On April 18, the Supreme Court began considering petitions to legalise same-sex marriages—over the vociferous objections raised by the government. In part one, we look at the laws involved and arguments made by the petitioners. Part two lays out the government’s point of view—and what the Court has said thus far.
Researched by: Rachel John
Tell me about this case…
How we got here: This how the same-sex petitions ended up at the highest court:
- Two same-sex couples filed writ petitions in the Supreme Court on November 14, 2022.
- The first petition was filed by Supriyo Chakraborty and Abhay Dang while the second was filed by Parth Phiroze Merhotra and Uday Raj Anand.
- A week later, on November 25, a bench led by Chief Justice of India DY Chandrachud asked the union government to respond to the petitions.
- At the same time, similar petitions were being heard in courts across the country. In January 2023, these petitions were transferred en masse to the Supreme Court.
- A five-judge constitution bench was set up to consider the pleas—since a decision would have a “huge bearing on society”—and the case will require interpreting the Constitution.
- There are a total of 20 petitions challenging the validity of a slew of marriage laws—including the Special Marriage Act, the Hindu Marriage Act, the Foreign Marriage Act.
Wait, what are the laws on marriage in India?
We do not have a single law—but a number of different acts that govern marriage. Religious communities have their own personal laws—for example, the Hindu Marriage Act, Muslim Personal Law (Shariat) Act and Indian Christian Marriage Act. We also have the Special Marriage Act—that allows interfaith couples to get married without requiring the religious conversion of one partner. The Foreign Marriage Act governs the unions of Indians getting hitched overseas.
The Special Marriage Act: Most of the petitions focus on the Special Marriage Act—which was enacted in 1954. While unions that fall under the personal laws are sanctioned by religion—and require conversion, these civil marriages are solemnised by the state. But they have to meet a slew of requirements—including submitting an advance notice of their intention to marry to a “marriage officer”—who then posts a public notice in case anyone wants to object. FYI: these notices offer ample opportunity for rightwing groups to harass Hindu-Muslim couples.
As for the Foreign Marriage Act: While the wording does not explicitly prohibit same sex marriages, officials refuse to register them under the law.
Ok, so what do the petitioners say?
There are a number of arguments—made before and during the case. They can be roughly clubbed together under the following headings.
Interpreting the language: Some of the petitions challenge the interpretation of the language of these laws. Abhijit Iyer-Mitra’s petition in the Delhi High Court focused on the fact that Hindu Marriage Act does not specify gender:
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….”
The wording of the Special Marriage Act is similarly vague:
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…
For example, the SMA requires “each party” 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). This arguably can hold true for same-sex couples, as well.
Denial of dignity: The Supreme Court has used Article 21—which guarantees the right to life and liberty—to protect interfaith marriages. And it decriminalised homosexuality in 2018 declaring this:
The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation.
Petitioners argue that they cannot exercise this right to “dignity and self-fulfilment” without the right to marry. For instance, LGBTQ+ couples cannot adopt children or have a child by surrogacy. They do not have rights to inheritance, maintenance or tax benefits. They cannot claim pension or other benefits when their partner passes away.
Also this: Representing one of the petitioners, advocate Menaka Guruswamy points out that recognition of marriage was not only about dignity but was also “a bouquet of rights” that accompany it:
She argued that same-sex partners are denied bank accounts, life and medical insurance among other things. “One facet is the constitutional value of dignity, equality, fraternity and liberty and the other facet is the day-to-day business of life,” she told the court
The right to equality: The petitioners argue that the ban on same-sex marriages infringes on their fundamental right against discrimination—guaranteed under Articles 14 and 15. While decriminalising homosexuality, the Court said, “Members of the LGBT[QIA+] community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law.” The right to marriage is, therefore, a logical extension of this ruling—as one of the lawyers argued this week:
Your Lordships have removed one [stumbling] block, which is that [homosexual persons] cannot go to jail. The second step has to be affirmative, which is the recognition of the right to marriage so that we are equal, recognised by the State, and so that the society follows the State because society is resistant to change.
Point to note: Transgender couples can get married under the current law—but only after they have transitioned. They point out that the language of the SMA is inherently discriminatory—and should be replaced with inclusive terms:
The petition challenges sections 4 (conditions relating to solemnisation of marriages), 22 (restitution of conjugal rights), 23 (judicial separation), 27 (divorce), and 44 (punishment of bigamy) of SMA, and demands the replacement of “husband,” “wife,” “male,” and “female” with “spouse” and “persons,” in all of these sections, so as to include all persons irrespective of their gender identity and sexual orientation.
Right to privacy: This fundamental right includes the right to choose a partner of any gender. The lawyers cite a key 2018 judgement—written by the current CJI Chandrachud—which asserts:
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.
The bottomline: In part two, we will look at the arguments laid out by the union government—which deserve consideration even if we may disagree with them—and the Court’s initial comments.
BBC News and Scroll report on the petitioners who are leading the campaign to legalise same-sex marriage. The Hindu has an excellent explainer on the Special Marriage Act. Outlook magazine offers an overview of the legal issues involved—while Bloomberg News has a big picture view on queer rights in India. Leaflet, The Hindu and Indian Express have more details on the petitioners’ legal arguments.