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Analysis of Same-Sex Marriage Judgement

Marriage is considered a sacred institution in India, as it provides legal recognition to two couples that they are partners to each other. Marriage can be registered through various Acts such as:
  1. The Hindu Marriage Act
  2. The Special Marriage Act and
  3. The Christian Marriage Act
However, these Acts govern the marriage of only heterosexual couples(a male and a female) in India. It means homosexual couples or LGBTQIA+ were excluded from the purview of these Acts. The sad part is that they are citizens of India and despite being citizens they are deprived of marital rights.

What does the term LGBTQIA+ mean?

First, we must understand the meaning of the umbrella term LGBTQIA+. The letter 'L' stands for Lesbian i.e., when two girls are sexually attracted to each other. The letter 'G' stands for Gay i.e., when two boys are sexually attracted to each other. Generally, the word gay is used for a person (either boy or girl) who is sexually attracted to the same sex.

So, the word gay is a gender-neutral word. The letter 'B' stands for Bisexual i.e., when a person of any gender is sexually attracted to both genders. The letter 'T' stands for Transgender i.e., the person who identifies himself or herself with the sex opposite to the one they were born with. Transgenders have no relation with sexual preferences or orientations.

The letter 'Q' stands for Queer i.e., those people whose sexual identity goes beyond the heteronormative and what is accepted by society. It is not a separate category. It is just a general representation. The letter 'I' stands for Intersex i.e., these are the people who are born with the genital organs of both sexes. The letter 'A' stands for Asexual i.e., those people who have no sexual attraction towards others. They are uncomfortable with sexual contact with anyone. The plus + indicates other combinations.

Latest Supreme Court Verdict on Same-Sex Marriage "Supriyo v. Union of India" 4 A five-judge Constitutional bench of the Supreme Court consisting of Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravinder Bhat, Justice Hima Kohli, and Justice P.S. Narasimha ruled against legalizing same-sex marriage in India. The bench ruled in a 3:2 verdict. The majority opinion was delivered by Justice Bhat, Justice Kohli, and Justice Narasimha. However, CJI Chandrachud and Justice SK Kaul give a dissenting opinion.

Before analyzing the same-sex marriage judgment, first, we must understand the evolution of LGBTQIA+ rights in India.

Homosexuality is a Crime or not?

In 2001, Naz Foundation (India ) Trust, An NGO, filed a lawsuit in the Delhi High Court, seeking the legalization of homosexual intercourse under section 377 5 of the IPC between consenting adults. In 2002, Naz Foundation filed a Public Interest Litigation to challenge section 377 in the Delhi High Court on the ground that there is a big section of society whose rights are being violated and being treated differently.

Also, consenting adults who are in homosexual relationships are being declared criminals. As a result, they are being exploited by police officers and society in many places. In 2003, the Delhi High Court refused to consider a petition regarding the legality of the law and said the petitioners had no locus standi in the matter.

In 2006 Human Rights Watch published a report that section 377 was to harass HIV / AIDS prevention activists, as well as sex workers, men who have sex with men, and other LGBT groups.

Finally, in 2009, the Delhi High Court decreed the Naz Foundation v. Government of NCT Delhi 6 . The court partially decriminalized section 377 of the IPC and declared that it is a direct violation of the fundamental rights of Articles 14 7 and 21 8 . Same-sex adults having consensual sexual relationships are constitutionally protected under personal liberty under Article 21. In 2012, multiple appeals were filed against the decriminalization of gay sex. The Central government opposed the decriminalization of gay sex, "This is highly immoral and against the social order."

All those people who opposed the decision were saying that if there is any change in the law that is considered wrong by society and religion, then ultimately its negative impact gradually increases on society.

In 2014, the Supreme Court in Suresh Kumar Koushal v. Naz Foundation & Ors 9 . overturned the decision of the Naz Foundation v. Government of NCT Delhi. A 2-judge bench reinstated section 377 in its original position. So, homosexuality even if it is done by a consensual adult, is a criminal offense.

Evolution of Transgenders Rights in India

  • NALSA v Union of India 10
    The Supreme Court declared that transgender is a third gender by affirming the rights of transgender persons under Articles 14, 15 11 , 19 12 , and 21. Transgender people have a right to decide their gender. It directed the government to grant legal recognition to their gender identity such as males, females, or the third gender.
  • KS Puttaswamy v. Union of India 13
    In 2017, a nine-judge constitutional bench of the Supreme Court unanimously recognized the right to privacy as a fundamental right under Article 21. Sexual orientation is an essential component of identity. The identity of a person was also considered under the scope of privacy. Equal protection demands protection of the identity of every individual without discrimination.
  • Navtej Singh Johar v. Union of India 14
    In August 2018, the Supreme Court heard a curative petition against the Suresh Kumar Koushal Vs Naz Foundation & Ors. In September 2018, a five-judge Constitution bench led by ex-CJI Justice Dipak Mishra unanimously partially struck down section 377 to the extent that it criminalized consensual homosexuality between two adults. So, this ruling of the Supreme Court overturned the Suresh Kumar Koushal Vs Naz Foundation & Ors. and upheld the Naz Foundation v. Government of NCT Delhi.
Right to Marry is a fundamental Right?
Shafin Jahan v. Asokan K.M. & Ors. 15 (Hadia's marriage case)
Hadia, a Hindu female of 24 years, converted into a Muslim to perform marriage with her Muslim partner Shafin Jahan in the state of Kerala. Allegations were made against Shafin Jahan that he had forcefully converted his partner Hadia into Islam and performed marriage. The Kerala High Court declared the marriage of Shafin Jahan with Hadia annulled. When the matter reached the Supreme Court, it set aside a Kerala High Court judgment that annulled the marriage of a woman who converted to Islam and married a man of her choice. The ruling recognized the right to choose one's partner for marriage as a facet of the fundamental right to liberty and dignity under Article 21.

Shakti Vahini v. Union of India 16 (Honour Killing Case)

In March 2018, the Supreme Court issued directives to prevent honor killing at the behest of khap panchayats. In the ruling, the court recognized the "right to choose a life partner" as a fundamental right.

Analysis of Same-sex Judgment

18 same-sex couples had moved petitions before the Supreme Court seeking recognition of their relationship with the legal and social status of "marriage". They made the argument that "marriage" should also include a larger bouquet of rights, including not just "cohabitation." Following are some of the rights connected with the marriage available to the spouse: Medial and end-of-life decisions.

Right to appoint nominees in finance, Banking, and Insurance matters.
Right to Inheritance and succession.
Adoption and surrogacy.

Special Marriage Act and Foreign Marriage Act
The petitioners sought legal recognition under the Special Marriage Act 17 registration of marriage under the Special Marriage Act, as well as the Foreign Marriage Act 18 The petitioners pray the court to interpret section 4 of the Special Marriage Act in gender-neutral terms.

What is the Foreign Marriage Act?

Suppose, an Indian person went to the USA for a few days to study. Thereafter Indian people got married to an American citizen and officially registered their marriage in the USA. Such a couple came back to India and wants to settle here. If the married couple wants all rights and responsibilities, then they must show the marriage certificate to the Indian marriage registrar. Then such marriages got recognition in India. If the marriage is legal in a foreign country, then it will get the same legality in India.

Senior Advocate Geeta Luthra addresses the issue of same-sex marriages under the Foreign Marriage Act. She was appearing on behalf of a same-sex couple whose marriage was registered in Texas, USA. She contended that only a marriage against International Law would be denied recognition under the Foreign Marriage Act. And since the petitioner's marriage was confirmed with the laws of the USA, she sought similar recognition in India. The government contends that around 160 laws connected with marriage must be amended. Only legal recognition of same-sex marriage under the Special Marriage Act and the Foreign Marriage Act is not enough.

The center and some states have opposed the argument of the same-sex couple on the grounds stating the socio-legal concept of "marriage" is inherently connected to religious and cultural norms. It is therefore within the domain of personal laws that would require a "wider national and social debate." The center said that marriage connects both Society and religion. It is not just a legal matter. If the legislature changes the law and the society is against such change, then in such case whether such a law will be implemented? The answer is NO. It has a bad repercussion such as society coming onto the street and it will lead to instability. So, in such scenarios, societal acceptance is considered a necessary indicator.

Arguments on Behalf of Petitioners:
Senior advocate Mukul Rohatgi argues that the right to marry for non-heterosexual couples is implicit in Articles 14,15,16,19, & 21.

Violation of Article 14:
Denying the right to marry is a violation of Article 14, which deals with equality before the law. Heterosexual couples have the right to marry whereas non- heterosexual or same-sex couples do not have the right to marry.

Violation of Article 15:
The state is discriminating same-sex couples on their right to marry based on sex i.e., sexual orientation or sexual identity.

Violation of Article 16:
The state is denying equality of opportunity in public employment for same-sex couples or transgender community.

Violation of Article 19:
Same-sex couples or transgender communities are denying their freedom of speech or expression i.e., freedom to express their identity or gender in society.

Violation of Article 21:
It deals with the right to life and personal liberty. The right to choose a partner for marriage is part of the personal liberty of an individual.

He further states that current laws create a "discriminatory exclusion based solely on sexual orientation" which violates fundamental rights. Petitioners also argued that the right to exercise the choice of partner, the right to free association, and the basic rights of privacy and dignity are being denied to same-sex couples. Petitioners sought the interpretation of the Special Marriage Act to read marriage as between spouses instead of "man and woman."

For this Mukul Rohatgi pointed to Section 4 of the Special Marriage Act which refers to a marriage in gender-neutral terms, between 'any two persons'. However, Rohatgi argued simply amending the Special Marriage Act is not enough. A Constitutional declaration of marriage is needed, similar to that of the heterogeneous group.

The issue regarding the minimum marriageable age for Same-sex couples:
The Special Marriage Act imposes a minimum age of marriage for men and women- 18 for girls and 21 for boys. Then, the question arises what should be the age in the case of homosexual marriages? Moreover, in the case of transgenders, what gender state should be considered for determining the age? Solutions by petitioners submitted that for lesbian couples the minimum age should be prescribed as 18 years, while for gay couples it should be 21 years. For transgender couples, the same age would apply based on the gender they identify with.

Civil Union Vs Marriage:

Marriage is a social institution. It governs religion and society. Every religion has certain rituals or ceremonies that decide how the marriage will take place. On this basis, society will accept it. Based on that the couples have some rights & and responsibilities towards each other. The rights available to married couples in the public sphere are organized by the state.

The state prescribed the rules for a valid marriage. Based on that, other rights of binary are governed such as inheritance, maintenance, adoption, or other laws related to marriage. So, marriage is a religious institution recognized by law that allows two individuals (a man & and a woman) to marry in society.

In contrast, a civil union is a marriage-like legal sanction provided to two individuals (non- binary) generally of the same sex. Since same-sex marriage is outside the scope of religion- based definition of marriage. Hence, civil union is a tool devised to grant similar legal protection to couples who opt for same-sex marriage.

Whether Civil Union enough?

The idea of a civil union for same-sex couples as an alternative to marriage was supported by Chief Justice of India DY Chandrachud and Justice Sanjay Kishan Kaul. However, the petitioners state that civil unions are not an equal alternative and do not address problems presented by excluding non-heterosexual couples from the institution of marriage.

This exclusion sends a message that homogenous marriages do not have as much significance as "real" marriages. The concept of civil union for same-sex couples has not been accepted by the other three judges of the Supreme Court.
  • Marriage has a religious definition: Various religions have always recognized marriage only between a man and a woman. If a new idea of marriage has to be imagined, then it must be done by the Parliament and not the court which can create it.
  • The right to marry is not absolute: Centre further replied that the right to marry is not absolute and it is always subjected to the statutory regime provided by the competent legislature. The state always has a legitimate interest in regulating the marital relationship.
  • The right to privacy cannot extended to marriage: The Center argued that while the right to privacy exists, it cannot be extended to marriage. When two consenting adults want societal acceptance of the relationship by way of marriage, they are conferred with a public status by the state. Centre further argued that consenting sex between two adults is in the sphere of privacy within the intimate zone. However, recognizing the relationship between the very same two individuals as marriage falling in the public zone has a necessary and inevitable public element.
  • Parliament must decide: The Center has repeatedly said that the decision on same-sex marriage can only be made in Parliament. The argument essentially is that there exists a democratic right for people to regulate themselves and that it cannot be mandated by a court. Moreover, 160 laws would be impacted in the process of bringing marriage equality. Consequently, Parliament is the only forum to make such laws.
  • Interpreting the law: The key argument of the center is that the court cannot interpret the Special Marriage Act to include same-sex marriage in a meaningful way. The court will have to examine the entire architecture of the Act rather than examine a few words like husband, wife, etc. Centre mentioned several instances where simply replacing the words wife and husband with the person would not be compatible with the rest of the legislation.

For instance, Section 15 of the Indian Succession Act 19 states that "the wife acquires the domicile of the husband upon marriage." So who will be the wife in a same-sex marriage? Some rights are exclusively available to the wife, such as Section 13(2) of the Hindu Marriage Act 20 states that "a wife may seek divorce on the ground that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy, or bestiality." In the case of gay marriage, who would get this right?'

Issues regarding the Adoption by same-sex couples:

A huge debate has come up on the issue of whether same-sex couples would be allowed to adopt children. The government argued that the "purpose of marriage" was the perpetuation of the species through the birth of children. Petitioners countered by arguing that the procreation of children is not the sole purpose of marriage and the relationship of the childless heterosexual couple is also considered a valid marriage.

The National Commission for Protection of Child Rights (NCPCR) has opposed allowing adoption by same-sex couples on grounds of "mental and emotional development of a child." Petitioners countered by arguing that children born in heterosexual families have different patriarchal gender norms in their mentality based on differentiation that the male member in the family is the main earning person and a female member has to take care of household duties.

Such things may not be seen in children adopted by same-sex couples. The government argued that there may be a psychological impact on a child, if his upbringing is done by same-sex couples. In response, senior advocate Maneka Guruswamy, appearing for the Delhi Commission for the Protection of Child Rights, said:
"There was no evidence to say that same-sex marriage had any adverse effect on adopted children."

She presented studies and found that there is no adverse or psychological impact on children and often the child academically outperforms those who have straight parenting.

The Supreme Court views:
Minority view: CJI DY Chandrachud, Justice Sanjay Kishan Kaul
CJI Chandrachud did not agree with the petitioner's argument that marriage is an inherent right that the state should not regulate. The minority view stated that marriage has to be regulated through law by the state, otherwise, it may not attain social and legal significance. On amending the Special Marriage Act, CJI Chandrachud said that the court could not allow such an amendment because it would be considered as entering into the domain of the legislature."

The minority view added that the exclusion of same-sex couples from exercising their right of adoption has the effect of "reinforcing the disadvantage already faced by the queer community." Also, "Law cannot make an assumption on good and bad parenting based on the sexuality of any individuals." Further, CJI held that unmarried couples, including queer couples, could jointly adopt a child. The CJI held that Regulation 5(3) of CARA Regulations, insofar as it prohibited unmarried and queer couples from adopting a child violated Article 15 of the Constitution.

Majority Views: Justice Ravinder Bhat, Justice Hima Kohli, and Justice P.S. Narasimha Justice Ravinder Bhat held that the present case was not where the Supreme Court could require the state to create a legal status. The court could not interpret the Special Marriage Act to include same-sex couples since the objective of the legislation is not to facilitate same- sex couples' marriage. The court can only interpret a law when it does not fulfill its objective.

The objective of the Special Marriage Act is to facilitate inter-caste / inter-religious marriages, not same-sex marriages. Any addition made to the legislation is the work of the Parliament and does not come under the court's domain. The majority of judges disagreed with the CJI on the right of queer couples to adopt and stated that Regulation 5(3) of the CARA regulation could not be held unconstitutional.

Right to Marry vs Right to Choose

The right to Choose the person of your choice for marriage is a fundamental right. The state guarantees that one can choose whom to marry. So, a citizen has the right to marry, but getting the marriage registered for legal recognition is not a fundamental right. On this point, 5 judges unanimously held that the right to marry is not a fundamental right under the Constitution of India.

Way Forwards
After the recent verdict of the Supreme Court, legal recognition of same-sex marriage in India become an essential topic to protect the basic fundamental rights and dignity of LGBTQIA+, irrespective of their sexual identity or orientation. The biggest hurdle that comes in the path of same-sex marriage is societal acceptance. To solve this problem, a societal awareness campaign has to be launched to educate the general public about homosexual communities and to remove all stereotypes associated with them.

  1. The Hindu Marriage Act, 1955
  2. The Special Marriage Act, 1954
  3. The Christian Marriage Act of 1872
  4. Supriyo v. Union of India" 2023 SCC Online SC 1348
  5. Section 377 of the Indian Penal Code, 1860
  6. Naz Foundation v. Government of NCT Delhi 2009 SCC Online Del 1762
  7. Article 14 of the Constitution of India
  8. Article 21 of the Constitution of India
  9. Suresh Kumar Koushal Vs Naz Foundation & Ors. (2014) 1 SCC 1
  10. NALSA v Union of India (2014) 5 SCC 438
  11. Article 15 of the Constitution of India
  12. Article 19 of the Constitution of India
  13. KS Puttaswamy v. Union of India (2017) 10 SCC 1
  14. Navtej Johar v. Union of India (2018) 10 SCC 1
  15. Shafin Jahan v. Asokan K.M. & Ors. (2018) 16 SCC 368
  16. Shakti Vahini v. Union of India (2018) 7 SCC 192
  17. The Special Marriage Act, 1954
  18. The Foreign Marriage Act, 1969
  19. Section 15 of the Indian Succession Act of 1925
  20. Section 13(2) of the Hindu Marriage Act, 1955

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