After Section 377 read down, maybe need to redefine marriage: CJI

The bench also comprises Justices S K Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha.

The CJI’s remarks came as Senior Advocate A M Singhvi argued how to interpret the Special Marriage Act (SMA), 1954, to provide rights under it to same-sex couples too.

Paraphrasing his arguments, the CJI said: “Your principal premise (is) that when the legislation was enacted in 1954, the object of the legislation was to provide a form of matrimony for people who are really not falling back on their personal law of marriage…Our law has really evolved to recognise the fact, when you decriminalised homosexuality, you realised, these are not just one-off relationships, these also comprehend a stable relationship. Therefore, by decriminalising homosexuality, we have not just recognised fleeting relationships between consenting adults of the same gender, we have also recognised implicitly… the fact that people who are of the same sex would be in stable relationships. Now if the object of the law in 1954 was to bring in its fold people who would be governed by a matrimonial relation apart from their personal law, then surely that law is capable of being broadly read, according to you, so as to take into account more stable relationships of same sex as well”.

The CJI continued that “looking at India constitutionally and socially as well, we have already reached the intermediate stage…It postulates that…your very act of decriminalising homosexuality, does contemplate that therefore people who belong to the same sex would be in stable marriage-like relations”.

This is “because, the moment we said that this is no longer an offence under Section 377, therefore we necessarily contemplate that you could have a marriage-like relationship between two persons who do not see these as chance encounters, but as something more than that. Not just a physical relationship, but something more of a stable emotional relationship which now is an incident of our constitutional interpretation. Once we have made that, we have crossed that bridge, then the next question is as to whether our statute can recognise not just marriage-like relationships, but relationships of marriage”, the CJI said adding “it requires us to perhaps redefine the evolving notion of marriage”.

The court also wondered why it should be bound by the original interpretation of a statute like the SMA when the fact is it never went by the original interpretation of the Constitution.

“…We have never regarded ourselves as bound by an originalist interpretation of the Constitution. If we have never been bound by an originalist interpretation of the Constitution, should we be bound by an originalist interpretation of the statute which is in that sense subordinate to the Constitution?’, asked the CJI.

“To put it bluntly, is the relationship between a man and a woman so fundamental to our law and, therefore, the SMA, that for us to comprehend that it would also include a relationship between a same-sex couple would be completely redoing the tapestry of the legislation?”, he added.

Singhvi responded citing a judgement which said that the law doesn’t operate in a vacuum. “As social norms and values change, laws too have to be reinterpreted and recast. Law is really a dynamic instrument fashioned by society for the purpose of achieving harmonious adjustment, human relations by elimination of social tensions and conflict”.

On the question of what would be the minimum age for the spouses if same sex couples were to find place in the SMA, Singhvi said: “(the) simple and correct solution is whichever of the same sex couple is involved, whether it is two ladies or two men, that age will apply, whether it’s 18 or 21.”

The hearing also saw the bench question the requirement of a prior notice for parties planning to marry under SMA.

Challenging the provision, Singhvi said: “It is unconstitutional because before a formal entry into what I consider a vital form of society, marriage, you are invading my privacy by directing me that I must declare my intention in public domain, for objections to be invited…Why should I? It’s my personal decisional autonomy. It’s the heart of my privacy”.

Justice Bhat responded that “it was based on patriarchy” and “was created at a time when women didn’t have agency”. The CJI said that “if the object (of the provision) was to protect from their personal law…you are virtually laying them open to invasion by society, by Collectors and District Magistrates and Superintendents of Police”.

Senior Advocate Raju Ramachandran, also appearing for some petitioners, said the requirement of notice is totally retrograde and obnoxious. “This notice requirement amounts to the requirement of giving a notice to exercise my fundamental rights…This 30-day notice is designed for parental bodies and other busy bodies to create roadblocks”.

The CJI said that “if the effect is to defer your right to get married at a time when you desire to, it can’t be regarded as procedural because the impact is on your substantive right to get married at the time you choose”.

He added that “there is a very real likelihood, and not just a remote possibility, that this will disproportionately affect situations in which one of the spouses either belongs to a marginalised community or minority. So it has a disproportionate impact on those who are the most vulnerable sections of our society.”

Ramachandran said the court should put in place a protocol on the lines of the Shaktivahini protocol in the context of heterosexual couples seeking protection from Khap panchayats.

Senior Advocate K V Viswanathan for the petitioners said inability of same sex couples to procreate cannot be a reason to deny their marriage rights. He added that those who are beyond age of reproductive capacity, women who may medically be unsafe for pregnancy, are allowed to marry.

“And what happens when there is a heterosexual couple and the child sees domestic violence? Will that child grow up in a normal atmosphere? Of a father becoming an alcoholic, coming home and thrashing the mother every night, and asking for money for alcohol”, asked the CJI and reiterated that as he had said earlier, “there are no absolutes”.