On 17th October, the Indian Supreme Court delivered a historic judgment on the recognition of Same Sex Marriage. The Indian Supreme Court refused to recognize the same sex marriage.

There was a bench of five judges, two judges Justice Dhananjay Yashwant Chandrachud who is also current CJI of India, and Justice Kishan Kaul gave their separate judgment in favor of Same Sex Marriage, but, the other three Judges, Justice Ravindra Bhatt, Justice Narsimha, and Justice Hima kohli pronounced their judgments against the recognition of Same Sex Marriage.

The petitioners made certain general prayers, in addition to the prayers specific to the facts of their case. Petitioners also challenged the provisions of Special Marriage act, 1954, the Challenges to SMA were as follows-

“a. LGBTQ persons have a right to marry a person of their choice regardless of religion, gender and sexual orientation;

b. The SMA is violative of Articles 14, 15, 19, 21, and 25 of the Constitution insofar as it does not provide for the solemnization of marriage between same-sex, gender non-conforming or LGBTQ couples;

c. The SMA applies to any two persons who seek to get married, regardless of their gender identity and sexual orientation;

d. The words “husband” and “wife” as well as any other gender-specific term in the SMA ought to be substituted by the word “party” or “spouse”;

e. All rights, entitlements and benefits associated with the solemnization and registration of marriage under the SMA are applicable to LGBTQ persons;

f. Sections 5, 6, 7, 8, 9, 10 and 46 of the SMA which contain requirements regarding the publication of a public notice of a proposed marriage and the domicile of the couple, and which empower the Marriage Registrar to receive and decide objections to the proposed marriage are violative of Articles 14, 15, 19 and 21 of the Constitution;

g. The validity of marriages already solemnized or registered under the SMA will not be jeopardized if one spouse transitions to their self-determined gender identity.”

While considering the case, Justice DY Chandrachud analysed the challenge to the SMA, as follows-

The scheme of the SMA

The Special Marriage Act, 1954 was enacted to provide a special form of marriage for couples belonging to different religions and castes. Section 4 of the SMA prescribes conditions relating to the solemnization of special marriages. The relevant portion of the provision is extracted below:

4. Conditions relating to solemnization of special marriages.―Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:―

(a) neither party has a spouse living;

(b) neither party―

(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(iii) has been subject to recurrent attacks of insanity

(c) the male has completed the age of twenty-one years and the female the age of eighteen years;

(d) the parties are not within the degrees of prohibited relationship:

Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship; […] ”

Section 4(a) and (b) use the gender-neutral word ‘party.’ However, Section 4(c) stipulates that the male must have completed twenty-one years and the female must have completed eighteen years. Section 4(d) stipulates that the parties should not be within the degrees of prohibited relationship.

Section 2(b) defines “degrees of prohibited relationship: as follows:

“(b) “degrees of prohibited relationship”-a man and any of the persons mentioned in Part I of the First Schedule and a woman and any of the persons mentioned in Part II of the said Schedule are within the degrees of prohibited relationship.

Part I of the First Schedule consists only of women’s relationships with men, such as mother and daughter. Part II of the First Schedule consists only of men’s relationships with women, such as father and son.

The conditions stipulated in Section 4 when read with the definition of prohibited relationship in Section 2(b), limit the application of the SMA to heterosexual unions.

Consequences of Marriage under the SMA

Chapter IV of the enactment lays down the consequences of marriage under the SMA.

Section 19 stipulates that the marriage solemnized under the SMA of any member of an undivided family who professes the Hindu, Buddhist, Sikh, or Jain religions shall be deemed to affect their severance from such family.

Section 20 provides that subject to the provisions of Section 19, any person whose marriage is solemnized under this Act shall have the same rights and shall be subject to the same disabilities in regard to the right of succession as a person to whom the Caste Disabilities Removal Act 1850 applies.

The Caste Disabilities Removal Act 1850 provides that any law or usage which inflicts the forfeiture of rights or property, or which would affect the right of inheritance because of renouncing religion, having been excluded from the communion of religion, or being deprived of caste shall cease to be enforced by law. Thus, subject to Section 19 of the Act, a person’s right to inheritance shall be not forfeited because they married a person of another religion or caste.

Section 21 states that succession to the property of any person whose marriage is solemnized under this Act shall be regulated by the provisions of the Indian Succession Act 1925.

Section 21A provides a special provision in certain cases. The provision states that Sections 19, 20 (to the extent that it creates a disability), and 21 shall not apply when a marriage is solemnized between a person who professes the Hindu, Buddhist, Sikh, or Jain religion with a person who professes the Hindu, Buddhist, Sikh or Jain religion.

The rules of succession under the ISA shall not apply where two persons who solemnize their marriage under the SMA belong to the Hindu, Buddhist, Sikh, or Jain religion.

Section 21 essentially ruptured the cord between a Hindu, Buddhist, Sikh, or Jain and their personal laws if they married under the provisions of the SMA. Section 21A was introduced in 1976 as a progressive provision. Section 21A links the SMA with the HSA if both the parties belong to a religion to which the HSA applies. Section 21A was introduced to remedy the disability brought in by Section 21.

Section 27 deals with divorce. Section 27(1A) grants the wife additional grounds of divorce.

Section 31 stipulates the Court to which a petition for divorce must be made. Sub-Section (2) of the Section is a special provision available to the wife for the presentation of a divorce petition.

Section 36 stipulates that the husband may be directed to pay expenses of the proceedings and such sum based on the income of the husband when the wife has no independent income, sufficient to support herself and necessary for divorce proceedings.

Section 37 stipulates that the court may order the husband to pay the wife permanent alimony and maintenance

The petitioners argue that Section 4 of the SMA is unconstitutional not because it expressly excludes or bars the marriage between two persons of the same-sex but because it excludes the solemnization of marriage between nonheterosexual persons by implication since it only governs a heterosexual union.

The decision of the South African Constitutional Court in Fourie

The petitioners have relied on Minister of Home Affairs v. Fourie (3 (2006) 1 SA 524), a case which emanated from South Africa, to argue that provisions of the SMA must be read in a gender-neutral manner.

In Fourie (supra), the common law definition of marriage and Section 30(1) of the Marriage Act 1961 were challenged. The common law definition of marriage in South Africa is that it is a “union of one man with one woman, to the exclusion, while its lasts, of all others.”

The formula for marriage prescribed by Section 30(1) of the Marriage Act is extracted below:

“Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed marriage with C.D. here present, and that you call all here present to witness that you take C.D. as your lawful wife (or husband)?’, and thereupon the parties shall give each other the right hand and the marriage officer concerned shall declare the marriage solemnized in the following words: ‘I declare that A.B. and C.D. here present have been lawfully married.”

The petitioners in Fourie (supra) argued that the reference of “husband or wife” in Section 30(1) excluded same-sex couples. The South African Constitutional Court allowed the petition by holding that Section 30(1) was unconstitutional because it excluded same-sex couples.

The opinion of the majority authored by Justice Albie Sachs suspended the declaration of invalidity for one year to cure defects in view of Section 172(1)(b) of the South African Constitution.

If the defect was not cured within the time frame stipulated, the word ‘spouse’ was to be read in the place of “wife (or husband)”. Justice Kate O Regan who authored the minority opinion disagreed with the majority on the question of the remedy. The learned Judge observed that the scales of justice and equity necessitate immediate relief and not a suspended declaration of invalidity.

The Court observed that Section 30(1) of the South African Marriage Act was under inclusive because it excluded same-sex unions by silence and omission. Such omission was as effective in law and practice as if effected by express language. The Court held that it would be discriminatory if same-sex couples were not given the benefits (both tangible and intangible) which were available to heterosexual couples through marriage.

The State justified the exclusion of samesex couples from the institution of marriage because of the social nature of marriage and strong religious beliefs. The Court rejected this argument on the ground that the reasons which were used to justify the exclusion were grounded in prejudice and that it was not a valid justification for the violation of fundamental rights.

On the question of relief, the Court made the following observations:

a. Parliament had expressly and impliedly recognised same-sex partnerships. The Domestic Violence Act 1998 defined a domestic partnership as a relationship between a complainant and a respondent who are of the same or opposite sex and who live/lived together in a relationship in the nature of marriage.

The Estate Duty Act 1955 stipulated that the spouse in relation to a deceased person includes a person who at the time of death of the deceased person was a partner of such person in a same sex or heterosexual union;

b. Section 172(1)(b) of the Constitution granted the Court the power to issue such order including suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect;

c. There was extensive consultation with the public on the issue of same-sex marriage. The South African Law Reform Commission’s memorandum on domestic partnership harmonised family law principles with the Bill of Rights which was preceded by extensive public consultation; and

d. The Court instead of reading in must grant the remedy of suspended declaration because reading in would be a temporary remedial measure which would be far less likely to achieve equality. Legislative action was well-suited for this purpose.

Though facially the case mounted by the petitioners before us is similar to the case mounted by the petitioners in Fourie (supra), the legal and the constitutional regime in South Africa and India varies.

First, it must be noticed that unlike the SMA, there was only one provision in the South African Marriage Act (that is, Section 30(1)) which made a reference to heterosexual relationships. However, as indicated above, various provisions of the SMA (Sections 4, 27(1A), 31, 36, and 37) confine marriage to a union between heterosexual persons.

Second, various enactments in South Africa already recognised same-sex unions unlike the Indian legal landscape where no law even remotely recognises the union between a same-sex couple. Thus, the canvas of the challenge before the South African Constitutional Court in Fourie (supra) and the legal and constitutional regime in place varies widely from that in India.

The decision of the UK House of Lords in Ghaidan

Counsel for the petitioners argued that this Court ought to interpret the SMA to make it ‘constitutionally compliant.’ They relied on the decision of the House of Lords of the United Kingdom in Ghaidan v. Godin-Mendoza [2004] UKHL 30 and urged this Court to adopt the principle of interpretation which had been adopted in that case.

In that case, the respondent was in a stable and monogamous homosexual relationship with his partner who was a tenant in the house that the couple shared. The respondent and his partner were living together when the latter died. The appellant (being the landlord) claimed possession of the house. The respondent resisted the claim on the ground that he ought to be considered a ‘statutory tenant’ in terms of UK’s Rent Act 1977.

This enactment provided that a surviving spouse of the original tenant shall be the statutory tenant if the surviving spouse was residing in the house in question immediately before the death of the original tenant. It also stipulated that a person who was living with the original tenant “as his or her wife or husband” shall be treated as the spouse of the original tenant.

In essence, the Rent Act protected the tenancy rights of a heterosexual couple when the couple was in a relationship that was of a similar character as marriage. The surviving partner in a homosexual relationship could have become entitled to an ‘assured tenancy’ which was less advantageous than a statutory tenancy.

The respondent contended that the difference in the treatment of heterosexual couples and homosexual couples was based on their sexual orientation alone, and lacked justification, infringing Article 14 (prohibition of discrimination) read with Article 8 (right to respect for private and family life) of the European Convention on Human Rights. He further argued that the court had a duty under Section 3 of the UK’s Human Rights Act 1998 to read and give effect to the Rent Act in a way which was compliant with the ECHR.

In other words, he urged the court to read the Rent Act such that it granted the surviving partner in a close and stable homosexual relationship the same rights as the surviving partner in a heterosexual relationship of a similar nature – the right to succeed the tenancy as a statutory tenant. The court of first instance rejected the respondent’s arguments. The first appellate court allowed the appeal, leading to proceedings before the final appellate authority, the House of Lords (now, the Supreme Court of the UK).

The House of Lords accepted the respondent’s arguments. It noted that the rationale of the Rent Act was that the security of tenure in a house which a couple had made their home ought not to depend upon which of them dies first. It held that there was no legitimate state aim which justified the difference in treatment of heterosexual and homosexual couples, and found that the Rent Act therefore violated the rights of the respondent under the ECHR.

Having so found, it relied on Section 3 of the Human Rights Act to interpret the Rent Act to mean that the survivor of a homosexual couple would have rights on par with the survivor of a heterosexual relationship for the purposes of succession as a statutory tenant.

Section 3 of the Human Rights Act reads as follows:

“3. Interpretation of legislation (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

As noticed by the House of Lords in Ghaidan (supra):

a. This provision was one of the primary means by which rights under the ECHR were brought into the law of the UK;

b. Section 3 permitted courts in the UK to depart from the unambiguous meaning of a statute, if required;

c. It also authorized courts in the UK to depart from legislative intent in interpreting the language used in a statute, if required;

d. It allowed courts to read in words to a statute which changed the meaning of that statute, to make it compliant with the ECHR as long as the new meaning was compatible with the underlying thrust of that enactment; and

e. Section 3 did not authorize courts to make decisions for which they were not equipped, such as when there were many ways of making a particular provision compliant with the ECHR. The House of Lords also noted that difficult problems could arise in some cases.

It is not open to this Court to adopt the interpretative principle laid down in Section 3 of the Human Rights Act for a simple reason:

the House of Lords derived the power to depart from legislative intent and read words into a statute such that it was compliant with the ECHR from the Human Rights Act, a statute enacted by the Parliament of UK. It did not rely on a common law principle or fashion a principle of interpretation based on common law. The House of Lords itself noted that “the interpretative obligation decreed by section 3 is of an unusual and far-reaching character.”

In India, there is no legislation which permits this Court to depart from legislative intent and read words into a legislation such that it is compliant with the Constitution. As discussed in the previous segment of this judgment on the power of judicial review, courts in India must be circumspect in relying on the law in other jurisdictions, torn from the context in which those decisions have been crafted.

It is not permissible for this Court to exercise a power which the Parliament of another country conferred on its courts, absent a similar conferment of power under the Indian Constitution.

This Court must exercise those powers which it has by virtue of the Constitution of India or any other Indian law. In any event, as the House of Lords held, courts may not exercise this power to make decisions for which they are ill equipped. This Court is not equipped to recognize the right of queer persons to marry under the SMA for reasons discussed in subsequent segments.

Institutional limitations with respect to the interpretation of SMA

It must be noted that this Court in the beginning of the hearing restricted the breadth of the challenge to non-personal marriage law. However, on a careful perusal of the provisions of the SMA, it is evident that Section 21A links the SMA to personal and non-personal laws of succession. In fact, such is the complexity of the SMA that the petitioners themselves had to submit lengthy charts on workability, which in effect reworked the structure of the SMA to include non-heterosexual union.

Abhishek Manu Singhvi

Dr. Abhishek Manu Singhvi, appearing for one of the petitioners submitted that there are three plausible interpretations of Section 21A in its application to marriages between two Hindus under the provisions of the SMA:

a. The Court may choose not to decide on the applicability of Section 21A to non-heterosexual Hindu couples in the present litigation and leave the question of succession open for future litigation;

b. The succession of Hindu non-heterosexual couples will be governed by the HSA and that of other interfaith non-heterosexual couples will be governed by the ISA (similar to interfaith heterosexual couples or heterosexual couples of other religions).

This requires a gender-neutral reading of the HSA and the ISA. The words “widow” and “widower” in the ISA and “male Hindu”, “female Hindu”, “widow”, and “widower” in the HSA can be interpreted in a gender neutral manner.

This interpretation must only be limited to issues related to marriage. To include transgender persons, the Court may hold that the words “male” and “female” under Sections 8 and 15 of the HSA may be read as “persons”; or

c. Since by agreement of parties, religious and personal law related issues are beyond the scope of this litigation, it follows that provisions of secular law that relate back to personal laws (like Section 21A) are excluded from consideration. Since Section 21A was introduced as an exception to the regime under Sections 19 to 21, non-consideration of the issue would revert the law to the position before the introduction of Section 21A which is that ISA would apply to all marriages under the SMA.

In addition to the ‘reading in’ of the provisions of other statutes such as ISA and HSA, the petitioners argue that the Court must also read into the following provisions of the SMA:

a. The words “widow” and “widower” in Schedules II and III of SMA must be read as “widow or widower” and “widower or widow”; and

b. Section 4(c) of SMA may be interpreted in the following way:

i. For same-sex couples, the provision may be read as prescribing eighteen years as the minimum age for both parties in a lesbian relationship, and twenty-one years for both parties in a gay relationship;

ii. For transgender persons, the minimum age requirement would depend on whichever gender/sex they identify as. So, a trans-man would be eligible to marry at twenty one years of age while a transwoman would be eligible to marry at eighteen years; and

iii. For those who do not identify either as a man or a woman, the following approach shall be adopted to ensure the inclusion of non-binary and intersex individuals:

A. The silence of the SMA on the minimum age qualification for persons other than ‘men’ and ‘women’ may be read as imposing no restriction other than the restriction imposed by other laws that stipulate the age at which persons are capable of making decisions for themselves, which is eighteen years; and

B. Alternatively, the Court may lay down guidelines as an interim measure and until Parliament fills the legislative vacuum.

If the Court finds that a provision is contrary to Part III of the Constitution, it shall declare that it is void, or read it down (by deleting phrases) or read words in (by adding or substituting phrases) to save it from being declared void.

If, in the present batch of petitions, this Court holds that Section 4 is unconstitutional because it is under inclusive to the extent that it excludes, by implication, the marriage between same-sex couples, the court could either strike down Section 4 of the SMA or follow the workability model submitted by the petitioners. If the Court follows the first approach, the purpose of a progressive legislation such as the SMA would be lost.

The SMA was enacted to enable persons of different religions and castes to marry. If the SMA is held void for excluding same-sex couples, it would take India back to the pre-independence era were two persons of different religions and caste were unable to celebrate love in the form of marriage.

Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another.

If this Court takes the second approach and reads words into the provisions of the SMA and provisions of other allied laws such as the ISA and HSA, it would in effect be entering into the realm of the legislature.

The submissions of the petitioners indicate that this Court would be required to extensively read words into numerous provisions of the SMA and other allied laws. The Court is not equipped to undertake an exercise of such wide amplitude because of its institutional limitations. This Court would in effect be redrafting the law(s) in the garb of reading words into the provisions. It is trite law that judicial legislation is impermissible.

We are conscious that the court usually first determines if the law is unconstitutional, and then proceeds to decide on the relief. However, in this case, an exercise to determine whether the SMA is unconstitutional because of under-inclusivity would be futile because of the limitations of this Court’s power to grant a remedy. Whether a change should be brought into the legislative regime of the SMA is for Parliament to determine.

Parliament has access to varied sources of information and represents in itself a diversity of viewpoints in the polity. The Court in the exercise of the power of judicial review must be careful not to tread into the legislative domain. It is clarified that this Court has not adjudicated upon the validity of any laws other than the SMA, the FMA, the Adoption Regulations, and the CARA Circular.


Supriya @Supriyo Chakroborty v. Union of India (2023)