Union government brackets incest with sexual orientation, asks if it can be claimed as a right on Day 6 of marriage equality hearings

After specific provisions of the Special Marriage Act were referred to by the Union government, the court remarked that considering the suggestions of the petitioners would mean it would likely have to rewrite the legislation, which will have to account for the fact that the legislation makes specific reference to personal laws. 

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ON day 6 of the hearings of the marriage equality marriage petitions, Solicitor General of India Tushar Mehta tried to demonstrate that granting the petitioners prayers would be akin to opening a Pandora's box, perhaps worse, because we wouldn't know the sexual orientation of Pandora.

Mehta began where he had left yesterday, continuing his arguments on the degree of prohibited relationships under the Special Marriage Act, 1954.

The petitioners had last week suggested that to read the degrees of prohibited relationship under the Act for non-heterosexual couples, Part I and Part II of the First Schedule must coalesce. However, Mehta argued that it may not be a permissible interpretation to read the statute differently for different classes of persons.

The Supreme Court Constitution Bench headed by Chief Justice of India (CJI) Dr D.Y. Chandrachud and comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha was hearing 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 in the Special Marriage Act.

'What if they enter into incestuous relationships?'

Mehta made the argument that since the sexual orientation of a person is now a fundamental right as per the Supreme Court's judgment in Navtej Singh Johar versus Union of India (2018), there might be a situation five years later that a person may be attracted to those mentioned among the degrees of prohibited relationships in the Special Marriage Act.

He said, "From the beginning, I am attracted to those persons who are mentioned in the degrees of prohibited relationship. Incest is not uncommon in the world. World over, incest is prohibited. If I am attracted to my sister and if we are consenting adults entering into activities within the privacy … We then claim our right to autonomy, our right of choice and our right of doing something in the private domain … Can someone not challenge this definition [degrees of prohibited relationship]? Who are you to decide with whom I have my sexual orientation (sic)?"

The CJI opined that Mehta's argument that sexual orientation can include incest was far-fetched. He added that considerations like registration of marriage and degrees of prohibited relationship are subject to the regulation of the law.

Provisions of Special Marriage Act that are not reconcilable 

'Full blood'/'half blood'

Further, Mehta argued that Explanation II of Section 2 of the Special Marriage Act, in which the definition of "full blood" and "half blood" is mentioned, can never be reconciled in the context of a lesbian marriage.

He submitted, "We can never reconcile this provision because it says biologically, one man has given birth to a child through a biological woman. [In a] marriage between lesbians, this provision cannot be read because she cannot be a full blood. Even if there is a child through artificial insemination, it would not be a full blood type."

He concluded that merely changing 'man' and 'woman' into 'person' would make many provisions not reconcilable at all.

Minimum marital age

Mehta also listed another issue the court would be faced with if it were to rewrite certain suggestions proposed by the petitioners. One of those is that under Section 4(c) of the Special Marriage Act, different minimum marital ages have been mentioned for males and females. Senior advocate Dr Abhishek Manu Singhvi had suggested that to solve the age-related conundrum, the age of the person should be determined by the gender identity they profess.

Today, Mehta argued that this may be difficult to reconcile because transgender persons are "neither male nor female".

On conditions of marriage 

He further pointed out that according to Section 4(b)(ii), neither party to the marriage must be suffering from a mental disorder to the extent that they become unfit for marriage and for the procreation of children. According to Mehta, the usage of the term 'procreation' indicates that the legislation only recognises conventional marriage.

The CJI replied, "The emphasis on this provision is not on procreation but mental illness … In the case of a heterosexual couple, the fact that one of the spouses cannot procreate does not render the marriage invalid."

Section 11 (declaration by parties and witnesses) of the Act, read with the Second and Third Schedules of the Act, provides for the declaration of marriage under the Act. According to Mehta, the Second and Third Schedules use gendered terms.

Further, Mehta pointed out that under the earlier version of the Special Marriage Act, if a person married under the legislation, they had to renounce their religion.

Section 19 (effect of marriage on member of undivided family) of the present Act was added to that effect. According to Section 19, a marriage solemnised under the Act of any member of an undivided Hindu, Buddhist, Sikh or Jain family shall be deemed to effect the member's severance from such family. However, Muslim, Christian and Parsi personal laws continue to apply to those married under the Act.

On the intersection of personal laws 

Section 21A (special provisions in certain cases), which was added to the Act in 1976, lifts the disability created by Section 19 where the marriage is solemnised under the Act of any person who professes the Hindu, Buddhist, Sikh or Jain religion with another person who professes the Hindu, Buddhist, Sikh or Jain religion.

Both sides have argued on who Section 21A would be applied to in the case of non-heterosexual marriages. Advocate Arundhati Katju argued that the provision should be applied the way it has been applied in the case of heterosexual marriages. Mehta, however, argued that the court has no choice when it comes to personal laws as their application is interwoven when it comes to Section 21A.

Today, the CJI clarified that the application of Section 19 is in the context of the severance of coparcenary rights, but the other aspect of the rights thereunder are still governed by personal laws.

On grounds of divorce 

Mehta referred to Section 27(1A) (divorce), wherein the wife can avail of certain additional grounds of divorce, which is when the husband, after the solemnisation of marriage, is guilty of rape, sodomy or bestiality.

Mehta remarked, "Who will be the wife in man-man, wife-wife marriage, man-transgender, woman-transgender marriage or transgender-transgender marriage?"

He further pointed out that petitions for seeking conjugal rights, judicial separation and divorce are to be filed in the district court. Section 31(1)(iiia) (court to which petition should be made) gives a specific right to the wife to file a petition at the place where she resides on the date of presentation of the petition. Mehta added, "In case of gay marriage, who will be the wife? In the case of lesbian marriage, who will be the wife? … Across the country [these questions] will arise."

On the grounds of alimony 

Mehta also referred to Section 36 (alimony pendente lite), which allows the wife to seek alimony pendente lite on the grounds that she has no independent income sufficient for her support and the necessary expenses of proceedings under Chapters V and VI of the Act.

He argued that the "Right of a non-LGBTQI wife will be taken away because then the husband can also claim alimony from her."

To this, Justice Kohli said, "That is happening in heterosexual marriages too!"

Mehta clarified that the right is limited to the wife when she has established that she has no independent source of income. He added, "First of all, there cannot be any decision by the court on who is the wife in a same-sex relationship."

He explained that in a same-sex relationship, one of the partners can claim the role of a wife.

On grounds of succession

Mehta also referred to the Hindu Succession Act, 1956 and the Indian Succession Act, 1925, which grant certain rights, including that of property, to the widow. He remarked that in non-heterosexual marriages, it would be difficult to determine who the widow is or would be.

Mehta also made a reference to Section 6 (natural guardians of a Hindu minor) of the Hindu Minority and Guardianship Act, 1956. According to this section, the natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding their undivided interest in the joint family property) is the father in case of a boy or an unmarried girl. In the case of an illegitimate boy or an illegitimate unmarried girl, it is the mother, and after her, the father.

Mehta averred that the legislative intent is clearly to recognise a conventional man and a conventional woman for the purpose of marriage.

On prohibition of domestic violence 

Further, Mehta referred to Section 2(a) of Protection of Women from Domestic Violence Act 2005, which defines "aggrieved person" as a woman. Moreover, he said that Section 10 of the Indian Penal Code, 1860 (IPC) specifically defines "man" and "woman". A reference was also made to Section 304B of the IPC, which defines dowry deaths specifically in the context of female victims.

Justice Bhat remarked that even Section 376 of the IPC, which defines the offence of rape, will not apply to same-sex couples. As per the IPC, only a man can commit rape.

On arrest-related provisions 

Mehta also pointed out that under the Code of Criminal Procedure, 1973, Section 46 (arrest how made) lays down a different procedure in case the arrest of a woman is to be made. According to Section 46(4), only in exceptional circumstances can a woman be arrested after sunset.

He told the court that it would be difficult to apply this provision in cases of gay marriage, even if one of the partners plays the role of a woman.

The Bench, after hearing all these arguments, through the CJI, remarked if the court were to make an effort to conceptualise the suggestions of the petitioners, it would be faced with three major problems.

"First, it will involve substantial re-writing of the provisions. Two, it may involve the court ignoring some provisions which have been introduced as a matter of public policy (as such the additional grounds provided to women). Third, it would involve re-interpretation of the personal laws because there are segments of the Special Marriage Act that give reference to personal laws."

Mehta referred to the landmark judgment on statutory interpretation by the British House of Lords in Ghaidan versus Godin-Mendoza (2004) in which it was held that in the process of statutory interpretation, the court cannot interpret contrary to the legislative intent.

Marriage versus association

Mehta told the court that the right to love, cohabitate, choose one's partner, and sexual orientation is a fundamental right. At the same time, he added, "But there is no fundamental right to seek [legal] recognition of that relationship as marriage or by any other name [as in the right to be recognised as an institution]."

The CJI pointed out that the recognition has to be understood in terms of legal recognition because there is no bar to conducting a marriage ceremony under any law.

To this, Mehta told the court, "In Gujarat, one lady married herself. I do not know how."

Justice Narasimha simply remarked, "How profound!"

The CJI then addressed Mehta's statement that there is no right to recognise marriage, saying, "Once you recognise there is a [fundamental] right to cohabit … then to say you cannot seek any legal recognition at all [cannot be the case] … there is a corresponding duty on the State to at least recognise that all incidentals of social cohabitation must find recognition in the law."

Justice Bhat also said that if the State does not want to call non-heterosexual unions marriage, some label is still necessary.

The CJI gave the example of a non-heterosexual couple, wherein one partner has adopted a child who is then sent to school. He continued, "Does the government want a situation where the child is essentially treated as a single-parent child?" He meant that the child must have the benefit of recognition as the ward of a married couple.

Mehta replied that the rearing of a child by non-heterosexual couples is a "psychological problem". He said, "There are studies which show that a single parent growth child is different and better than the child who does not see mother and father both. This is, either two men or two women."

Neither the CJI nor the rest of the Bench agreed with this.

Justice Narasimha added that the recognition of the union of non-heterosexual couples does not have to necessarily mean marriage. It could mean an association which should entitle them to benefits.

The CJI also added that long cohabitation often raises the presumption of marriage.

Justice Kaul remarked that the decriminalisation of homosexuality indirectly meant that certain recognition must prevail. He asked if different ministries of the government have gone through any thought process over the last five years to determine how the interests of non-heteronormative couples are to prevail.

Mehta replied that decriminalisation did not lead to the accrual of any status. Justice Kaul clarified that the decriminalisation of homosexuality recognises the existence of a situation wherein non-heterosexual people would want to cohabit.

Lastly, Mehta added that Article 14 (equality before law) of the Constitution cannot be applied in the instant case because the Special Marriage Act is only meant for heterosexual couples and the object it sought to achieve is inter-caste marriage. So, there is no question of non-heterosexual marriage at all, he submitted.