New Delhi: A constitution bench headed by Chief Justice (CJI) DY Chandrachud will on Tuesday begin hearing a batch of petitions seeking legal recognition of same-sex marriages. The other members of the bench are Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli.
A three-judge bench headed by the CJI had on March 13 referred these petitions to a constitution bench, noting that the petitions involved “interplay between constitutional rights and specific legislative enactments”, including the Special Marriage Act, 1954 .
The reference was made in pursuance of Article 145(3) of the Constitution, which stipulates that petitions raising substantial questions of law relating to the interpretation of the Constitution must be heard by at least five judges.
The order was passed overruling the Centre’s objection to the prayers made in the petitions, in which the government insisted that only Parliament can legislate on the issue of same-sex marriage.
On 25 November 2022, the Supreme Court took note of two petitions before it which centered around the constitutionality of the Special Marriage Act, 1954 (SMA).
The petitions, filed by two same-sex couples, have called the SMA discriminatory, as it only recognizes marriage between a man and a woman. It denies marital benefits — such as adoption, surrogacy and retirement benefits — to same-sex couples, the petitioners contend.
While the SC decided to hear two pleas, eight similar pleas were already pending in the Delhi High Court and one each in the Kerala and Gujarat High Courts.
Abhijit Iyer Mitra, a senior research fellow at the Institute of Peace and Conflict Studies, was the first to raise the issue in the Delhi High Court in November 2020.
Thereafter, seven more were filed in the court over the next two years, until the petitions were transferred to the Supreme Court on 23 January 2023.
Taking note of the petitions filed before various High Courts, on 6 January 2023, a bench led by CJI Chandrachud directed that all cases related to same-sex marriage be transferred to the Supreme Court.
ThePrint takes a look at the arguments raised by the petitioners, the Centre’s objection, the stand taken by religious institutions and the concerns expressed by the two child rights statutory bodies, which also seek a hearing by the Supreme Court.
Read also: ‘No reason to hold them back’ – how the courts have become a supportive system for gay couples
case of the petitioners
The first petition regarding same-sex marriage was filed by Abhijit Iyer Mitra in November 2020, nearly two years after the Supreme Court read down Section 377 of the Indian Penal Code (IPC) to legalize homosexuality in India.
The Navtej Johar judgment in 2018 struck down a Victorian-era law that criminalized same-sex relationships and punished homosexuality.
Iyer Mitra’s petition and others that were filed over the past two years have sought recognition of same-sex marriages under community-specific laws, particularly the Hindu Marriage Act (HMA), which covers Buddhist, Sikh, Jain and Followed by all sects. Of Hindutva.
It is argued that the HMA does not, in its wording, distinguish between heterosexual and homosexual marriages. According to section 5 of the HMA, a marriage can be “concerned between any two Hindus”. Section 5 lists the conditions for marriage.
Some of the petitions have also asked for registration of same-sex marriages under the SMA, which is a secular law.
Although section 4 talks about “marriage between any two persons”, sub-section ‘c’ of the same provision deals with the minimum age of man and woman to be eligible for marriage. Section 4C states that a man must be 21 years old and a woman must be 18 years old to marry.
The Foreign Marriage Act (FMA) of 1969 is also controversial for the same reasons as stated for SMA. The petitioners who have questioned the constitutional validity of this law have objected to the use of the words “bride” and “bride”, stating that the two words limit the law’s application to heterosexual marriages.
The petitioners have submitted that the HMA, SMA and FMA in their present form violate the fundamental right of an individual against discrimination, which is guaranteed to him under Articles 14 and 15.
He said the law violates freedom of expression as well as the right to privacy, which was declared a fundamental right after the Puttaswamy judgment in 2018.
They have asked the court to either strike down the “discriminatory” provisions or interpret them in a way that includes same-sex couples.
The requirement of notices and objections in the SMA and FMA has also been challenged. In two marriage laws, a notice is issued inviting objections to the application of the couple to marry.
Same-Sex Marriage Elitist Viewpoint: Center
The BJP-led central government, through three separate affidavits, has opposed the petitions saying same-sex marriage cannot be legalised.
Calling it an elitist approach, the Center in its latest submission to the court has questioned the maintainability of the petitions.
The Centre’s first affidavit in the Delhi High Court in February 2021 said marriage is only between a man and a woman, and interference with the current marriage laws would “wreak havoc” in society.
In its affidavit before the apex court filed in March this year, the Center said the petitioners cannot claim a fundamental right to same-sex marriages, adding that the Center was not opposed to same-sex relationships.
The Center said, as per the “legislative understanding of marriage in the Indian statutory and personal law regime”, a marriage refers only to a marriage between a biological male and a biological female. Urging the court to let Parliament decide on the issue, the Center insisted that any “recognised deviation… can only be before the competent legislature”.
The Centre’s third response, filed on Sunday, said the petitions represent “only urban elitist views aimed at social acceptance” and that the legislature would have to consider a wider range of views.
The present definition of marriage is a social agreement, and by approving that form the legislature is merely discharging its duty of following the will of the people.
“This clear democratic wish should not be negated by a judicial order,” a Center said that any change in the definition of marriage will have to include the voices of all to consider wider views Its inevitable impact on rural, semi-rural and urban populations, views of religious sects taking into account personal laws, as well as customs governing the field of marriage, as well as many other statutes.
Organizations oppose petitions
Some organisations, including religious bodies, have joined the Center in opposing the registration of same-sex marriages.
The first such intervention application was filed in the Delhi High Court in December 2021 by the NGO Seva Nyay Utthan Foundation, a Delhi-based non-profit organization that claims to work for social inclusion and protection of the “vulnerable”. .
This application has been transferred to the apex court along with the petitions.
The application states that same-sex marriage should not be permitted under the HMA, as – in Hinduism – only a marriage between a man and a woman is permitted.
The NGO submitted, “Marriages in societies such as the Hindus are very much a part of their religion and are linked to their divine institutions as well as religious texts and thus hold significant emotional value.”
An intervention application filed by the Varanasi-based Akhil Bhartiya Sant Samiti (ABSS) makes a similar plea before the apex court. Marriage, according to Hindu law, is a “sacred” Secrament (rites)” and not a contract like the Muslim side, it said.
The ABSS petition claimed that the body is an organization of 127 sects.eternal religion”, which is working for the welfare and upliftment of “eternal Culture, Vedic development and social uplift”.
Meanwhile, the Muslim organization Jamiat Ulema-e-Hind One application called same-sex marriage an “assault on the family system”. Jamiat Ulama-i-Hind is one of the leading organizations of Islamic scholarship belonging to the Deobandi school of thought.
The petitions “are in complete violation of the established understanding of the concept of marriage in all personal laws – between a biological man and a biological woman – and thus uproot the very basic, i.e., structure of a family unit prevailing in the family structure”. intends to lift the personal law system”, it argued.
Calling same-sex marriage “an exclusively Western concept”, the Telangana Markazi Shia Ulema Council – which claims to be a religious and spiritual organization – has said it is “unsuitable for India’s social fabric”.
Gay marriage, it has been said, is in the teeth of the prohibition of the Islamic faith. The court cited some research to tell the court that children raised by same-sex couples lag behind children raised by heterosexual couples.
Telangana Markazi Shia Ulema Council is an organization whose main aims and objectives include dissemination of spiritual teachings, the body told the court.
Child rights bodies at odds with each other
Meanwhile, two statutory child-rights bodies have expressed opposite views on the issue of same-sex marriage.
In its intervention application, the National Commission for Protection of Child Rights (NCPCR), a central government body, has opposed the plea on the ground that adoption by same-sex parents amounts to “endangering children”.
Studies show that such a child is affected both socially and psychologically.
It states that gay parents may have limited exposure to traditional gender role models. Hence, the exposure of the children would be limited and their overall personality development would be affected, the commission has said.
In contrast, the Delhi Commission for Protection of Child Rights (DCPCR), under the Delhi government, has supported same-sex marriages as well as adoption by gay couples.
It states that there is no empirical data to suggest that same-sex couples are unfit to be parents, or that psychosocial development among children of same-sex couples is compromised.
(Editing by Sunanda Ranjan)