How constitutional courts can recognize same-sex marriage [Part II]

In Part 1, DORMAAN DALAL examined the provisions of the Special Marriage Act to gauge its heteronormativity and gender neutrality. IN Part 2, he plays the role of a devil's advocate to examine the probable arguments of the respondents by analysing the Third and Fourth Schedule of the Act.

Read Part 1 here.

——-

The Special Marriage Act can be applied to same-sex marriages through a liberal interpretation of the gender-neutral terms. However, the schedules to the act are different.

The First Schedule "Degrees of Prohibited Relationship" will have no application to same-sex marriages and applies only to heterosexual marriages.

The Second Schedule, which sets out the "Notice of Intended Marriage", is completely gender-neutral. Read with Section 5, one can certainly argue that it applies to all types of marriages. The Fifth Schedule which deals with the "Certificate of Marriage Celebrated in Other Forms" has to be read with Section 16. The same has no application to same-sex marriages.

However, it is the Third and Fourth Schedule which deal with the declarations of the Bride and the Bride Groom and the Certificate of Marriage and require a detailed examination.

The Respondent Union Government can make three broad submissions.

Firstly, Indian culture, customs, and traditions do not recognise such types of marriages.

Secondly, many moons before Navtej Singh, at the time of the enactment of the act the legislature had no intention to permit same sex marriages.

Special emphasis may be made on the Third and Fourth Schedule of the Act which is to be read with Section 11. As per Section 11, the declaration "shall" be signed by the parties and three witnesses. This provision is mandatory and not directory.

Schedule Three requires separate declarations by bridegroom and bride. Even the Certificate of Marriage set out in the Fourth Schedule has to be signed by the "bridegroom" and "bride". The words "bridegroom" and "bride" indicate that the Act will only apply to heterosexual marriages and not same sex marriages. Yet, the dictionary does not define these terms in relation to the opposite sex. As per Oxford English Mini Dictionary, the bride is "a woman at the time of her wedding" and the bridegroom is "a man at the time of his wedding".

Thirdly, Section 36 and 37 simply cannot be applied to same-sex marriages as the District Court can "order the husband to pay" alimony pendente lite or permanent alimony "on the application of the "wife". 

The court would commit both a carnal and cardinal sin by not following the literal rule of statutory construction. The words "husband" and "wife" in the Act should be given their ordinary meaning.

The Oxford Mini Dictionary defines "husband" as "a married man in relation to his wife" "wife" as an "a married woman in relation to her husband."

Why the argument of how 'same-sex marriage is against Indian culture'  will not work?

While it is debatable whether same sex marriage was a part of Indian cultural ethos, what is certainly non-debatable is that the Supreme Court has held that the right to marry a person of one's own choice is a fundamental right.

In Shafin Jahan v. Asokan K.M. and others, the three-judges Bench of the Hon'ble Supreme Court after referring to Article 16 of the Universal Declaration of Human Rights has held:

"21. The right to marry a person of one's choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law that is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to make decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership, are within the central aspects of identity. The law may regulate (subject to constitutional compliance) the conditions of a valid marriage, as it may regulate the situations in which a marital tie can be ended or annulled. These remedies are available to parties to a marriage for it is they who decide best on whether they should accept each other into a marital tie or continue in that relationship. Society has no role to play in determining our choice of partners.

22. In Justice K. S. Puttaswamy v. Union of India, this Court in a decision of nine judges held that the ability to make decisions on matters close to one's life is an inviolable aspect of the human personality: (SCC pp. 498-499, para 298)

"The autonomy of the individual is the ability to make decisions on vital matters of concern to life… The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination… The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual." 

A Constitution Bench of this Court, in Common Cause v. Union of India, held: 

"Our autonomy as persons is founded on the ability to decide on what to wear and how to dress, on what to eat and on the food that we share, on when to speak and what we speak, on the right to believe or not to believe, on whom to love and whom to partner, and to freely decide on innumerable matters of consequence and detail to our daily lives." 

The strength of the Constitution, therefore, lies in the guarantee which it affords that each individual will have a protected entitlement in determining a choice of partner to share intimacies within or outside marriage."

In Shakti Vahini v. Union of India, the Supreme Court held,

"44. The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. True it is, the same is bound by the principle of constitutional limitation but in the absence of such limitation, none, we mean, no one shall be permitted to interfere in the fructification of the said choice. If the right to express one's own choice is obstructed, it would be extremely difficult to think of dignity in its sanctified completeness. When two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so. And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation."

Both the aforesaid judgments have been relied on in Navtej Singh, thus firmly cementing this legal position.

Therefore, if the respondents were to make the cultural argument, they may land up shooting themselves in the foot. The respondents then run the risk of opening further doors to persons challenging the validity of various personal laws on the ground that they prohibit same sex couples from getting married.

Once Navjet Singh has held that the members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including liberties and equal protection of the law, then by no stretch of imagination can it be argued that same-sex couples are not entitled to marry partners of their choice.

Why the argument of 'legislative intent' has limited application

While it is true that the legislature never envisaged a situation in 1954 where persons of the same sex would want to get married to one another, it was certainly aware of the fact that law does not remain static.

It is precisely for this reason that in the constitutional scheme of this country, the legislature has the power to amend, repeal or enact a law in order to bring it up to speed with the changing times.

But that is the job of the legislature.

The duty of the judiciary is to look for legislative intent, not only from what is said in the Act but also, more importantly, what is not said in the Act.

There is not a single provision in the Act that prohibits persons of the same-sex from getting married to each other. In fact, as seen in part 1, the Act is more or less gender-neutral. Therefore, as observed by the Hon'ble Supreme Court in Arun Kumar and others v. Union of India and others, "where a statute is silent or inarticulate, the court would attempt to transmulate the inarticulate and adopt a construction that would lean towards constitutionality albeit without departing from the material of which the law is woven." 

Ultimately the cause of justice has to be advanced and therefore, in State of Goa v. Western Builders, the Supreme Court opined that "If the statue is silent and there is no specific prohibition, then the statue should be interpreted which [sic] advances the cause of justice." Hence, in Election Commission of India through Secretary v. Ashok Kumar and others it was held that "where statue is silent and judicial intervention is required, courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience."

It may be argued that Schedule three and four as well as the maintenance provisions cannot apply to same-sex couples. However, in the interest of justice, under Article 226 the High Court can direct State Governments to prepare separate declaration forms for same-sex couples, and marriage officers to register such marriages.

Further, under Article 227 (2) (b) of the Constitution, the High Court can make rules for all subordinate courts and tribunals within the State to entertain proceedings of same-sex couples. In addition, until a law is enacted, the Supreme Court can issue directions under Article 142 to fill the vacuum, as was done in cases such as Vineet Narain and others v. Union of India and another and Vishaka v. State of Rajasthan.

Lastly, with respect to the literal rule of construction argued in Part 1 of this series, the Act has several provisions that are gender-neutral. While the words "husband", "wife", "bride" and "bridegroom" should ideally be given their ordinary and natural meaning, adopting this course in same-sex marriages would result in depriving same sex couples of their fundamental right to marry.

In Mahadeolal Kanodia v. The Administrator General of West Bengal the Supreme Court observed,

"….. If the strict grammatical interpretation gives rise to absurdity or inconsistency, the Court could discard such interpretation and adopt an interpretation which will give effect to the purpose of the legislature. That could be done, if necessary, even by modification of the language used."

The purpose of the legislature was never to prohibit same-sex marriages or violate constitutional provisions. However, considering the aforementioned absurdity, the court can always step in to interpret the Act or even modify the language to negate the absurdity.

The road to equality for LGBTQIA community is long and meandering with potholes and bumps along the way. The problems that each group within the community faces are diverse and far more complex than one could imagine.

For instance, even though transgender rights are recognised by the Supreme Court's judgment in National Legal Services Authority v. Union of India and others, the members of the transgender community would still not be able to apply under the Special Marriage Act. However, the recent judgment of the Madras High Court directing the authorities to register a marriage solemnised between a man and a transgender woman under the Hindu Marriage Act, 1955 gives some hope.

But it would be naive to assume that in India, the legislature would actually bring in a law to effectively recognise and enforce the rights of the LGBTQIA community.

Creative statutory constructions by the judiciary would go a long way in ensuring complete justice to various stakeholders.

The courts are slowly and surely rising up to the challenge. Recent decisions by High Courts of Orissa, Punjab and Haryana and Uttarakhand expressly recognising and enforcing the rights of same-sex couples to live together show this. Therefore, it would be interesting to see how far the Delhi and Kerala High Courts would be willing to go to do complete justice.

(Dormaan J. Dalal is a practicing advocate at the Bombay High Court and the NCLT, Mumbai. Views are personal.)