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Jayna Kothari writes: Why and how the Supreme Court should recognise same-sex marriage

Families and communities often used the notification requirement under the Special Marriages Act to harass inter-faith, inter-caste couples. This could happen to non-heterosexual couples as well

There is no doubt that the time has come for the recognition of marriage equality in India. (Illustration: C R Sasikumar)

The battle to legalise same-sex marriage has taken a new turn with petitions being filed in the Supreme Court. The Court has issued notice in these petitions and there is significant excitement about their outcome. Several petitions have been filed in the Kerala and Delhi High Courts since 2020 and these too are pending decision. It is likely that the petitions from the HCs will be transferred to the top court and will be heard together.

Why were petitions filed in the Supreme Court when cases were pending in the HCs? While there could be many arguments for this, it was clear that these cases would eventually go to the apex court, and hence filing the new petitions in the SC would quicken this journey.

The recent petitions have been filed by two gay couples, seeking relief under Article 32 of the Constitution to enforce their fundamental rights and recognise same-sex marriage under the Special Marriages Act 1954 (“SMA”). This has been done by asking the Court to recognise that under the SMA “marriage between any two persons” should be interpreted to include same-sex marriages, or in the alternative to hold the SMA as unconstitutional to the extent that it does not allow for marriages between same-sex couples.

I would argue that legal recognition for same sex marriage is a little more complex. The SMA under Section 4 lays down the conditions relating to the solemnisation of special marriages. While Section 4 refers to the solemnisation of marriages between any two persons [emphasis added], it lays down one of the conditions that “the male has completed the age of 21 years and the female the age of 18 years”. In addition to this, throughout the legislation, there are references to “husband” and “wife” in the provisions relating to registration of marriages, restitution of conjugal rights, judicial separation, divorce and alimony. If same-sex marriages are to be recognised under the SMA, then the Supreme Court would need to interpret or read into every reference to “husband” and “wife” under the present statute to include the word “spouse” so that it is not only marriage that is recognised, but all related reliefs under SMA are equally available to non-heterosexual couples.

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The Constitutional Court of South Africa did this in Minister of Home Affairs v. Marie Adriana Fourie in 2005. In the petition seeking recognition of same-sex marriage, J Albie Sachs held that the law of marriage — the Marriage Act of 1961 — be kept alive and that same-sex couples be enabled to enjoy the status and benefits coupled with responsibilities that it gives to heterosexual couples by reading into the sections the words “or spouse” after the words “husband” and “wife” and this relief was proposed by the petitioners. He held that reading-in of the words “or spouse” would ensure that the values of the constitution would be upheld and that the existing institutional mechanisms for the celebration of marriage would remain the same. The South African Constitutional Court gave the country’s parliament 12 months’ time to make this amendment failing which it held that the words “or spouse” will automatically be read into the relevant sections of the Marriage Act to enable same-sex couples to achieve the status and benefits — coupled with responsibilities — which it presently makes available to heterosexual couples.

Though such relief is not specifically asked for in the present petition, the Supreme Court can fashion such a remedy to read in the word “or spouse” after the words “husband” and “wife” wherever referred to in the SMA to ensure that the entire statute is inclusive of all couples irrespective or sexual orientation and gender identity and not just heterosexual couples.

Filing these petitions in the Supreme Court was also an opportunity for the petitioners to seek the deletion of sections 5,6,7,8,9 and 10 of the SMA, which mandate a notice of intended marriage publicly, the filing of objections by any parties who may object to any marriage, and the decision making by the Marriage Officer on such objections. Other petitions too have challenged the public notice requirements and filing of objections under the SMA, but I argue that this would be important to raise in petitions seeking marriage equality in the context of same-sex marriage. The notice and objections provisions under the SMA are used extensively by families and communities to prohibit inter-caste and inter-faith marriages, and there is no doubt that these provisions will be used against couples in non-heterosexual marriages as well. Evidence of this is borne out by protection orders issued by several high courts where lesbian couples and couples where one of the partners is transgender are harassed by family and community members. Merely seeking recognition of same sex marriage under the SMA without seeking the deletion of provisions allowing for public notice of marriage, which gives the power to anyone to file objections to any marriage would be an incomplete remedy. These provisions are often weaponised to prohibit persons from marrying outside of accepted social norms.

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There is no doubt that the time has come for the recognition of marriage equality in India. All eyes will be on the Supreme Court now with the hope that it gives full recognition of all rights, remedies and responsibilities relating to marriage to be enjoyed by all couples, and not just heterosexual couples.

The writer is a Senior Advocate at the Supreme Court

First published on: 05-12-2022 at 14:09 IST
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