Edited excerpt from the judgment of Justice Ravindra Bhat in Same Sex Marriage
Challenge to the SMA on the ground of impermissible classification
The petitioners complained that provisions of the SMA, inasmuch as they excluded, or do not provide for marriage of non-heterosexual couples, is discriminatory, because the classification made in its various provisions are heteronormative, thus discriminating against non-heterosexual couples. This exclusion, is the basis of their challenge.
Hostile classification, which results in exclusion from benefits of a statute or policy, is based on the understanding that where “equals are treated differently, without any reasonable basis” as held in D.S. Nakara v. Union of India:
“The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. There ought to be causal connection between the basis of classification and the object of the statute. An executive action could be sustained only if the twin tests of reasonable classification and the rational principle co-related to the object sought to be achieved are satisfied.”
The differentiation or classification has to be based on the object or end sought to be achieved: a facet highlighted in Union of India v. M.V. Valliappan, where the court held that if there is a differentiation, having rational nexus with the “object sought to be achieved by particular provision, then such differentiation is not discriminatory and does not violate the principles of Article 14 of the Constitution”.
In fact, earlier, this court in State of J&K v. Triloki Nath Khosa ruled that “the object to be achieved” ought not to be “a mere pretence for an indiscriminate imposition of inequalities and the classification” should not be “characterized as arbitrary or absurd”.
The discussion on equality and the limits of permissive classification were conveniently summarized by the seven-judge bench in In Re the Special Courts Bill, 1978 (hereafter, “Re Special Court’s Bill”) . Some of the propositions were stated as follows:
“[..] (2).The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.
(3) The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.
(4). The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances.
It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.
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(6) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.
(7) The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation.
(8) The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them.
In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon person arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense abovementioned.
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(11) Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public.
Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality.”
The differentiation, therefore, is to be discerned from gathering of the object sought to be achieved by the enactment.
An Exclusion cannot be said discriminatory in every situation
For a moment, if it is assumed (as the petitioners argue) that the classification is suspect, because non-heterosexual couples are not provided the facility of marriage, yet such “under classification” is not per se discriminatory. This aspect was highlighted by this court in Ambica Mills:
“Since the classification does not include all who are similarly situated with respect to the purpose of the law, the classification might appear, at first blush, to be unreasonable. But the Court has recognised the very real difficulties under which legislatures operate — difficulties arising out of both the nature of the legislative process and of the society which legislation attempts perennially to re-shape — and it has refused to strike down indiscriminately all legislation embodying classificatory inequality here under consideration”
The question of some categories being left out, when a new legislation is introduced, was the subject matter of the decision in Ajoy Kumar Banerjee & Ors. v. Union of India & Ors. where it was held that:
“[…] Article 14 does not prevent legislature from introducing a reform i.e. by applying the legislation to some institutions or objects or areas only according to the exigency of the situation and further classification of selection can be sustained on historical reasons or reasons of administrative exigency or piecemeal method of introducing reforms.
The law need not apply to all the persons in the sense of having a universal application to all persons. A law can be sustained if it deals equally with the people of well-defined classemployees of insurance companies as such and such a law is not open to the charge of denial of equal protection on the ground that it had no application to other persons.”
These judgments have underlined that exclusion or under inclusion, per se, cannot be characterised as discriminatory, unless the excluded category of persons, things or matters, which are the subject matter of the law (or policy) belong to the same class (the included class).
Object of SMA
The Statement of Objects and Reasons of SMA clearly suggests that the sole reason for the enactment of the Act was to replace the earlier colonial era law and provide for certain new provisions; it does not refer to any specific object sought to be achieved or the reasons that necessitated the enactment of the new Act other than that it was meant to facilitate marriage between persons professing different faiths.
If one looks at the enacted provisions, especially Sections 19-21 and 21A, Sections 24, 25, 27, 31, 37 and 38, of SMA, there can be no doubt that the sole intention was to enable marriage (as it was understood then, i.e., for heterosexual couples) of persons professing or belonging to different faiths, an option hitherto available, subject to various limitations. There was no idea to exclude nonheterosexual couples, because at that time, even consensual physical intimacy of such persons, was outlawed by Section 377 IPC.
So, while the Act sought to provide an avenue for those marriages that did not enjoy support in society, or did not have the benefit of custom to solemnise, it would be quite a stretch to say that this included same sex marriages. Therefore, the challenge to the constitutionality of the statute, must fail. It is settled by decisions of the court that as long as an objective is clearly discernible, it cannot be attacked merely because it does not make a better classification.
The need for a law or a legal regime that provides or facilitates matrimony of queer couples is similar, to the need to facilitate interfaith marriages which is what drove the Parliament to enact the SMA.
The next question urged is that the passage of time, has rendered the exclusion of queer couples, the benefit of SMA, discriminatory. This line of argument, is based on this court’s reasoning that with passage of time, a classification which was once valid, could become irrelevant, and insupportable, thus discriminatory.
In all the judgments cited by petitioners, the court was able to discern or find that a classification, made at an earlier point in time, had lost its relevance, and operated in a discriminatory manner. In some circumstances, rather than declaring the entire law void, this court “read down” the relevant provision to the extent the statute could be so read.
In the present case, the petitioner’s arguments with respect to “reading down” provisions of the SMA are insubstantial. The original rationale for SMA was to facilitate inter-faith marriages. That reason is as valid today as it was at the time of birthing that law. It cannot be condemned on the ground of irrelevance, due to passage of time. It would be useful to recall principle (9) of the opinion in Re Special Court’s Bill (supra). The classification was primarily not between heterosexual and non-heterosexual couples, but heterosexual couples of differing faiths.
All its provisions are geared to and provide for a framework to govern the solemnisation, or registration, of the marital relationship, which replicates the status that different personal laws bestow. Since there was no one law, which could apply for couples professing differing religions, the SMA created the governing norms- such as procedure, minimum age, prohibited degree of relationship and forbidden relationships for the male and female spouses respectively (through different schedules); the grounds of divorce, etc. The relevance of SMA has gained more ground, because of increasing awareness and increasing exercise of choice by intending spouses belonging to different faiths.
It cannot be said, by any stretch of the imagination that the exclusion of non-heterosexual couples from the fold of SMA has resulted in its ceasing to have any rationale, and thus becoming discriminatory in operation. Without a finding of that kind, it would not be open to the court to invoke the doctrine of “reading down”.
We, therefore, agree with the reasoning elaborated by the Chief Justice, Dr. Chandrachud, J that the challenge to the SMA fails.
Interpretation of provisions of SMA
The provisions of SMA are incapable of being “reading down”, or interpreted by “reading up” in the manner suggested by the petitioners. We have supplemented the Chief Justice’s conclusions, with further reasoning briefly below.
The petitioners’ efforts have been aimed at persuading this court to interpret the provisions of SMA in a manner that accommodates nonheterosexual couples and facilitates this marriage. Their arguments were centred around reading its specific provisions –
- [Section 2 (b) read with Part I (for a male) and Part II (for a female) (degrees of prohibited relationships),
- Section 4 (c), Section 12, 15, 22, 23, 27(1); 27(1A) (special ground of divorce for wife), 31(1)(iiia) and (2) (special provision for jurisdiction in case of proceeding for the wife),
- 36 and 37 (alimony for the wife), 44 (bigamy)] – which present a dominant underlying heteronormative content.
They argue that this court should adopt a purposive construction of the provisions of SMA, and interpret it in light of this court’s previous decisions in Dharani Sugars and Chemicals Ltd v. Union of India (hereafter, “Dharani Sugars”).
In Dharani Sugars, the challenge was against a new policy introduced by the Reserve Bank of India (RBI). The petitioners contented that there was no authorization under the RBI Act to frame the impugned policy. Although the court acknowledged that new facts can influence the interpretation of existing law, it ultimately upheld the policy based on existing provisions that empowered the RBI to issue such policies.
A careful examination of this judgment would reveal that even though discussion on the interpretation that “unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them” indeed occurred; but, the court also noticed that “this doctrine does not however mean that one can construe the language of an old statute to mean something conceptually different from what the contemporary evidence shows that Parliament must have intended”.
Furthermore, the petitioners relied on the interpretation of this court, in Githa Hariharan v. Union of India, wherein the court construed the word ‘after’ in Section 6(a) of the Hindu Minority and Guardianship Act, 1956 as meaning “in the absence of – be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise” – thus, saving it from the vice of discrimination.
Reliance was also placed on Association of Old Settlers of Sikkim & Ors. v. Union of India where an exemption provision discriminated against Sikkimese women who may have had their names registered in the Register of Sikkim subjects, married non-Sikkimese on or after 1st April, 2008, and excluded them from the benefit. This court held such discrimination to be violative of equality under Article 14 of the Constitution of India.
The principle of purposive interpretation was relied upon by the petitioners to urge that a gender neutral interpretation or use of words which include nonheterosexual couples should be resorted to. This court, in S.R. Chaudhuri v. State of Punjab & Ors remarked that
“The words used may be general in terms but, their full import and true meaning, has to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve.”
The objects of a statute, acquire primacy while interpreting its provisions, if the need so arises. Therefore, in interpretation of any statute or provision, this court, long ago, in Workmen of Dimakuchi Estate v. Management of Dimakuchi Tea Estate underlined that where there are doubts about the meaning of a provision, they “are to be understood in the sense in which they best harmonise with the subject of the enactment” and that popular meanings, or strict grammatical import, may yield to “the subject or the occasion on which they are used, and the object to be attained”.
This object-based interpretation was adopted in several decisions.
This court emphasised in Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. & Ors. that: “Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual.”
In Bank of India v. Vijay Transport & Ors., the court dealt with the plea that a literal interpretation is not always the only interpretation of a provision in a statute and that the court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words used which control the literal meaning of such words.
Interpretation of SMA
The objects that a statute seeks to achieve, are to thus be gleaned not merely from a few expressions, in the statement of objects and reasons (for the statute) but also from the enacted provisions. The provisions and the objects of the SMA (as discussed in the earlier section on discrimination) clearly point to the circumstance that Parliament intended only one kind of couples, i.e., heterosexual couples belonging to different faiths, to be given the facility of a civil marriage.
The petitioners’ argued that the purpose of the SMA was to provide a framework for civil marriages not based on personal law includes same-sex marriages. Yet, structurally, Section 4 (conditions relating to solemnization of special marriages), contemplates marriages between a man and a woman. To read SMA in any other manner would be contrary to established principles of statutory interpretation as discussed in preceding paragraphs. It is also not permissible for the court to ‘read up’ and substitute the words “any two persons” to refer to a marriage between non-heterosexual couples.
Gender neutral interpretation, much like many seemingly progressive aspirations, may not really be equitable at times and can result in women being exposed to unintended vulnerability, especially when genuine attempts are made to achieve a balance, in a social order that traditionally was tipped in favour of cis-heterosexual men. The purpose of terms like ‘wife’, ‘husband,’ ‘man,’ and ‘woman’ in marriage laws (and other laws on sexual violence and harassment as well) is to protect a socially marginalised demographic of individuals.
For instance, women facing violence by their partner have a right to seek recourse under the Domestic Violence Act, which assures- and is meant to assure that they (the victims) are safeguarded and provided relief against such injustice. In fact, provisions in SMA, for alimony, and maintenance (Section 36 and 37) confer rights to women; likewise certain grounds of divorce (conviction of husband for bigamy, rape) entitle the wife additional grounds (Section 27) to seek divorce.
Other provisions such as: Section 2 (b) read with Part I (for a male) and Part II (for a female) enact separate degrees of prohibited relationships; Section 4 (c), uses the terms “husband” and “wife”; Section 12, 15, 22, 23, 27(1), Section 31(1) (iiia) and (2) (special provision for jurisdiction in case of 55 proceeding for the wife), Sections 36 and 37 provide for maintenance and alimony for the wife), Section 44 (Punishment of bigamy).
The general pattern of these provisions – including the specific provisions, enabling or entitling women, certain benefits and the effect of Sections 19, 20, 21 and 21A of SMA is that even if for arguments’ sake, it were accepted that Section 4 of SMA could be read in gender neutral terms, the interplay of other provisions- which could apply to such non-heterosexual couples in such cases, would lead to anomalous results, rendering the SMA unworkable.
Furthermore, if provisions of SMA are to be construed as gender neutral (such as persons or spouses, in substitution of wife and husband) as the petitioners propose, it would be possible for a cis-woman’s husband to file a case or create a narrative to manipulate the situation. Gender neutral interpretation of existing laws, therefore, would complicate an already exhausting path to justice for women and leave room for the perpetrator to victimise them.
A law is not merely meant to look good on paper; but is an effective tool to remedy a perceived injustice, addressed after due evaluation about its necessity. A law which was consciously created and fought for, by women cannot, therefore, by an interpretive sleight be diluted.
In fact, it would do well to remind ourselves what this court had stated, in Delhi Transport Corporation v. DTC Mazdoor Congress (hereafter, “Delhi Transport Corporation”):
“when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it.”
Similarly, in Cellular Operators Association of India v. Telecom Regulatory Authority of India, the court applied the rule of Delhi Transport Corporation (supra) and held that the construction suggested would lead the court “to add something to the provision which does not exist, which would be nothing short of the court itself legislating” and therefore, impermissible.
Lastly, there is no known rule by which a word or group of words, in one provision, can have two different meanings. The effect of the petitioner’s argument would be to say that generally, provisions of SMA should be read in a gender neutral manner (spouse for wife and husband; persons instead of the male and female, etc). Whilst it could in theory be possible to read such provisions in the manner suggested, their impact on specific provisions such as the separate lists for wives and husbands for purposes of age, determining prohibited degrees of relationships, and remedies such as divorce and maintenance, leads to unworkable results.
Most importantly, the court, in its anxiety to grant relief, would be ignoring provisions that deal with and refer to personal laws of succession that are, Sections 19, 20, 21 and 21A. This court cannot look at a text containing words with two optional meanings in the same provision.
As discussed earlier, the words of the statutes have to be read, taking into account the fabric of concepts, rights, obligations and remedies which it creates. Removing or decontextualizing provisions, from their setting and “purposively” construing some of them cannot be resorted to, even in the case of SMA.
Supriya @Supriyo Chakraborty& oth. v. Union of India (2023)
 1983 (2) SCR 165
 1999 (3) SCR 1146
 1974 (1) SCR 771
 (1979) 2 SCR 476
 State Of Gujarat And Another v. Shri Ambica Mills Ltd 1974 (3) SCR 760
 1984 (3) SCR 252
  6 SCR 307
  1 SCR 669
 (2023) 10 SCR 289
 (2001) 7 SCC 126
 1958 SCR 1156
 1987 (2) SCR 1
 [ 1988] 1 SCR 961
 (1990) Supp. 1 SCR 142
 2016 (9) SCR 1