Case for recognition of same sex marriage under Special Marriage Act

While there is scope for inclusive interpretation of the Special Marriage Act, the Supreme Court’s recent judgment in Deepika Singh versus Central Administrative Tribunal & Ors opens the window for a change in judicial attitudes towards same sex marriages.


THE Supreme Court’s judgment in the case of Navtej Singh Johar versus Union of India (2018) was a watershed moment for the LGBTQ+ community. This judgment decriminalised consensual sex between two people of the same gender.

A lot of noteworthy points were made in the judgment. According to then Chief Justice Deepak Misra, society is constantly evolving and therefore, there is a constant need to transform the constitutional idealism into reality by promoting inclusion of pluralism and abandoning the idea of alienation. The above statement shows that law is dynamic and changes with time, as society evolves.

Justice Misra held that the LGBTQ+ community has the same fundamental and constitutional rights as other citizens, and that their choices need to be respected as that is the essence of constitutional values like dignity and liberty.

The question now arises: does there exist a right to marry whomever one wants under the Constitution?

Despite the fact that the Constitution does not expressly mention the freedom to choose one’s spouse, the Indian judiciary has time and again recognized and maintained this right in a number of judgments. Over time, it has been established that Article 21 includes a constitutional right to marriage.

In the case of Lata Singh versus State of UP (2006), a woman had married a man out of her caste; the Supreme Court, in this matter, held that the freedom to marry whomever you want is a right that no one can take away, provided the parties to the marriage have reached majority. Lata Singh is a widely cited judgment, as even though at the time there was no caste-related prohibition on marriage, this was one of the first judgments to talk about how inter-caste marriages are actually of national importance and why they must be promoted.

In Shafin Jahan versus Asokan K.M. (2018), the Supreme Court observed that society was going through a significant era of transformation. Marriage-related intimacy falls within an inviolable core zone of privacy, and even issues of faith would have the least impact on it, it noted. Article 21 was found to be fundamentally inclusive of the freedom to marry whomever one chooses.

Society is constantly evolving and therefore, there is a constant need to transform the constitutional idealism into reality by promoting inclusion of pluralism and abandoning the idea of alienation.

This view was also upheld in a number of judgments by the Supreme Court, such as Laxmibai Chandaragi B versus State of Karnataka (2021). Similarly, in Shakti Vahini versus Union of India (2018), the court held that when two consenting adults choose a life partner, they are well within their rights as provided by Articles 19 and 21 of the Constitution.

Here, it should be noted that the court says “two consenting adults” and does not mention the gender of the adults. Therefore, through precedent, it can be said that the right to marry is a fundamental right given under Article 21 of the Constitution.

Article 141 of the Constitution provides that the law declared by the Supreme Court is binding on all the courts within the territory of India. Lata Singh and Navtej Singh Johar were both decided by the Supreme Court, since there exists a right to marry whomever one wants to, then the members of the LGBTQ+ community have the same fundamental and constitutional rights as the other citizens of India. Most of the precedents above don’t specify that the two consenting adults must be of the opposite gender.

Also read: Same-sex marriage in India: why are Indian courts taking so long?

Violation of Article 14

Article 14 of the Constitution provides that every person is equal before the law and is entitled to equal protection by law. According to Article 14, everyone has the right to receive equal treatment under the law. While it permits making distinctions between various groups of people, it also stipulates that these distinctions must be based on discernible differences and have a logical connection to the goal being pursued. According to the Supreme Court in Navtej Singh, there is no intelligible difference between individuals who participate in “carnal intercourse outside the order of nature” and those who engage in “natural” intercourse.

The ratio in Navtej Singh Johar was that all of the fundamental and constitutional rights are available to the LGBTQ+ community too. While preaching equality, the law cannot deny certain people the right to get married solely because of their choice of marrying someone of the same sex, when precedents expressly mention that the fundamental rights are available to the LGBTQ+ community. Therefore, if the constitution is preaching equality, then marriage as an option must be available to all, irrespective of the fact that people of the same sex want to get married.

Article 15 violation

Article 15 of the Constitution states that the State cannot discriminate against any citizen on the grounds of race, sex, caste and place of birth. In the case of NALSA versus Union of India (2014), the Supreme Court widened the meaning of the word ‘sex’ in Article 15 to include gender too. It is important to note that ‘gender’ and ‘sex’ are not the same. People who are male, female, or intersex physically differ from one another. This is referred to as ‘sex’” Physiological factors, such as a person’s genitalia and chromosomal makeup, are often used to determine a person’s sex at birth.

While preaching equality, the law cannot deny certain people the right to get married solely because of their choice of marrying someone of the same sex, when precedents expressly mention that the fundamental rights are available to the LGBTQ+ community.

Contrarily, gender is determined by how a person identifies. Gender is not composed of binary components like natal sex. Instead, there is a wide spectrum of gender. A person can identify anywhere along this spectrum, or even completely outside of it.

The Madras High Court upheld a Hindu marriage between a cisgender man and a transgender woman in Arun Kumar and Anr. versus The Inspector General of Registration and Ors. (2019). According to Justice G.R. Swaminathan, the term ‘bride’ in Section 5 of the Hindu Marriage Act, which outlines the prerequisites for Hindu marriages, cannot have a fixed definition. Instead, it needed to be revised to take into account transwomen, intersex persons, and other transgender people who identified as women, as well as the shifting sociocultural standards. The court went on to acknowledge that there are several gender identities. Contrary to the position of the Union Government, the court upheld the validity of marriages between non-traditional genders (that is, those that were not to biological women) despite the fact that it did not address same-sex marriage in its ruling.

Also read: Scope of same-sex marriages and gender neutrality of the Special Marriage Act [Part I]

Union government’s stand

There are a number of petitions pending in different high courts seeking recognition of same-sex marriages. The Union government has taken a stand against the same.

In order to preserve “social morality,” the Union Ministry of Law and Justice stated in February 2021 that it was in the “legitimate State interest” to only allow marriages between people who are of the opposite sex.

It further stated that there was a certain sanctity linked to the institution of marriage throughout the nation. The “most natural approach feasible” is required to be used in raising children by parties of different sexes. A marriage of this kind results in a number of rights and obligations. The legal repercussions of seeking a proclamation recognising same-sex marriages go beyond simple legal recognition. Additionally, it would be against both personal and already-existing codified laws. It was stated that the participants in same-sex marriage would not comply with the legal framework, which expressly refers to a biological woman as the wife and a man as the husband.

However, marriages have been redefined over time. As mentioned before, inter-caste marriages were looked down upon, too. There is no recognition of inter-caste marriages under personal laws, but now there is a whole new statute that governs and aids people of different castes to get married and celebrate their love for each other.

Inclusive interpretation of Special Marriage Act

Same-sex marriages can be included in the Special Marriage Act. A marriage between any two people may be solemnised under this Act, as per Section 4 of this Act. Clause (c) of section 4 says that the male must have attained the age of 21 years and the female the age of 18 years. However, in the case of P. Venkatramana versus State (1976), it was held that the contravention of the similar Section 5(iii) of the Hindu Marriage Actdoes not render the marriage void or voidable. This was in regard to the age mentioned, but can also be construed in a way that the fact that the section uses the words “male” and “female” also doesn’t render a marriage void.

Also read: Can the Hindu Marriage Act be interpreted to allow same-sex marriages?

Silence in the Constitution

It is also important to note that nowhere in any statute is it expressly mentioned that same-sex marriages are illegal. The statutes are silent on this matter. “If the statute is quiet and there is no particular ban, then the statute shall be read which [sic] helps the cause of justice,” the Supreme Court stated in State of Goa versus Western Builders (2006). As a result, it was decided in Election Commission of India through Secretary versus Ashok Kumar (2000) by the Supreme Court that “[w]here a statute is silent and judicial intervention is required, courts attempt to address grievances according to what is judged to be principles of justice, equity, and good conscience.”

Nowhere in any statute is it expressly mentioned that same-sex marriages are illegal. The statutes are silent on this matter.

Therefore, the courts must use the principles of justice, equity and good conscience in order to legalise same-sex marriages. Justice would be granted to the community only if same-sex marriages are recognised, and the community can finally have all the fundamental and constitutional rights available to them.

A silver lining

Another recent development in this regard was seen in the case of Deepika Singh versus CAT (2022) wherein the Supreme Court referred to the shifting social realities of the family as a whole. The judgment, authored by current Chief Justice of India Dr. D.Y.Chandrachud, held as follows:

The predominant understanding of the concept of a “family” both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children. This assumption ignores both, the many circumstances which may lead to a change in one‟s familial structure, and the fact that many families do not conform to this expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships.”

Also read: As we observe the fourth anniversary of Navtej Singh Johar on September 6, let us ask: Will the judiciary walk the talk?

This accommodating interpretation by the Supreme Court allows for households made up of guardians and caretakers, LGBT relationships, or unmarried couples. This is significant because not only will these families be eligible for legal protection, but they will also receive social welfare benefits.

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