Do same sex couples have the right to marry?

As the Delhi High Court deliberates upon the question of validity of homosexual marriages in Indian law, BIPASHA KUNDU explains, by looking at the Indian judiciary's vast jurisprudence on the matter, that the denial of the right to marry to homosexual people would be in abrogation of their fundamental rights under Articles 14, 15, 19 and 21 of the Constitution.

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IN 2018, the Supreme Court decriminalized homosexuality as an offence vide its pronouncements in Navtej Singh Johar vs. Union of India (2018). The Court read down provisions of Section 377 (unnatural offences) of the Indian Penal Code and thus legitimized same-sex relationships, but on one crucial aspect, the judgment remained silent.

The question of the validity of homosexual marriages is currently being considered by the Delhi High Court in the matter of Abhijeet Iyer Mitra vs. Union of India. The Centre has argued that marriage under the Special Marriage Act, 1954 is only permissible between a biological man and a biological woman. It further contended that there is a "legitimate State interest" in limiting recognition of marriage to persons of the opposite sex only as the concept of marriage, according to the Centre, is not solely relegated to the domain of privacy of an individual. However, in case the right to marry homosexual individuals is refused, it would have numerous repercussions on their fundamental rights.
Also read: Why Same-Sex Marriages Must be Judged at the Constitutional Altar

Right to marry

Even though the Right to Marry the person of one's choice is not categorically mentioned in the Constitution, the Indian Judiciary has recognized and upheld this right through various judgments. One such instance has been the Supreme Court's judgment in Lata Singh vs. State of U.P. (2006). In that case, the woman had married a man belonging to a different caste than her. The Supreme Court held that since the woman was a major (above 18 years of age), she had the freedom to choose whomever she wanted to marry.

In Re: Indian Woman says gang-raped on orders of Village Court published in Business & Financial News dated 23.01.2014 (2014) was another landmark judgment in which the Supreme Court included the "freedom of choice in marriage" within Article 21 of the Indian Constitution. In this case, the victim was a tribal woman who had married a man from a different community. The incident took a horrifying course when a village forum for dispute resolution called Salishi Sabha decided to punish her by ordering her to pay a hefty sum of Rs. 50,000 as a fine, when she could not, the Sabha ordered men to gang-rape her. The Court held the involved men liable for the offence of rape.

In Shakti Vahini vs. Union of India (2018), the Supreme Court categorically held that the decision of two adult individuals to marry each other is an example of their exercising the freedom given to them under Articles 19 and Article 21 of the Constitution. In Shafin Jahan vs. K.M. Asokan (2018) (popularly known as the "Hadiya case"), a Hindu girl had converted to Islam without any undue influence or coercion, and later married a Muslim man. Her father filed a suit for annulment of their marriage. The Supreme Court restored their marriage, which had been annulled by the lower court, and recognized that she had the choice of marrying the person of her choice. This judgment relied upon Justice K.S. Puttaswamy (Retd) vs. Union of India (2018), which recognized the right of an individual to marry an individual of one's choice as a part of Article 21 of the Indian Constitution. Justice Chandrachud, in the Puttuswamy judgement, had observed that the judiciary should go beyond sexual orientation and discuss the wider topic of sexuality which includes cohabitation and marriage.

In the cases discussed above, the Supreme Court repeatedly recognized the right to marry an individual of one's own choice as being part of one's Fundamental Rights under Article 21. Even though courts haven't made such an observation in the specific context of same-sex couples, the proceedings before the Delhi High Court offers an opportunity for the judiciary to rise to the occasion and clarify that the fundamental right to freedom to marry extends to same-sex couples.

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

Constitutional validity

Article 14 states that "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth." Article 15 prohibits discrimination on five grounds, namely "religion, race, caste, sex, or place of birth." Gender is not mentioned explicitly as one of the grounds.

It is to be noted that 'gender' and 'sex' are two different concepts. Whereas 'sex' is more of a biological/medical concept, and it is the classification of human beings into different groups based on characteristics such as type of chromosomes, hormones, genitalia, and other secondary sexual characteristics; in contrast, 'gender' refers to one's own perception of self, their emotions, psychology, and what they personally identify themselves as. In National Legal Services Authority vs. Union of India (2014), the Supreme Court widened the ambit of 'sex' as under Article 15 of the Indian Constitution to include 'gender' as well. If same-sex marriages are not given legal recognition, then such discrimination will solely be based on the gender of the individuals and hence in direct contravention of Article 15. In my opinion, barring Homosexual Marriages or not giving recognition to them will be in contravention to Article 15.
Also read: LGBTQ+: Petition for marriage equality filed in Kerala High Court

 Cis-Trans Marriages

The Centre has, in its affidavit filed before the Delhi High Court, stated that -"The acceptance of the institution of marriage between two individuals of the same gender is neither recognized nor accepted in any uncodified personal laws or any codified statutory laws." However, the validity of cis-trans marriages vis-à-vis the Hindu Marriage Act, 1955 has been deliberated upon by the Indian Judiciary.

Recently, in Arunkumar vs. The Inspector General of Registration (2019), the Madras High Court dealt with the question of the validity of a Cis-Trans Marriage (a marriage solemnized between a Cisgender individual and a Transgender individual) as per the Hindu Marriage Act. The Court analysed this multi-faceted issue and held that the marriage is valid as per the law.

In this case, a man named Arunkumar got married to a transgender woman and sought to register their marriage under the Hindu Marriage Act. The relevant authorities, who were the Respondents in the case, justified the refusal to register Arunkumar and Srija's marriage by arguing that the term "bride" as per the Hindu Marriage Act will only include a "woman." The respondents, by the term 'woman', meant 'cis-gendered women' exclusively, refusing to consider transgender women within the purview of the term.

The High Court, rejecting the argument of the respondents, recognized the Right to Self Determination of Gender as laid down in National Legal Services Authority. The Court further clarified that the meaning of "bride" as per Section 5 of the Hindu Marriage Act could not be interpreted in a manner that lacks necessary changes or is unable to be changed. The Court essentially based its reasoning on the Self-Determination of Gender Identity Model. It held that the meaning of the term 'bride' would comprise not only cis-gendered women but also included transgender women and intersex individuals who identify themselves as a "woman."

Hence, being cis-gendered is not a mandatory condition that needs to be fulfilled in order to qualify as a "bride" as per section 5 of the Hindu Marriage Act.

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

The question of whether recognizing cis-trans marriage goes against the tenets of Hindu Law is to be considered. If it does go against the tenets, then it will weaken the case for the inclusion of such marriages in spite of the prima facie violation of the fundamental rights of transgender individuals because it has been held in State of Bombay vs. Narasu Appa Mali (1951) by the Bombay High Court that Personal Laws cannot be evaluated on the basis of Fundamental Rights provided in Part III of the Constitution.

The Madras High Court, in Arunkumar, discussed several mythological tales of the Hindu religion involving interaction with the transgender community.

Firstly, the court discussed the story of Aravan (also spelled as Iravan), who was the son of Pandava prince Arjuna and the Naga (serpent) princess Ulupi. The story is based on the oral traditions of the people of the northern part of the state of Tamil Nadu. When the Mahabharata war was in progress, Aravan was required to sacrifice his life for the sake of the Pandavas' victory. He was given three wishes. As the last wish, Aravan wanted to be married so that his wife could lament his death the next day and perform the requisite funerary practices. No woman was willing to marry him because of his pre-determined fate. At this juncture, Lord Krishna turned himself into a woman named Mohini and married Aravan. The next day, after Aravan was sacrificed, she performed the requisite funerary rites and customs as per the wishes of Aravan. According to oral traditions, Aravan is the symbolic husband of men who have feminine feelings and emotions.

Secondly, the Court discussed the mythological story of Shikhandi. Shikhandi was born as a female and was the elder sister of Draupadi. In order to participate in the Mahabharata war and fulfill her vow of revenge against Bhishma, she performed penance and turned into a man (only men were allowed to participate in the war).

Thirdly, the Court discussed the story of the Pandavas' Agyaat Vasa. As per the legends, when the Pandavas lost everything in gambling, they had to live in exile for 13 years, and in the last year of the period of exile, they had to change their identity so that no one could recognize who they actually were. Pandava prince Arjun turned into Brihannala for the period. According to the mythological tale, Brihannala was a eunuch.

Fourthly, the Court pointed out the story of Lord Ayappa, who was born due to the union of Lord Shiva and Lord Vishnu (in the form of Mohini).

Finally, the Court pointed out the incident in Ramayana where Lord Rama is said to have blessed the transgender community.

After deliberating on the issue, the Court concluded that allowing cis-trans marriage would not go against the tenets of Hinduism.
Also read: A Spectrum of Pride: Recognising Same-Sex Marriage in India

Even though homosexuality has been decriminalized in Navtej Singh Johar, unless civil rights like marriage and adoption are recognized by the Court, the right to be with a person of one's choice is rendered meaningless. As discussed above, it contravenes a homosexual individual's right to equality and the right to marry the person of his/her choice.

One of the major arguments against legalizing homosexual marriages is that it is not a part of the country's culture; however, as seen in Arunkumar, homosexuality is not unknown as far as Indian culture is concerned. Also, culture is not a static concept, and more importantly, cannot be used to adversely affect the rights of any individual.

Since there is no express bar on homosexual marriages as per the laws governing marriage and divorce, the present case is an opportunity to give due recognition to such marriages, like the way in which cis-trans marriages were given recognition in Arunkumar under the Hindu Marriage Act.

(Bipasha Kundu is a second year undergraduate student of law at the W.B. National University of Juridical Sciences, Kolkata. The views expressed are personal.)