The concept of ‘intimate association’, encapsulated under Article 19 of the Indian Constitution, is essential for protection of non-heterosexual unions, argues senior advocate Anand Grover on day 4 of the hearings

As the arguments of the petitioners are about to conclude, it is becoming clear that the right sought from the court is a workable interpretation of existing laws so that the right to marriage under the Special Marriage Act and the right to enjoy the consequential benefits are granted to non-heteronormative couples.

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ON day 4 of the hearings of the same-sex marriage petitions, senior advocate Geetha Luthra, for the petitioners, raised the question of 'invisiblisation' of marriage of non-heteronormative couples married outside and returning to India.

Luthra is representing petitioners who are married under Texas law. One of them is a foreigner and the other an Indian citizen.

"If [the marriages] of same-sex and gender non-conforming couples are excluded [from legal recognition] … I as an Indian citizen will have my rights trampled upon… There cannot be [an invisiblisation of] marriage just because we are entering the soils of this country," she argued. 

Luthra submitted that her client has been denied the right to marry in the country in which the person is born. Referring to the various provisions of the Foreign Marriage Act, 1969, Luthra argued that the only reasonable hindrance to the recognition of the petitioner's marriage under the Act is Section 17 (registration of foreign marriages).

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According to Section 17(2), the marriage officer may, for reasons to be recorded in writing, refuse to register a marriage under the Section on the ground that in his opinion the marriage is inconsistent with international law or the comity of nations.

However, in reality, the recognition has been denied because the petitioner married a person of the same sex, Luthra averred. 

Luthra based her arguments on the ground that the Foreign Marriage Act, 1969 is nothing but an extension of the Special Marriage Act, 1954.

Pointing out the term 'comity', Luthra argued that India cannot be lagging behind in terms of constitutional comity as it is a violation of the provision on discrimination under Article 15 (prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth) of the Indian Constitution. She also informed the court that most democratic and progressive countries have already recognised non-heteronormative marriages.  

"My every right flows out of this old institution [marriage] which has been recognised and revered in our country!"

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The Supreme Court Constitution bench headed by Chief Justice of India Dr D.Y. Chandrachud and comprising Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli and P.S. Narasimha continued to hear the batch of petitions in Supriyo@Supriya Chakraborty versus Union of India & Ors, on the limited issue of whether gender-neutral situations can be accommodated under the Special Marriage Act, 1954.

Foreign Marriage Act and its concerns 

Luthra further elaborated that Section 4 (conditions relating to the solemnisation of foreign marriages) of the Act lays down the condition of marriages that may be solemnised in India or before a marriage officer in a foreign country. According to these conditions, one of the parties to the marriage must be a citizen of India, neither party should have a living spouse, or be an idiot or lunatic, and the bridegroom and bride must have completed the age of twenty-one years and eighteen years respectively at the time of marriage and should not be within the degree of prohibited relationship. 

As per Luthra, Section 11 (marriage not to be in contravention of local laws) of the Act clearly states that recognition of marriage must not be in contravention of local laws. She points out that the marriage of the petitioners has been recognised under Texas law. 

She said: "My rights as a citizen cannot be denied just because I am living abroad. Look at the anomaly it creates! I am a married couple abroad. I have a family abroad. I came to India and we became strangers in this country. Just because [India has] not interpreted or given full effect to [the] constitutional and fundamental rights under Part III [of the Constitution]." 

Referring to Ratzenbock and Seydl versus Austria (2017), wherein the legislature made a distinction between two parallel institutions, one recognising heterosexual marriage and another recognising the registered partnership of the heterosexual union, the court declared it to be a violation of equality. The distinction that non-heterosexual union will come under the framework of 'partnership' despite being granted the same gamut of rights was itself found to be discriminatory. 

Interestingly, in Ratzenbock the court left it to both heterosexual couples as well as non-heterosexual couples to decide whether they want to enter into a marriage or a registered partnership.

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Justice Bhat, however, pointed out that the example of Austria may not be relevant because the current petitions are at a more fundamental stage than the mere classification of two categories.

Intimate association

After Luthra, senior advocate Anand Grover argued the concept of intimate association.

Grover is representing two petitioners, one under the Foreign Marriage Act and the other under the Special Marriage Act. He pointed out that the concept of intimate association has been encapsulated under Article 19(1)(a) and 19(1)(c) of the Indian Constitution in terms of free speech and expression and forming association.

Grover referred to the Supreme Court of United States' judgment of Griswold versus Connecticut (1965), wherein the court through Justice William O. Douglas observed: "We deal with a right of privacy older than the Bill of Rights, older than our political parties, older than our school system. Marriage is coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions," to substantiate the concept of intimate association.

This concept of intimate relationship was upheld in Roberts versus U.S. Jaycees (1984). According to Grover, the concept of intimate association is essential to protect the relationship of non-heterosexual union.

Homosexual union a part of our tradition 

Grover averred that the argument of the Union government that homosexual unions did not exist in the subcontinent in antiquity is disproved by a study of history and culture of this region. He pointed out that it has been clearly accepted by the court in National Legal Services Authority versus Union of India (2014) that such relationships did exist during the British period.

He also presented an interesting example where the marriage between a cis-male and a cis-female is valid. During the subsistence of the marriage, if the cis-male assumes a female gender, the law does not say that the marriage becomes void or voidable. 

"It [marriage] is recognised under the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020," Grover submitted. 

He drew attention to the fact that states like Kerala have actually recognised non-heterosexual marriages.

Grover then referred to the works of Pink List India, which has been monitoring issues relating to LGBTQIA++ in the Parliament, to state that no positive response to such issues has been registered in the Parliament in the last five years. Pink List India is one of the country's first archives of politicians supporting LGBTQIA++ rights. 

He concluded that the Union government claims the issue to be an urban elitist one, which is not a correct view. 

"The origins of these people [runaway couples] are [in] small towns. They are not from Kolkata and Delhi. They are from very small towns. They come to the capital city where the high court is because they need protection," he submitted. 

Advocate Jayna Kothari similarly argued that most transgender persons have no option but to run away from their homes because of discrimination. In this context, the right to marry is extremely crucial as they are given a right to raise a family that can provide psychological and economic support. 

Senior advocate Dr Menaka Guruswamy summarised the arguments of the petitioners: "We are not asking for anything special today. We only ask for a workable interpretation of the Special Marriage Act… We [are] only asking for a constitutionally tenable interpretation per Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors [judgment recognising the right to privacy], per Johar [Navtej Singh Johar judgment on the decriminalising homosexuality], pre-Kesavananda, post-Kesavananda and including Kesavananda."

The arguments of the respondents will begin tomorrow.