Excerpt from the judgment of Same-Sex Marriage Case (Paragraphs length have been edited)
Before undertaking a study on whether there is a fundamental right to marry, and an obligation on the State to create such an avenue, it is necessary to traverse the brief history of state intervention in social practices including in relation to marriage. These laws were enacted in relation to different subject areas. However, a pattern certainly emerges, on the limited scope of interference.
The social practices resulting in stigma and exclusion of large sections of society, impelled the Constitution framers to frame specific provisions like Article 15(1) and (2), Articles 17, 23 and 24, which was left to the Parliament to flesh out through specific legislation.
This resulted in statutes such as the Protection of Civil Rights Act, 1955, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Bonded Labour System (Abolition) Act, 1976, Immoral Traffic (Prevention) Act, 1956, the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, and their respective amendments. The laws removing barriers which prevented large sections of society from entering into temples and places of public worship, is another example.
In a somewhat similar vein, legislative activity, as aimed at bringing about gender parity through prohibiting prevailing practices that further inequality and sometimes even criminalizing certain customs, resulted in legislations such as the Equal Remuneration Act, 1976 (which guaranteed equal pay for equal work regardless of the sex of the worker), the Dowry Prohibition Act, 1961 as amended subsequently, introduction of provisions in criminal law which gave teeth to such provisions [Sections 498A and 304B of the Indian Penal Code, 1860 (“IPC”), and Section 113A and 113B of the Evidence Act, 1872 which enabled courts to raise presumptions in the trial of such offences].
Other practices aimed at realization of social goals and furthering the mandate of Article 15(3) in respect of children such as the right to free universal education under Article 21A of the Constitution, and the Right to Free Education Act, 2009; The Child Labour (Prohibition and Regulation) Act, 1986; Protection of Children from Sexual Offences Act, 2012, the Juvenile Justice (Care and Protection) Act 2016 (hereafter, “JJ Act”), etc.
In all these, the Parliament or the concerned legislatures donned the role of reformers, and furthered the express provisions of the Constitution, enjoining State action, in furtherance of Articles 15(2), 15(3), 17, 23 and 24.
Regulation of Institution of Marriage
Marriage has historically been a union solemnized as per customs, or personal law tracing its origin to religious texts. Legislative activity, in the personal law field, so far has been largely, though not wholly, to codify prevailing customs and traditions, and regulating them, only where needed. The instances that stand out, are the enactment of the Indian Succession Act, 1925, Hindu Women’s Right to Property Act, 1937, Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, the Indian Divorce Act, 1869 (as amended in 2001), the Muslim Personal Law (Shariat) Application Act, 1937; and the Anand Marriage Act, 1909 (as amended).
These laws mostly codified traditions and customs, which existed, and to an extent, regulated marriages and succession laws. These laws also sought to introduce reforms: for the first time, monogamy was enacted as a norm applicable to all Hindus; likewise, the option of divorce was enacted, together with grounds on which or other remedies (like judicial separation) could be sought.
Further, the minimum age of marriage was also enacted, through provisions in various personal laws, and enforced through the Prohibition of Child Marriage Act, 2006 (which repealed the pre-existing Child Marriage Restraint Act, 1929) – this law applies to all sections of societies.
Existing conditions of women, especially in respect of issues such as maintenance, were considered inadequate even before the Constitution was brought into force. The earliest reform introduced was through the Bengal Sati Regulation, 18291 (by the colonial rulers). This was later followed by the Hindu Widow Remarriage Act, 1856 which enabled re-marriage of Hindu widows.
These enactments pre-date the Constitution, and can be seen as reforms, meant to outlaw abhorrent practices viewed as evil, and needing prohibition, to protect women’s lives; in the case of widow remarriage, it was to enable child and young widows an opportunity to lead lives.
Given the diversity of Hindu traditions and the differing approaches in various schools of law, which prevailed in different parts of the country, it was considered necessary to enact the Hindu Women’s Right to Property Act, 19372 (later with the enactment of the Hindu Succession Act, 1956, some rights were expanded through its provisions ).
For a long time, daughters were treated unequally in regard to succession to the estate of their deceased father; this changed with the enactment of the Hindu Succession Amendment Act, 2005, and the substitution of Section 6, daughters (who were hitherto excluded from succession to any coparcenary properties) became entitled to claim the share that a son was entitled to, in the case of death of a coparcener in relation to ancestral property.
The right to maintenance (pendente lite, as well as alimony) was given statutory force under the Hindu Marriage Act 1955 as well as the Hindu Maintenance and Guardianship Act 1956, for Hindus. All married women and children of their marriage, regardless of their religious or social backgrounds, were enabled to claim maintenance, by virtue of Section 488 of the Criminal Procedure Code, 1898.
This provision was re-enacted, and progressively amended through section 125 of the Code of Criminal Procedure, 1973. This court, in its five-judge decision in Mohd. Ahmad Khan v. Shah Bano Begum (hereafter, “Shah Bano”) upheld the right of Muslim women, including divorced Muslim women to claim maintenance.
However, soon after that decision, Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, which diluted the ruling in Shah Bano (supra) and restricted the right of Muslim divorcées to alimony from their former husbands for only 90 days after the divorce (the period of iddat in Islamic law).
The restriction imposed was however interpreted narrowly, and this court through a Constitution Bench, in Danial Latifi v. Union of India (2001) held that “nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time”.
The Age of Consent Act in 1891, raised the age of marriage from 10 to 12 years. The Child Marriage Restraint Act of 1929 addressed this by prescribing the minimum age of marriage for females to 14 years and for boys to 18 years. The Child Marriage Restraint Act of 1929 (also known as the Sarda Act), was enacted as a result of prolonged pressure from social reform organisations and concerned people who fought against the negative repercussions of child marriage.
The age limitations were later raised to 18 and 21 years old, under the Prohibition of Child Marriage Act, 2006. The practise of marrying off children young, which prevailed before these enactments, was thus, interdicted by legislation.
Similarly, even while exercising personal choice in marriage, these choices are regulated by law – prohibition of marriage of persons related by blood (consanguineous marriages) . Other restrictions such as the requirement to be of “sound mind” to give valid consent or not to be “unfit for marriage and the procreation of children”. If a spouse is “incurably of unsound mind” or on the ground of unsoundness, the other spouse can secure divorce.
Bigamy among Hindus was abolished by enactment of the HMA, in 1955. Reform has been the underlying theme, impelling the state to intervene. The legislative trajectory, and indeed some of the debates that preceded enactment of measures like monogamy and divorce, showed a division of opinion. The first President, Rajendra Prasad, expressed strong sentiments against adopting such “foreign” concepts which were opposed to Hindu society. There were other voices, most prominently, women in public life, who supported the need to empower women.
It can thus, be seen that two kinds of legislations have regulated marriage:
The first, like SMA, HMA, the Hindu Disabilities Removal Act, and the Hindu Widows Remarriage Act, removed barriers, and enabled exercise of meaningful choice, specifically to women.
The second kind of legislation are those which enacted restrictive regulations, essentially to further an orderly society and/or protect women: prohibit bigamy; define minimum age for marriage; child marriage restraint; marriage of individuals within prohibited degrees of relationships, etc. Whereas some restrictions, in a sense codified and recognized existing customs – such as by enacting prohibited degrees of relationships, rule against insanity, rules enabling declaration of nullity or divorce on ground of impotence, etc., – others were meant to further interests of women and children and also enable exercise of choice.
Such reforming and codification, however, did not cover the entire field. For instance, in the field of succession and inheritance, the Hindu Succession Act, 1956 only enacts certain broad features, leaving untouched the rights of various communities and sections of Hindus, to work out their rights in succession to joint family, Hindu Undivided Family and coparcenary property- and this unwritten, uncodified law, (in many cases based on customs and local traditions) is enforced not only in regard to inheritance, but also in the field of taxation.
Likewise, the law accommodates and accords primacy to custom [e.g., Section 2 (d) which states that persons other than Hindus- including Jews, Muslims and Christians who may be following Hindu customs, would continue to do so; Section 7 which spells out the ceremonies of Hindu marriage, also states that they shall be based on “customary rites and ceremonies of either party thereto”; and similarly, customary divorce amongst Hindus is accorded primacy, by Section 29 (2)10].
Neither the Hindu Marriage Act, nor the Hindu Succession Act, apply to members of the Scheduled Tribe communities; the Hindu Adoptions and Maintenance Act, applies to them in a nuanced manner. The Hindu Minority and Guardianship Act, 1956, on the other hand, has a provision similar to the one under the Hindu Minority and Maintenance Act as well as one which excludes members of the scheduled tribe communities.
In the latest three judge bench decision of this court, in Revanasiddappa v. Mallikarjuna(2011) , this court clarified that with the enactment of Section 16 of the HMA, the legitimacy conferred upon children born of void or voidable marriages would be that they are “entitled only to a share in their parent’s property but cannot claim it of their own right as a consequence of which they cannot seek partition during the life-time of their parents”. The court also held that they cannot claim any rights other than what was expressly provided for. Thus, uncodified law and custom was upheld.
Legislative action initiated at different points in time thus were reformatory or meant to effectuate certain fundamental rights. Practices and customs which had resulted in the degradation or diminution of individuals, seen as inconsistent and abhorrent to democratic society, were sought to be eliminated by these laws.
When codification attempts resulted in residual discrimination, the courts stepped in to eliminate and enforce the fundamental rights [Independent Thought v. Union of India & Anr., (hereafter, “Independent Thought”); Shayara Bano v. Union of India & Anr., etc.].
The only legislations which come to one’s mind which in fact created social status or facilitated the status of individuals in private fields are the Special Marriage Act, 1954, the Protection of Women from Domestic Violence Act, 2005 (“DV Act”), and Section 41 of the Juvenile Justice (Care and Protection of Children) Act (which enables adoption amongst members of all faiths and communities). The latter, i.e., the provision enabling adoption was preceded by certain guidelines which facilitated inter-country adoptions.
These guidelines, initially pioneered in the judgment of this court in Laxmi Kant Pandey v. UOI – were accepted. Executive instructions filled in the vacuum to some extent assimilating the guidelines of the court but at the same time the limitation in law that prevented adoption of children from different faiths and backgrounds, persisted. These limitations were finally overridden through the enactment of the Juvenile Justice Act, 2016.
The Protection of Women from Domestic Violence Act, 2005 which was for the purpose of more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family. For the first time, a legal status was given to unmarried couples, which enabled women, subjected to domestic violence, to the right to residence (quite apart from remedies through its provisions).
The culture of the Constitution, thus, has impelled the removal of barriers which hitherto existed. Traditional barriers – such as those based on social practice, and stereotypes such as gender roles, have, through express constitutional provisions like Articles 14, 15 and 16 which shaped legislation (and where this fell short, through judicial intervention), been overcome and in some cases eliminated.
The role of the legislature has been to act as codifier, and in many instances, not enact or codify existing customs or practices, and, wherever necessary, intervene, and in furtherance of Article 14 and 15(3) enact laws. Parliament, has intervened and facilitated creation of social status (marriage) through SMA, and enabled the creation of the institution of adoption, which was available amongst only certain communities.
These, and other legislative interventions, are a result of state interest in reforms or furthering the interests of given communities or persons. For these reasons, we do not particularly subscribe to the characterisation of ‘democratizing intimate zones’ as discussed in the learned chief justice’s draft opinion.
These outcomes were driven by enacted law; furthermore, there was state interest, which impelled regulation of such relationships, as for instance, in ensuring that the minimum age for marriage of girls. Likewise, there is state interest in regulating what kind of relationships, i.e. prohibited degrees of relationship, should be enacted as disqualifications to marriage.
Marital “offences” such as desertion, or “cruelty” [not confined to physical violence or cruelty] are also grounds afforded to spouses, to seek matrimonial remedies. The absence of such legislation would have meant that children of any age, would continue to have been married off, much to the peril of the girl child’s health and life; likewise, the codification and enactment of prohibited degrees of relationships, were meant to further certain public health interests.
Supriya @Supriyo Chakraborty & oth. v. Union of India (2023)