to same-sex couples without recognising marriage
Is marriage equality a civilisation death knell?
The only truth underlying the longevity of any civilisation is not procreation but its ability to adapt to social change. Sacramental and civil marriages in pre and post-Independent India have undergone significant change. Partner selection, removal of same-gotra marriage restriction, change in the age of marriage, change of marriage rituals, the introduction of widow remarriage and inter-faith and inter-caste marriages by Indian courts and legislatures have always leaned toward the democratisation of marriage even when social morality rigidly stood against such changes.
Meshram and Mandal have argued that, unlike the United States, freedom in India is not absolute. The government can exercise regulatory power to mediate private sexual activities in the interest of public health and morality. However, it is contingent on certain socio-legal realities.
First, it omits the fact that regulatory laws in India need to provide a reasonable restriction to justify the State’s encroachment on an individual’s fundamental right. Second, the contention that the extension of the right to marry for persons with varied gender and sexual identities will disrupt the procreative cycle of society is a logic that can only be reasonable if all the members of the society were default homosexuals and were held into heterosexuality and heterosexual union-ships by the decree of law.
The usage of procreation and its selective linking to civilisation as something bigger than an individual, the government, and the law, is an implicit example of racial writing that valourises procreative lineage of a certain kind as worthy of law’s treatment and protection. There has been no civilisation in world history that ended because of LGBTQIA+ marriages. However, multiple civilisations have perished at the altar of human discrimination and double standards.
Vaivab Das is a Fulbright Nehru Doctoral Research Fellow at the Indian Institute of Technology, Delhi. They specialise in Legal Anthropology, Gender and Sexuality Studies. They tweet @D_Vaivab. Views are personal.
Dilip Mandal’s response:
I’m thankful to the author for the in-depth response. However, I would like to present a few counterpoints:
My firm belief is that the Parliament should make decisions about marriage, given its far-reaching social and civilisational implications. This perspective arises from the fact that Parliament, as the voice of the people, tends to have a closer understanding of people and society compared to the judiciary. If legislative actions have wrong consequences, our lawmakers should be prepared to face them and be held accountable.
I concur that past ideologies should not control our present actions, signifying that no part of the Constitution or any law is rigidly fixed and unchangeable. I, too, advocate for progressive constitutionalism. However, I disagree with the Supreme Court’s conception of a ‘basic structure’ of the Constitution. In my opinion, we need to reexamine the Keshavananda Bharti judgment. It appears to represent an elite revolt aimed at undermining Parliament, which was undergoing transformation due to democratic and subaltern surges. Basic Structure Doctrine should not be evoked in this case. Although Article 21 of our Constitution does not explicitly mention the right to marry, the courts have interpreted it to include this right. This interpretation, however, does not resonate with my viewpoint.
The Special Marriage Act 1954 specifies a prerequisite concerning the procreation of children. Like any other law, this requirement could also be called into question. Interestingly, this prerequisite was also included in the draft Hindu Code Bill by then-Law Minister BR Ambedkar in Parliament. However, as I have stated before, laws are not static. While I do not hold a firm view on whether this requirement should remain or be removed, I stress the importance of Parliament in making such determinations. Their role is to represent us and make such crucial decisions.
Views are personal.
ThePrint closes the discussion here.