“Age, health and a variety of circumstances may bear on the decision of a heterosexual couple to bear or not to bear children. The inability of queer couples to procreate does not act as a barrier to the entry of queer persons to the institution of marriage just as it does not prevent heterosexual couples who are unable or choose not to procreate.”
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.
In this case, there were 21 Petitions, the grievance of the petitioners (who were members of the LGBTQIA+ community) was not that society discriminates against them in an informal (and invisible) manner. That is a secondary but an equally important stage of how discrimination pans out against a marginalised class.
The petitioners claimed that they are discriminated on a more formal (and visible) level. The petitioners contended that the State through the operation of the current legal regime discriminates against the queer community by impliedly excluding the queer community from a civic institution: marriage.
The petitioners invoked the equality code of the Constitution to seek legal recognition of their relationship with their partner in the form of marriage. The petitioners did not seek exclusive benefits for the queer community, which are unavailable to heterosexuals. They claim that the State ought to treat them on par with the heterosexual community.
While analysing the case in his judgment, Justice DY Chandrachud emphasised that queerness is not an urban elite idea, but it is a natural phenomenon. DYC has also said that there is no universal conception of Marriage, CJI discussed the conception of marriage as follows:
There is no universal conception of marriage
There is no universal definition of marriage. Marriage is understood differently in law, in religion, and in culture. Some religions consider marriage a sacrament while others consider it a contract. The law defines the conditions for valid marriage, such as the minimum age required of a party to the marriage, whether both parties have consented to the marriage, or whether the parties are within the degrees of prohibited relationship. A marriage is valid in the eyes of the law as long as the preconditions in the concerned law(s) are satisfied.
A precondition is different from a feature or characteristic in that the former is a prerequisite to a valid marriage whereas the latter is not. The law provides remedies which either party may avail of in the presence or absence of certain features or characteristics.
For example, Section 27 of the SMA provides that a party to a marriage may present a petition for divorce on the ground that the other party is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the IPC. However, it does not automatically render a marriage void if one of the parties is imprisoned.
Once a couple marries, it is left to them to give meaning and content to their relationship. It is their prerogative to determine the characteristics of their marriage and give meaning to their relationship. These aspects of a marriage vary with each relationship, and it is impossible for this Court to authoritatively state that a particular idea of marriage is the only valid understanding of marriage.
This being the case, any attempt to formulate a general and universally applicable definition of marriage is fraught with difficulty. With this qualification, this Court will list some features of marriage that are considered its core components.
Marriage is a voluntary union – of the mind, the body, and the soul. Marriage signifies a deep and abiding commitment to one another and a devotion to the relationship. When two people marry, they intend to be in a life-long relationship.
“Once a couple marries, it is left to them to give meaning and content to their relationship. It is their prerogative to determine the characteristics of their marriage and give meaning to their relationship.”
Both the parties to the marriage provide emotional, financial, and spiritual support to the other. Each is an intellectual partner of the other, as also a friend. Love, respect and companionship are said to be the hallmarks of a successful marriage. Marriage is a gateway into the creation of a family through childbearing and childrearing, although it is not a precondition to the creation or existence of a family. The sole purpose of marriage is not to facilitate sexual relations or procreation, although that may be one of the main motivations for entering into a marriage.
Marriage has emotional and associational components to it, which cannot be relegated to the background even as the sexual component is foregrounded. Important as they are, sexual relations and procreation alone are not the exclusive foundation for marriage.
Although the aspects of marriage discussed in this paragraph are considered to be core components of marriage, the existence of a valid marriage (by legal, religious, or cultural definitions) is not predicated upon the existence of any of these elements. This may be due to choice or circumstance or even some combination of the two.
A married couple may not have biological children because of their age, problems with fertility, or simply because they choose not to. Many couples who choose to have children may do so through assisted reproductive technologies, surrogacy, adoption or other methods which are not traditional. Many married couples may choose not to engage in sexual relations for various reasons.
In some marriages, the couple may not reside in the same home or even city, temporarily or permanently. The emotional, financial, or spiritual contribution to a marriage may vary with each couple. While the law identifies certain conduct or behaviour as grounds for divorce they do not render a marriage void in and of themselves.
The marriage continues to be a marriage, even if it is atypical or runs contrary to the notion of an ‘ideal marriage’ that a person may have. This is not only true for the legal conception of marriage, but also of the cultural and social conceptions. Society continues to consider a marriage to be a marriage even if, say, a married couple decides to live apart because they work in different cities or countries or if they do not have children.
This is equally true of the other facets of marriage discussed in this paragraph. The exercise of defining the content of the institution of marriage as well as delineating its purpose is a subjective exercise undertaken by the couple in question.
The respondents suggested that an ‘ideal marriage’ has many or all of the components discussed in the preceding paragraphs. This argument acknowledges that many of these components are not necessarily present in the institution of marriage but places them in the realm of normative or aspirational values.
In other words, the argument is that marriages ought to fit with these components even if a given marriage does not fit with them. The answer to this argument is straightforward – there is no legal basis to elevate these personals ideals to the status of normative requirements.
To the contrary, every effort must be made to practice and inculcate constitutional ideas – the ideals of human dignity, liberty, equality, and fraternity – in our everyday lives. These constitutional ideals demand that we respect the autonomy and dignity of each person. We must respect their decisions and choices.
It is only when a particular decision or action is contrary to the law or an affront to constitutional values that this Court may step in. In all other instances, citizens are empowered to define the content of their lives and find meaning in their relationships.
Different religions may have different understandings of marriage, for instance, whether marriage is a sacrament or a contract. There may be diverse social constructs of marriage within a religious grouping. Similarly, there may be different conceptions of marriage within a particular community.
This is best understood with the aid of an example. Section 5(iv) of the HMA stipulates that a marriage may be solemnised between two persons if they are not within the degrees of prohibited relationship, unless a custom or usage governing the parties permits their marriage.
One of the degrees of prohibited relationship is an uncle and his niece. In many communities, an uncle cannot marry his niece because the community does not have a custom or usage which permits such a marriage. Yet, in many other communities such a marriage is customary and therefore permitted in terms of the HMA. The customs of many tribes of the country similarly permit an uncle to marry his niece.
Many tribal communities are governed by their own customs and usages. Such marriages are valid and recognised by tribal customs although they are not recognised by the law governing other communities in the country. The solemnisation of a marriage, too, takes different forms in different communities. What may be customary, and therefore not only accepted but encouraged in a particular religion or community may not have a parallel in another religion or community.
While each individual is entitled to their own conception of marriage, a universal conception of marriage, its purpose, and content would be difficult to encapsulate in an exhaustive enumeration. Consequently, the argument advanced by the respondents that the very conception of marriage does not permit queer individuals to marry cannot be accepted.
Each religion, each community, each couple defines the institution of marriage for itself. The queer community is just as much a community as any other, though perhaps not in the traditional sense in which the term is used with respect to customs which govern marriage.
There is no gainsaying the fact that procreation and the human desire to have a family constitute significant characteristics of the institution of marriage. Yet, even heterosexual couples may find themselves unable or unwilling to procreate.
Age, health and a variety of circumstances may bear on the decision of a heterosexual couple to bear or not to bear children. The inability of queer couples to procreate does not act as a barrier to the entry of queer persons to the institution of marriage just as it does not prevent heterosexual couples who are unable or choose not to procreate.
Viewing marriage solely through the lens of sexual relations or procreation is a disservice to married couples everywhere including heterosexual couples because it renders invisible the myriad other aspects of a marriage as an emotional union. It relegates the aspects of companionship and love in a marriage to an inferior status. Such a conception of marriage is narrow and factually incorrect.
The conception of marriage is not static
The understanding of marriage – socially, culturally, and legally – has undergone a sea change over time. Some changes which are specific to India are discussed in this segment. This segment is not an exhaustive discussion of the changes to the institution of marriage in India. It illustrates some changes in service of the point that the conception of marriage is not static.
I. Sati
Although far from a universal practice, sati was once permitted and practiced in India. This abhorrent practice was inextricably intertwined with the institution of marriage because a widow was either tied to the funeral pyre of her deceased husband or pressed upon to jump into it.
Various rules and regulations restricted and later, barred the practice in the colonial era. In modern-day India, the Commission of Sati (Prevention) Act 1987 criminalizes attempts to commit sati, the abetment of sati, as well as its glorification.
II. Widow Remarriage
In accordance with long-standing custom, women (mostly from the dominant castes) were not permitted to remarry if their husbands died. In many communities, the heads of widows were shaved and they were prohibited from wearing jewellery or colourful clothes. This was considered a ‘living death.’
Many (including Mahatma Jyotirao Phule, the Brahmo Samaj, Ishwar Chandra Vidyasagar, and Tarabai Shinde) attempted to reform the institution of marriage to permit widows to remarry. Civil society offered tremendous resistance to their attempts at reform. Ultimately, the Hindu Widows’ Remarriage Act 1856 was enacted, permitting widows to remarry.
III. Child marriage and the age of consent
A discussion of the history of marriage in India would be incomplete without reference to child marriage and the legal age of consent. Child marriage was widespread in most religions and communities. The age of consent for girls was fixed at ten years in 1860.
In 1890, a thirty-five year old man called Hari Mohan Maity caused the death of his ten year old wife Phulmoni Das (also known as Phulomonee Das) through violent sexual intercourse with her.
While this would be considered rape and / or aggravated penetrative sexual assault of a child by prevailing legal standards, the concerned court ruled that Hari Mohan Maity had a legal right to engage in sexual relations with Phulmoni Das because she was above the age of consent at the time. The age of consent for girls was then raised to twelve.
Decades later, the Child Marriage Restraint Act 1929 raised the minimum age of marriage for girls from twelve to fourteen. In 1949, the criminal law of the country stipulated that the age of consent for girls was fifteen years. The HMA set the minimum age of marriage at fifteen for girls and eighteen for boys. In 1978, the HMA was amended to raise the minimum age of marriage to eighteen for girls and twenty-one for boys.
The Prohibition of Child Marriage Act 2006 provided that child marriages would be voidable at the option of the contracting party who was a child at the time of the marriage. Further, this statute criminalizes the act of performing, conducting, directing, abetting, promoting or permitting a child marriage.
The Protection of Children from Sexual Offences Act 2012 was enacted about a decade ago. It is a child-specific legislation which inter alia criminalizes sexual abuse in its various forms. A “child” is defined as any person below the age of eighteen years.
In Independent Thought v. Union of India(2017), this Court was confronted with the inconsistency between the POCSO Act which criminalized sexual relations with a child and Exception 2 to Section 375 of the IPC which provided that sexual intercourse by a man with his wife was not rape if the wife was above fifteen years of age.
As a consequence of this inconsistency, a person could have been guilty under the POCSO Act but not under Section 375 of the IPC. This Court held that Exception 2 was violative of Articles 14, 15 and 21 of the Constitution and was an affront to constitutional morality.
The Court read down Exception 2 as exempting a man from the offence of rape if his wife was above the age of eighteen. Currently, it is a punishable offence for a man to have sexual intercourse with a child, regardless of whether that child is his wife. It is evident that the law governing marriage has come a long way from Phulmoni Das’ time.
IV. Other violence in marriage
Acts which were once considered the norm in a marriage are no longer countenanced by the law. The giving and taking of dowry, which was and continues to be prevalent in most communities, was criminalised by the enactment of the Dowry Prohibition Act 1961. Prior to its enactment, there was no penalty in law for demanding, giving, or accepting dowry.
The family of the bride was often expected to pay large sums of money or present “gift” items of value to the groom or his family, as a condition of the marriage. The maternal families of innumerable women are harassed and violence is inflicted upon them, in relation to demands for dowry.
Parliament inserted Section 498-A of the IPC in 1983. Section 498-A criminalizes the act of a husband or his relative subjecting her to cruelty, as defined in the section. In many cases, the matrimonial families (the husband, the mother-in-law, the father-in-law, and other relatives) murdered the woman because of what they viewed as insufficient dowry or unmet demands for dowry. This led to Parliament amending the IPC in 1986 to include Section 304-B which criminalises ‘dowry death.’
These provisions of law did not, however, adequately account for genderbased violence in a marriage which are unconnected to dowry. Domestic violence was (and continues to be) prevalent. About two decades ago, the Protection of Women from Domestic Violence Act 2005 was enacted to protect the rights of women who were survivors or victims of domestic violence, either by their husbands or the relatives of their husbands. Prior to the enactment of the law, intimate partner violence which women are generally subject to was not criminalized.
V. Inter-caste and interfaith marriage
Inter-caste and interfaith marriages were uncommon in the colonial era and established customs or usages did not govern such marriages. Then, as now, society subjected those who entered into inter-caste and interfaith marriages to discrimination and violence. There was initially no legal framework in place which governed such marriages. The Special Marriage Act 1872 was enacted to enable the solemnisation of marriages independent of personal law.
If two people belonging to different religions wished to marry, they were each required to renounce their respective religion in order to avail of its provisions. The law at the time did not supply a framework in terms of which two persons belonging to different religions could retain their association or spiritual connection to their respective religions and still marry one another.
Parliament was conscious of the limiting and restrictive character of the Special Marriage Act 1872 and enacted the SMA in 1954, which was a more permissive legislation in that any two persons could marry, without having to repudiate their respective religions. By stipulating that “a marriage between any two persons may be solemnized under this Act” the SMA also set out a mechanism for inter-caste marriages to be solemnized independent of personal law.
The families or relatives of couples who entered into inter-caste or interfaith marriages would frequently inflict violence upon them, even to the extent of brutally murdering them. Their communities would either ordain or participate in these atrocities. Such murders are colloquially referred to as “honour killings” and are more accurately termed as caste-based murders. It is a most unfortunate truth that this culture of violence persists to date.
Couples who face this opprobrium have knocked on the doors of this Court inter alia seeking protection from their families and others who oppose their relationship and this Court has otherwise been seized of cases arising from violence in this context.
In Shakti Vahini v. Union of India, (2018) this Court took note of the violence against couples in inter-caste and interfaith marriages. It directed the state machinery to take preventive as well as remedial measures to protect such couples who wished to marry or who were recently married.
It is beyond dispute that couples in inter-caste and interfaith relationships have historically been forced to contend with and continue to contend with enormous difficulty while solemnizing their unions. As evident from the discussion in the preceding paragraph, large sections of society were and are fiercely opposed to such marriages.
The opposition stems, at least in part, from a belief that a marriage ought to consist of two individuals from the same religion or caste. Parliament chose to enact the SMA despite the opposition to atypical marriages and has not chosen to repeal the SMA or otherwise exclude the celebration of intercaste marriages under personal laws despite continuing hostility from the communities of such couples.
Parliament has presumably done so because it is cognizant of the fact that the exercise of fundamental rights is not contingent upon the approval of the community. Similarly, this Court has carried out the constitutional mandate by protecting the rights of individuals and couples in the face of considerable opposition from their families. In a democracy, certain rights in here in all individuals.
If the exercise of rights was contingent upon everyone else or, at least a substantial portion of the community approving of such exercise, we would be doing a disservice to a constitutional democracy. The Constitution does not require individuals to first convince others of the legitimacy of the exercise of constitutional rights before they exercise them.
“If the exercise of rights was contingent upon everyone else or, at least a substantial portion of the community approving of such exercise, we would be doing a disservice to a constitutional democracy. The Constitution does not require individuals to first convince others of the legitimacy of the exercise of constitutional rights before they exercise them.”
VI. Divorce
Section 10 of the Indian Divorce Act 1869, which is applicable to Christians, previously permitted the husband to file a petition for divorce on the ground that his wife was guilty of adultery. However, the wife was permitted to file a petition for divorce on the ground that her husband was guilty of adultery only in conjunction with certain other grounds (such as conversion to another religion or bigamy).
In Mary Sonia Zachariah v. Union of India,[1] the Kerala High Court inter alia struck down a part of Section 10 and permitted Christian women to seek divorce on the ground of adultery alone. Parliament amended the Indian Divorce Act 1869 in 2001 by substituting Section 10 with a provision that made various grounds of divorce (including adultery) available to both the husband and the wife, equally. It also introduced Section 10A, which permitted Christian marriages to be dissolved by mutual consent, for the first time.
In terms of Hindu customary law, certain communities permitted divorce whereas others did not. The HMA extended the right of divorce to all Hindus when it was enacted in 1955. In 1976, Section 13B was introduced in the HMA, permitting Hindus to dissolve their marriage by mutual consent, for the first time.
In Shilpa Sailesh v. Varun Sreenivasan,[2] this Court held that it has the authority to grant divorce when there is a complete and irretrievable breakdown of marriage notwithstanding the opposition of one of the parties to the marriage to its dissolution.
Islamic customary law permitted divorce in certain situations and through certain modes. One of the modes was talaq-e-biddat or triple talaq by which the husband could instantly, irrevocably, and unilaterally divorce his wife. In Shayara Bano v. Union of India,(2017) this Court held that the practice of severing the marital bond through the mode of talaq-e-biddat was unconstitutional.
VII. The implications of the discussion in this segment
Mahatma Jyotirao Phule, Ishwar Chandra Vidyasagar, Pandita Ramabai, Tarabai Shinde, Raja Ram Mohun Roy and countless others voiced their opposition (to varying degrees and to varying effects) to one or the other practice discussed in this segment.
Their views were met with fierce opposition on the ground that the religious and cultural values of the subcontinent did not permit a departure from tradition. In some cases, the opposing groups relied on scriptures to justify their respective stances.
When Dr. B R Ambedkar introduced the Hindu Code Bill, many opposed the provision for divorce on the ground that the Hindu religion did not envisage divorce because it was a sacrament. It is seen that there are competing understandings of the institution of marriage at every stage of its evolution. Yet, the understanding which was grounded in justice and the rights of the people has prevailed.
Injustice in the law in relation to the institution of marriage (in the form of demands for dowry, dowry death, or child sexual abuse) or as incidental to the institution (as in the case of sati or widow remarriage) is slowly but surely in the process of being eradicated. While these practices were once permitted and encouraged, they are currently not only frowned upon but also criminalized.
This walk through history is not an attempt by this Court to take on the mantle of historians. The discussion demonstrates that the institution of marriage has not remained static or stagnant. To the contrary, it is change which characterizes the institution. All social institutions transmogrify with time and marriage is no exception. From sati and widow remarriage to child marriage and inter-caste or interfaith marriages, marriage has metamorphosed.
The institution as we know it today would perhaps be unrecognizable to our ancestors from two hundred years ago. Despite vehement opposition to any departure from practice, the institution of marriage has changed. This is an incontrovertible truth. Here, it is also important to take note of the fact that these changes were brought about largely by acts of Parliament or the legislatures of the states. While the passage of many laws was preceded by significant social activism, it was the legislature which ultimately responded to the call for change.
Even as Parliament (and in some cases, the courts) expand the liberties of the people to conduct their lives in a manner they see fit (in accordance with law), many sections of society remain opposed to these changes. Regardless of such opposition, the institution of marriage has undergone a sea change. It is therefore incorrect to characterise marriage as a static, stagnant or unchanging institution.
c. The implications of this discussion for the right of queer persons to marry
From the discussion in this segment of the judgment, it is evident that the institution of marriage is built and re-built by societies, communities, and individuals. A universal conception of marriage is not present nor is the conception of marriage static over time.
The only facet of marriage which is constant across religion, community, caste, and region is that the couple is in a legally binding relationship – one which recognizes an emotional bond of togetherness, loyalty and commitment – that is recognised by the law. The law recognises the commitment that the couple has for one another by regulating the institution of marriage and conferring certain rights and privileges on them.
In Shafin Jahan v. Ashokan K.M (2018), a three-Judge Bench of this Court held:
“84. … Our choices are respected because they are ours. Social approval for intimate personal decisions is not the basis for recognising them. Indeed, the Constitution protects personal liberty from disapproving audiences.”
The consequence of the judgment of this Court in National Legal Services Authority v. UOI (2014) and Navtej Singh Johar v. UOI (2018) is that the members of the queer community are no longer second-class citizens of our country. Their individual and group rights are on par with any other citizen of this country. Their gender identity or sexual orientation cannot be a ground on which they are discriminated against.
Mr. Tushar Mehta, the learned Solicitor General, submitted during the course of his arguments that two persons from the LGBTQ community have the right and the liberty to celebrate their union and label the union with any term they see fit, including ‘marriage.’ The Union of India does not, however, wish to accord legal recognition to such ceremonies and unions. If the marriages of queer people were to be recognized by law enacted by Parliament, it would be the next step in its progression.
Reference
Supriya @ Supriyo Chkroborty & oth. v. UOI (2023)
[1] 1995 SCC OnLine Ker 288
[2] 2023 SCC OnLine SC 544