Labours Of Love: Same-Sex Unions In India And The Legal Hurdles

Following the decriminalisation of homosexuality in 2018, Indian gender equality campaigners believe recognition of same-sex marriage is the next logical step.?

Though current Indian laws do not recognise same-sex marriages, the petitioners have argued that the laws have scope of such a recognition. The Indian judiciary has, over the years, recognised practices that are otherwise not explicitly addressed by laws —?such as live-in relationships. Such recognition rests on liberal interpretation of Indian laws and the Constitution, particularly Article 21 of the Constitution which guarantees the Right to Life.

The arguments for recognising same-sex relationships range from reading existing marriage laws in a gender-neutral way to challenging the constitutionality of laws not recognising same-sex marriages on grounds of violating fundamental rights.?

Marriage laws in India

Marriages in India fall under the domain of ‘personal laws’ which also govern other personal affairs such as divorce and succession.?

Since India lacks a uniform civil code, marriage laws apply to people as per their religion, such as the Hindu Marriage Act and Indian Christian Marriage Act. There also exists a secular Special Marriage Act which was made primarily for inter-faith marriages.?

The Hindu Marriage Act also applies to Buddhists, Sikhs, Jains, and all the sects of Hinduism — including Lingayats, a section of which is calling for it to be identified as a religion separate from Hinduism.?

The petitions filed so far concern the Hindu Marriage Act (HMA), Special Marriage Act (SMA), and Foreign Marriage Act (FMA). The FMA governs marriages involving Indians abroad.?

Petitions for same-sex marriages:

Hindu Marriage Act

One of the earliest petitions seeking recognition of same-sex marriages in India was filed in 2020 in the Delhi High Court by Abhijit Iyer-Mitra, a national security commentator and a member of the LGBT community.?

Iyer-Mitra argues that the Hindu Marriage Act (HMA) does not distinguish between heterosexual and homosexual marriages in its wording. To drive this point, he argues that HMA requires “any two Hindus” for a marriage, according to a copy of the petition accessed by Outlook.?

While listing the conditions for marriage, HMA’s Section 5 says, “A marriage may be solemnised between any two Hindus….”

Though the petition concerns the HMA, it also notes that Special Marriage Act (SMA) also does not prohibit same-sex marriages in its wording. It further says that the non-recognition of same-sex marriage violates the Right to Equality in Article 14 of the Constitution of India, Freedom of Religion in Article 25, and Right to Life in Article 21.

The petition also argues that the non-recognition of same-sex marriages is against the 2018 Navtej Singh Johar Vs Union of India Supreme Court judgement that decriminalised homosexuality and the 2017 SC Justice KS Puttaswamy (Retd) Vs Union Of India verdict protecting the right to privacy.

“The petitioners along with all other members of LGBT [community] in India even after the judgement of the Honourable Supreme Court of India in Navtej Singh Johar Vs Union of India are still far away from being able to get married,” says the petition (emphasis in original).

Citing the 2017 verdict, the petition says, “Marriage also comes under Right to Privacy which now includes all choices of person such as where you live, whom you marry, your sexual orientation.”

Notably, the petition does not seek any special marriage law for the LGBTQ community, but seeks marital recognition under the existing HMA.?

Special Marriage Act

Besides the Delhi High Court, two petitions seeking recognition of same-sex marriages under the Special Marriage Act (SMA) have also been filed in the Supreme Court. There are other pleas in the Delhi High Court too.

The reasoning is similar to the one in Iyer-Mitra’s petition regarding the Hindu Marriage Act — the gender-neutral wording. Legal experts highlight that SMA is more liberal than HMA with its wording.?

Listing the conditions related to solemnising marriages under SMA, the law’s section 4 says “a marriage between any two persons may be solemnised under this Act (emphasis added)” and does not mention ‘husband’ or ‘wife’ in its sub-section containing the conditions.?

Listing the age eligibility, SMA’s section 4 (c), says, “The male has completed the age of twenty-one years and the female the age of eighteen years.” However, the sub-section does not explicitly indicate that this eligibility is for a male to marry a female, and it is argued that this can be read as a gender-neutral provision.?

Moreover, SMA’s section 12 (2) laying out the criteria for solemnising the marriage says that “each party” needs to say in the presence of a marriage officer and three witnesses the following in any language — I [first party’s name] take the [second party’s name] to be my lawful wife (or husband).?

SMA’s 12 (2) reads, “Provided that it shall not be complete and binding on the parties unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,―’I, (A), take the (B), to be my lawful wife (or husband)’.”

While it mentions the terms ?“husband” ?and ?“wife” , it does not indicate gender. Notably, the sub-section calls people as “parties” — a gender neutral term. If read this way, the proclamation also becomes gender-neutral as one party irrespective of their gender has to call the other their husband or wife. A man marrying a man may call the partner husband and a woman marrying a woman may call the partner wife and it’s believed to be in line with this sub-section of the Special Marriage Act.?

However, this is the line of interpretation that same-sex marriage campaigners take. The Supreme Court, or the Indian state, has not taken up any such interpretation as of now, and this, therefore, remains only a theoretical approach to the recognition of same-sex marriages under the SMA.

Mumbai-based Advocate Dormaan Dalal says there are precedents of Supreme Court liberally interpreting statutory provisions depending on the nature and intent of the law.?

Dalal says the general rule is to interpret words of a statute literally —as they are— but the judiciary at times liberally interprets a provision when there is ambiguity or when an intended purpose is not served.?

Citing the example of a provision in the new land acquisition law dealing with lapsing of land acquisition, Dalal says, "The Supreme Court went beyond the literal interpretation while dealing with this provision in the Indore Development Authority case. A Liberal interpretation may also be given to ?Constitutional provisions as has been done by the Supreme Court in the Second Judges Case by interpreting the word 'consultation' to mean 'concurrence' in the process of appointment of judges."

Dalal further says, "The Special Marriage Act is best suited for recognising same sex marriages as it's a secular law not specific to any religion. The Act is comparable to laws governing civil unions in foreign countries."

It has been said that a Uniform Civil Code (UCC) could be a boost for gender and marriage equality but Dalal does not wish to comment on it.?

He says, “we should not delve into something which is not even codified as yet.”?

"We should discuss the current laws that are in existence and not argue about something which hasn’t been enacted," says Dalal when asked if UCC will be helpful in bringing marriage equality since it would bypass religious-based personal laws.

On its part, the Narendra Modi-led Union government has opposed same-sex marriages.

During the proceedings in the Delhi High Court on petitions filed by Iyer-Mitra and others, the Union government said any interference with heteronormative marriages "would cause havoc".

Precedents to support same-sex marriage recognition

Though no judgement has so far recognised same-sex marriages, a number of judgements have built groundwork for the same, according to supporters of the recognition, principal among them being the 2018 Navtej Singh Johar judgement.

However, recognising same-sex marriages will be much harder than decriminalising homosexuality, acknowledges Advocate Satchit Bhogle in the paper The Momentum of History — Realising Marriage Equality in India in NUJS Law Review.?

Bhogle builds a constitutional case for marriage equality, arguing through precedents that same-sex marriage is in line with constitutional provisions. He makes five major arguments:

Non-recognition is sex discrimination

Article 15 of the Constitution prohibits discrimination based on sex, among other grounds.

Citing the 2014 National Legal Services Authority (NALSA) Vs Union of India judgement that recognised the third gender, Bhogle writes, “It therefore concluded that sex discrimination under both Articles 14 and 15 (amongst several provisions in the Constitution) includes discrimination on the basis of gender identity and sexual orientation.”?

However, since the NALSA judgement came before the 2018 Navtej Singh Johar verdict, the SC’s reasoning’s application to same-sex affairs is not watertight. The plea asserts that choosing a partner of any gender is key to privacy, and autonomy. Citing the 2017 Puttaswamy judgement, Bhogle writes that the Supreme Court affirmed autonomy over personal and intimate choiSimilar observations were made in the earlier Shafin Jahan Vs Asokan KM judgement. Notably, the judgement was written by the current Chief Justice of India DY Chandrachud.

“The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith,” said the Shafin Jahan judgement.?

Right to Life with Dignity

Referring to the citation of Kharak Singh Vs State of UP in the Puttaswamy judgement, Bhogle writes that imposing solitude by denying marital rights to same-sex partners violates their Right to Life with Dignity.

He writes, “In India, where marriage is often the only socially acceptable intimate relationship, a law prohibiting marriage to a partner of one’s choice forces the individual to choose between living a secret life, always in fear of being exposed, and living in solitude. That is an inhibited life. It is not a life with dignity. Therefore, marriage as defined as ‘one man, one woman’ must be construed as violating the right to life with dignity under Article 21.”

Right to free expression

Bhogle notes Supreme Court judgments terming self-identification of gender as protected under right to free expression.?

“Any discrimination on the basis of one’s sexual orientation would entail a violation of the fundamental right of freedom of expression,” said the Supreme Court in its landmark 2018 judgement decriminalising homosexuality.?

Moreover, as Outlook earlier reported, the Indian judiciary has protected same-sex live-in relationships — though there appears to be only one well-cited ruling on the matter.?

“Therefore, we allow the writ application (criminal) and direct that the petitioner and the daughter of the Opposite Party No.5 have the right to decide their sexual preferences including the right to stay as live-in partners,” said the Odisha High Court in 2020 in a case involving two females wanting to stay together.

The HC while favouring the self-identification of gender said, “There is hardly any scope to take a view other than holding that the petitioner has the right of self-determination of sex/gender and also he has the right to have a live-in relationship with a person of his choice even though such person may belong to the same gender as the petitioner.”?