Petitions on recognition of marriage equality to be heard by five-judge bench

The court has held the matter of “constitutional importance” and a five-judge bench will hear it from April 18. The petitioners have also raised a request to live stream the matter as it concerns  the larger interest of society, especially the LGBTQI community.

TODAY, in Supriyo@Supriya Chakraborthy versus UOI & Anr, a three-judge bench comprising Chief Justice of India (CJI) Dr. D.Y. Chandrachud and Justices P.S. Narasimha and J.B. Pardiwala referred a batch of petitions on recognition of marriage equality to a Constitution bench of five judges.

The matter raises questions of seminal importance, the court said.

The Supreme Court bench led by the CJI had transferred all the pending petitions related to the matter to itself on January 6 this year.

Yesterday, the Union government filed an affidavit opposing recognition of marriage equality.

At the outset, the Union government today stated that giving formal recognition to marriage equality will make legislations governing marriage and other related civil rights obtuse.

Legislations that the Union government says would be affected if marriage equality is recognised have been listed as follows:

Legislations  Sections 
Hindu Marriage Act, 1955 Section 3(g): Degree of prohibited relation

Section 5: Characteristics for a Hindu Marriage

Section 7: Ceremonies of a Hindu Marriage

Section 8: Registration of Hindu marriages

Section 9: Restitution of conjugal right

Section 12: Voidable marriages

Section 13: Divorce

Section 17: Punishment of bigamy

Section 18: Punishment for contravention of certain other conditions for a Hindu marriage

Section 19: Court to which petition shall be presented.

Section 24: Maintenance pendente lite and expenses of proceedings

Section 25: Permanent alimony and maintenance.

Section 27: Disposal of property

Special Marriage Act, 1954. Section 2(b): Degrees of prohibited relationship

Section 4: Conditions relating to solemnization of special marriages.

Section 12: Place and form of solemnisation

Section 15: Registration of marriages celebrated in other forms

Section 22: Restitution of conjugal rights

Section 23: Judicial separation

Section 27- Divorce

Section 31- Court to which petition should be made

Section 36-Alimony pendente lite

Section 37- Permanent alimony and maintenance

The Uttar Pradesh Hindu Marriage (Registration) Rules, 1973 Rule 4: Registration of marriages
Indian Penal Code, 1860 Section 376B: Sexual intercourse by husband upon his wife during separation

Section 498: Enticing or taking away or detaining with criminal intent a married woman

Section 498A: Husband or relative of husband of a woman subjecting her to cruelty

Section 304B: Dowry death

Muslim Personal Law (Shariat) Application Act, 1937 Section 2: Application of personal law to Muslims
Muslim Women (Protection of Rights on Divorce) Act, 1986. Section 2: Definitions

Section 3: Mahr or other properties of Muslim woman to be given to her at the time of divorce.

Section 4: Order for payment of maintenance.

Indian Evidence Act, 1872 Section 113A: Presumption as to abetment of suicide by a married woman

Section 113B: Presumption as to dowry death

Dowry Prohibition Act, 1961 Section 6: Dowry to be for the benefit of the wife or heirs
The Code of Criminal Procedure, 1973 Section 125: Order for maintenance of wives, children and parents
Domestic Violence Act, 2005 Section 2(a): Definitions: “aggrieved person”

Section 3: Definition of domestic violence

Section 17: Right to reside in a shared household

Section 19: Residence orders

Pleading for live streaming of the proceedings, the petitioners told the court that access to justice is a part of Article 21 and many interested parties would want to know what is happening in the court. Moreover, the issue is of constitutional importance, senior advocate Neeraj Kishan Kaul argued in front of the bench.

Kaul relied on the Navtej Singh Johar & Ors versus UOI (2018) judgment and told the bench that in that case the court had clearly declared that wide media coverage was important in light of the historical discrimination faced by the transgender community.

Solicitor General of India (SGI) Tushar Mehta submitted that the court must hear all the parties to the matter as this judgment is going to affect the country as a whole. The Union government has opposed live streaming on the grounds that it may involve sharp ideological schisms”.

A recap of the petitions on marriage equality 

One of the petitions before the Supreme Court was filed by a gay married couple, Sameer Samudra (an Indian citizen) and Amit Gokhale (who is a citizen of the United States of America). The couple got married on September 18, 2010, but were denied registration of their marriage under the Hindu Marriage Act, 1955 and the Foreign Marriage Act, 1969 by the Registrar of Marriages.

On January 30, the Delhi High Court division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad transferred the pending petitions to the Supreme Court, including the one filed in Abhijit Iyer Mitra & Ors versus Union of India.

During the hearing, the SGI, presenting the Union government’s stand, stated that there is a misconception related to the Supreme Court’s Navtej Singh Johar’s judgment.

He argued that Navtej Singh Johar’s judgment only decriminalised homosexuality and had nothing to do with recognition of marriage equality. To this, senior advocate Saurabh Kirpal, representing one of the petitioners, told the court that even though the 2018 judgment does not expressly allows marriage equality, the inevitable implication in the Constitutional matter favours recognising it. This is how Constitutional jurisprudence works, he averred.

The Union government had filed an affidavit before the Delhi High Court in February 2021, in which it sought the dismissal of all petitions filed before the high court.

The affidavit read: “Seeking declaration for solemnisation/registration of marriage has more ramifications than simple legal recognition. Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender.”

The Union government’s affidavit stated that despite statutory recognition of the relationship of marriage between a biological man and a biological woman, marriage necessarily depends upon age-old customs, rituals, practices and cultural ethos and societal values.

Union government’s affidavit 

Union government’s first ground to oppose marriage equality is that marriage ‘necessarily and inevitably’ presupposes a union between two persons of the opposite sex.

According to the government, it is impermissible for the court to change the entire legislative policy of the country which is deeply embedded in religious and societal norms. It is because the sacred institution of marriage in personal laws has been envisaged as between a biological male and a biological female.

The affidavit reads: “It is submitted that as pointed out hereinabove “marriage” is essentially a socially recognised union of two individuals which is governed either by uncodified personal laws or codified statutory laws. The acceptance of the institution of marriage between two individuals of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws.”

This definition is socially, culturally, and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretations, the affidavit argues.

Legislature has the wisdom to recognise any deviation 

Further, the government’s affidavit states that issues concerning personal relationships such as marriage, divorce and adoption are either governed by codified law or personal law. This means that only a competent legislature, reflecting the collective wisdom of the nation, has the legislative wisdom to enact a law which would govern human relationships in the context of societal values.

“It is submitted that this particular human relationship, in its present form, i.e., between a biological man and a biological woman, is accepted statutorily, religiously and socially. Any recognised deviation of this human relationship can occur only before the competent legislature,” the affidavit reads.

“…[S]uch relationships can be governed, regulated, permitted or proscribed only by a law made by a competent legislature. It is a competent legislature which alone reflects the collective wisdom of the nation, which, based upon cultural ethos, social standards and such other factors defining acceptable human behavior, regulates, permits or prohibits human relations,” the affidavit reads.

Marriage cannot be regulated merely within the domain of privacy 

According to the Union government’s affidavit, marriage between two private individuals may have a profound impact on their private life, but the same cannot be regulated within the domain of privacy so far as its formal recognition and the legal consequences that flow from it are concerned.

Entering into a marriage has public significance and marriage as a public concept is nationally and internationally recognised as a public recognition of a relationship with which several statutory and other rights and obligations are attached.

As per the affidavit, marriage as an institution has an important role in the rearing of children and their mental and psychological upbringing also.

Moreover, the recognition of marriage necessarily brings with it the right to adopt and other ancillary rights.

In this context, the affidavit states: “It is therefore necessary that such issues are left for being decided by the competent legislature where the social, psychological and other impacts on society, children etc., can be debated. This will ensure that wide-ranging ramifications of recognising such sacred relationships are debated from every angle and legitimate state interest can be considered by the legislature.”

They relied on paragraph 167 of Navtej Singh Johar and stated that the fundamental right to marriage of same-sex couples cannot be claimed based on the judgment. It is because the judgment does not extend privacy to include a fundamental right in the nature of the right to marry by two individuals of the same gender.

The concerned paragraph states: “The above authorities capture the essence of the right to privacy. There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union…”

Denial of legal recognition does not violate fundamental rights 

As per the Union government affidavit, same-sex relationships and heterosexual relationships are two distinct classes and they cannot be treated identically. There is an application of intelligible differentia which distinguishes heterosexual couples from homosexual couples on the basis of the object which is ensuring social stability through the recognition of marriage.

Seeking legal recognition has ramifications 

The affidavit further states that parties entering into marriage create an institution having its own public significance as it is a social institution from which several rights and liabilities flow. Thus, living together as partners and having sexual relationships with same-sex individuals is not comparable with the Indian family unit concept of a husband, wife and children.

This relationship necessarily presupposes a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two — who are reared by the biological man as a father and the biological woman as mother, the affidavit argues.

Moreover, the registration of marriage equality results in violation of existing personal laws as well as codified laws concerning provisions such as ‘degrees of prohibition relationship’, ‘conditions of marriage’ and ‘ceremonial and ritual requirements’ under personal laws governing the individual, the affidavit avers.

It also argues that the recognition of marriage equality will affect the issue of adoption, guardianship, restitution of conjugal rights, alimony and maintenance, to name a few.

Thus, the statutory recognition of marriage is limited to being heterosexual in nature, the affidavit states, and it has been the norm throughout history and is foundational to both the existence and continuance of the State. The state has a compelling interest in granting recognition to heterosexual marriage only to the exclusion of other forms of marriage, the Union government submitted through the affidavit.

The three-judge bench has referred the case to the Constitutional bench. It has also taken note of the petition filed before the Delhi High Court on live streaming the proceedings concerning this matter.

The Leaflet