(Civil) No 12 of 2023 With Writ Petition (Civil) No 1020 of 2022 With Writ Petition (Civil) No 1105 of 2022 With Writ Petition (Civil) No 1141 of 2022 With Writ Petition (Civil) No 1142 of 2022 With Writ Petition (Civil) No 1150 of 2022 With Writ Petition (Civil) No 159 of 2023 With Writ Petition (Civil) No 129 of 2023 With Writ Petition (Civil) No 260 of 2023 With T. (Civil) No 6 of 2023 With Writ Petition (Civil) No 319 of 2023.
The terms ‘LBGTQ’ and ‘queer’ are used interchangeably and as umbrella expressions to capture the various sexual orientations and gender identities that exist. The term ‘union between queer persons’ or similar terms have been used to mean relationship between parties where one or both of them have an atypical gender identity or sexual orientation. By criminalizing sexual behavior of homosexual and gender non-conforming persons, the State stripped them of their identity and personhood. In NALSA (supra), this Court held that the state must recognize persons who fall outside the male-female binary as ‘third gender persons’ and that they are entitled to all constitutionally guaranteed rights.
It held that: (i) Section 377 violated Article 14 because it discriminated between heterosexual persons and non-heterosexual persons, although both groups engage in consensual sexual activities ; (ii) While Article 14 permits reasonable classification based on intelligible differentia, a classification based on an ‘intrinsic and core trait’ is not reasonable; Section 377 classified individuals on the basis of the core trait of ‘sexual orientation’ ; (ii) Article 15 prohibits discrimination based on ‘sex’ which includes within its meaning sexual orientation as well and Section 377 indirectly discriminated between heterosexual persons and the LGBTQ community based on their sexual orientation; and (iii) Section 377 violated Article 19(1)(a) because Section 377 inhibited sexual privacy. The Court declared that the members of the LGBTQIA+ community are entitled to the full range of constitutional rights including the right to choose whom PART A to partner with, the ability to find fulfilment in sexual intimacies, the benefit of equal citizenship, and the right not to be subject to discriminatory behaviour. Despite the de-criminalization of queer relationships and the broad sweep of the decision in Navtej, members of the queer community still face violence and oppression, contempt, ridicule in various forms, subtle and not so subtle, every single day. The discrimination faced by the LGBTQIA+ community in various forms is, in so many ways, a product of social morality as much as it is a product of the lack of effort from the State to sensitize the general public about issues concerning queer rights. Despite this Court recognizing that sexual orientation is a core and innate trait of an individual, the members of the queer community continue to face economic, social and political oppression in both visible and invisible ways. All the services provided by the State including public washrooms, security check points, and ticket counters at railway stations and bus depots are segregated based on a strict gender binary. In another study conducted by the National Human Rights Commission (NHRC) it was revealed that seventy-five percent of transgender persons in the National Capital Region and eighty-two percent of transgender persons in Uttar Pradesh never attended school or dropped out before tenth grade. It begins with family members rejecting the gender identities of their transgender children or consenting to “gender normalizing surgeries” for their intersex children (that is, those who have reproductive or sexual anatomy that does not fit into an exclusive male or female sex classification) without giving the child an opportunity to choose for themselves. Another woman recounted that after she disclosed her sexual orientation to her family, her movements were constantly monitored and even if she went away from home for an hour, her phone would be traced with the assistance of the Station House Officer. A trans-woman lodged in a prison housing two thousand male inmates recounted the violence that she faced during her imprisonment.
In one such case, the police colluded with the family despite court orders granting protection to a couple from the queer community. However, in spite of the decision of this Court in NALSA (supra) and the provisions of the Transgender Persons Act, members of the transgender community continue to be denied equal citizenship. The petitioners contend 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.
This Court’s existing jurisprudence on LGBTQIA+ rights declares that LGBTQIA+ persons are entitled to dignity, equality, and privacy, which encompasses the fundamental right of LGBTQIA+ persons to marry a person PART B of their choice. The exclusion of LGBTQ couples from the SMA has no rational nexus with this object; f. Denial of the right to marry amounts to a deprivation of the entitlement to full citizenship as well as a denial of the right to intimacy; k. The SMA ought to be read in a gender-neutral manner. The SMA is unconstitutional because it discriminates on the grounds of sexual orientation by preventing same-sex couples from solemnizing their marriages.
The exclusion of same-sex couples from the SMA is violative of Article 14 of the Constitution. The exclusion of same-sex couples from the SMA is violative of Article 19 of the Constitution. The exclusion of same-sex couples from the SMA is violative of their right to dignity and is therefore violative of Article 21 of the Constitution. In the alternative, Section 4(c) may be read as prescribing the minimum age as eighteen for both parties in the case of a lesbian relationship and twenty-one for both parties in the case of a gay relationship.
References to “bride” and “bridegroom” in Schedules III and IV must be read as “bride or bridegroom”, as the case may be, and shall not be construed to impose any disabilities based on gender, sexual orientation, or sexual identity of the parties. The SMA itself was enacted contrary to the cultural and social understanding of marriage which prevailed at the time. The conditions for the solemnization of a marriage under the SMA need not, therefore, conform to the cultural, social, or religious understandings of marriage; m. The petitioners have a fundamental right to marry a person of one’s own choice under Articles 14, 15, 19, 21 and 25 of the Constitution, and any exclusion or discrimination, as incorporated in Section 4(c) and other provisions of the SMA, is ultra-vires the Constitution. The Union of India has sought to argue that only Parliament can grant a new ‘socio-legal status of marriage’ to LGBTQ persons, after undertaking extensive consultations and eliciting views from every part of the nation. International covenants to which India is a signatory including the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights enjoin a duty upon the state to not interfere with the right of a person to marry and have a family in terms of their own choice PART B as well as to protect the familial rights of all persons without discrimination on the basis of inter alia sexuality, race, and religion; c. A necessary corollary of the right to self-identify gender is to be able to express personal preference in terms of choice of partner, and, therefore a marriage entered into by a transgender person must be fully recognised by the State ; e. If the Union of India’s argument is taken to be correct, it would lead to a situation where a transgender heir of a person who has died intestate would not be able to inherit the property, even if they happen to be the sole heir; l.
The FMA travels with the citizen to a foreign jurisdiction to extend its protection by recognizing the citizen’s marriage contracted under foreign law, or by allowing a citizen to solemnize their marriage under Indian law even when they are abroad. The object of the FMA is to extend the protection of the Indian Constitution and its laws to a citizen abroad regardless of who they choose to marry and under whichever law they choose to do so, to provide for maximum international validity of a marriage, and in adopting the framework of the SMA, to provide for a uniform, civil and secular law to govern foreign marriages. The failure of the SMA to recognize same-sex marriages violates Articles 14 and 15 of the Constitution because it fails the reasonable classification test, is manifestly arbitrary, and discriminates based on gender identity and sexual orientation; d. The failure of the SMA to recognize same-sex marriages violates Article 19(1)(a) of the Constitution because sexuality, gender expression, and marriage are forms of expression; e. Reliance was placed on National Legal Services Authority (supra); PART B g. There is no traditional bar on marriage between non-heterosexual persons. The denial of the right to marry to persons based on their gender identity is a denial of the right to dignity, personal autonomy, and liberty under Article 21 of the Constitution; d. The provisions of SMA, insofar as they do not recognize same-sex marriages, are unconstitutional as being violative of Articles 14, 15, 19, 21 and 25 of the Constitution.
There was vociferous opposition to the Hindu Code Bill, which was later enacted into four distinct legislations – the Hindu Marriage Act 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act 1956, and the Hindu Adoptions and Maintenance Act 1956. Analysis under Article 13 does not extend to whether or not a statute or a system of law is workable after it is read up or after certain words or phrases are read in to save it from being unconstitutional. Non-recognition of ‘atypical families’ or ‘chosen families’ beyond constraints of marriage, blood or adoption violates Articles 14, 15, 19 and 21; PART B c. It would be manifestly arbitrary and contrary to Article 14, for the law to accord a larger ambit for registration of marriages to an OCI than to a citizen of the country married in a foreign jurisdiction, and to the extent of the inconsistency a harmonious construction of the FMA with the Citizenship Act is required; d. The requirement of proof of a ‘marital relationship’ by a ‘married couple’ for the purpose of joint adoption under Regulations 5(2)(a) and 5(3) is beyond the remit of Section 57 of the JJ Act that extends joint adoption to relationships that are ‘marriage like’ including marriages between same-sex couples solemnized overseas; d.
Article 21 protects the right to found a family and the right to a meaningful family life for all persons including LGBTQ persons. Denying LGBTQ couples the right to marry violates Article 14 qua them and their children; d. Section 2(49) of the JJ Act defines the term “prospective adoptive parents” to mean “a person or persons eligible to adopt a child as per the provisions of section 57.” Section 2(49) does not require the prospective adoptive parents to be heterosexual. If recognition is accorded to marriage by queer persons, they will be protected from so-called “conversion therapies” which attempt to “convert” the sexual orientation of queer people into a heterosexual orientation as well as forced marriages; b. A minimum age at which persons of the “third gender” may marry may be read in, in Section 4(c) of the SMA. Marriage is conceived to be a union between heterosexuals across all laws on marriage and procreation is an essential aspect of marriage; c. Since the purpose of SMA is to regulate heterosexual marriages, this Court cannot read words into the enactment to expand its purview beyond what was originally conceptualized; f. From a societal perspective, marriage contributes towards the proliferation of future generations for the sustenance of humankind; b. In these cases, the right to marry which is conferred by the legislature to inter-caste and inter- religious couples was violated by State and non-State actors; PART B d. It would become impossible to deny legal recognition to practices such as incest or polygamy if non-heterosexual couples are granted the right to marry; i. In non-heterosexual unions, the child born out of surrogacy or artificial reproductive technology or adopted by the couple would feel the absence of either a father or a mother. The object of the SMA is to grant (and regulate) legal recognition to inter-faith and inter-caste unions of heterosexual couples. Thus, this Court must not approach this issue from a “linear reductionist perspective.” Further, the argument of the petitioners that the SMA is unconstitutional PART B because it is excludes a class based on innate characteristics is erroneous; vi. PART B Reading the provisions of the SMA in a gender-neutral manner would impact the interpretation of the provisions of the ISA as well; E. By declaring that non-heterosexual couples have a right to marry, this Court would be granting legal recognition to a new social relationship. The term ‘spouse’ in Section 7A of the Citizenship Act 1955 cannot be read in a gender neutral manner. However, if the exercise of the right to privacy has a public dimension, the State must regulate the exercise of the right in the larger interest of the community. While it may not be necessary to reach public consensus on social issues, it is still important to have some form of discourse on the issue be it through law commissions, referendums, bills in the legislature, or even High Court decisions; f. This Court instead of limiting its judgment to the reliefs sought by the petitioners, must also address the following issues: PART B (i) Whether the LGBTQIA+ community, being a sexual minority, is entitled to be protected even in the absence of a law; (ii) The recognition of the hindrances faced by LGBTQIA+ unions and the procedure to resolve the difficulties; and (iii) The necessity of administrative procedures and guidelines recognizing that sexual orientation is a physiological phenomenon and that same sex unions must not be discriminated against. The statute is not underinclusive for impliedly excluding non-heterosexual unions from its purview because Parliament did not contemplate the inclusion of non-heterosexual marriages at the time of enactment. Even if this Court finds that the Constitution grants a right to legal recognition of non-heterosexual unions, a new legislative regime regulating non-heterosexual marriages must be introduced to respond to the unique challenges they face; and m.
This Court has recognised the right to marry in KS Puttaswamy (9J) (supra), Shafin Jahan (supra), Shakti Vahini (supra) and Navtej (supra). However, only Justice Nariman’s opinion in Navtej (supra) held that non-heterosexual couples also have a right to marry; b. Article 21 guarantees that every child will have the best upbringing. Only thirty-four of the one hundred and ninety-four countries have recognised marriage between non-heterosexual individuals. The principle of non-discrimination in Article 14 and 15(1) does not mandate that marriage must be organised and recognised in a uniform manner. It is for the legislature to decide if non-heterosexual unions must be legally recognised, and what benefits and entitlements must be conferred to the union; e. The observation in Puttaswamy (9J) (supra) that the State has a positive obligation to provide legal protection to enable the exercise of choice was limited to the specific context of data protection. Atamaram Nadkarni, senior counsel appearing for an intervenor (Akhil Bharatiya Santiti) submitted that the SMA is interwoven with personal law. Since the FMA only includes heterosexual unions, a non-heterosexual marriage solemnised in a foreign country cannot be recognised in India. MR Shamshad, learned counsel appearing for an intervenor submitted that a declaration that non-heterosexual couples have a right to marry would conflict with the tenets of religion where marriage is considered a heterosexual union. Priya Aristotle, learned counsel appearing for an intervenor submitted that granting non-heterosexual couples parental rights would affect the children of heterosexual couples. It was submitted that granting legal recognition to non-heterosexual marriages may dilute the disciplinary code in the army, the navy, and the air force, would create conflicts in the workplace over personal and religious beliefs, and would raise concerns about shared facilities such as communal showers and shared rooms. The petitioners in this batch of petitions have made certain general prayers, in addition to the prayers specific to the facts of their case. 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; PART C c.
Regulations 5(2)(a) and 5(3) read with Schedules II, III and VI of the Adoption Regulations are unconstitutional and ultra vires the JJ Act insofar as they exclude LGBTQ couples from joint adoption; o. An unmarried person can nominate “any person(s)” to act as their nominee or next of kin, irrespective of whether such person is a “guardian, close relative or family member,” with respect to healthcare decisions in case of incapacity such as the execution of Advance Directives and assigning any legal right, interest, title, claim or benefit accrued to the person; t. All marriages between couples in which either one or both partners are transgender or gender non-conforming or who otherwise do not identify with the sex assigned to them at birth, may be solemnized under matrimonial statutes regardless of their gender identity and sexual orientation. Article 32 vests this Court with the power to enforce the rights in Part III of the Constitution 61. The right to approach this Court for the enforcement of the fundamental rights embodied in Part III is itself a fundamental right by virtue of Clause (1) of Article 32.
First, Clause (2) provides this Court with the power to issue “directions, orders, or writs,” which indicates that this Court may mould the relief according to the requirements of the case before it and that it is not constrained to a particular set of cases in which a particular relief or set of reliefs may be granted. H V Kamath was of the opinion that it was unwise to particularize the writs which this Court ought to issue, and that this Court should have the power to issue any directions it considered appropriate in a case.64 In service of this idea, he moved an amendment to substitute clause (2) of the provision which is now Article 32. B R Ambedkar underscored that this Court had been endowed with wide powers of a general nature: PART D The power of this Court to do justice is not, therefore, limited either by the manner in which Article 32 has been constructed or by any part of the Constitution. In other words, the functional understanding of the separation of powers demands that no arm of the state reigns supreme over another. The doctrine of separation of powers cannot, therefore, stand in the way of this Court issuing directions, orders, or writs for the enforcement of fundamental rights. Judicial review is all about adjudicating the validity of legislative or executive action (or inaction) on the anvil of the fundamental freedoms incorporated in Part III and on the basis of constitutional provisions which structure and limit the exercise of power by the legislative and executive arms of the State. In the exercise of the power of judicial review, the Court does not design legislative policy or enter upon the legislative domain. The distinction between law-making and adjudicating the rights of the people by interpreting the Constitution and enforcing these rights, as required by Article 32, cannot be forgotten. The decisions of this Court in Common Cause (supra) and Vishaka (supra) are significant because this Court issued directions for the enforcement of fundamental rights in the absence of a law which was impugned before it. Parliament being sovereign in England, the courts of England do not have the power to strike down a statute as being contrary to its basic law.
The Supreme Court of the United PART D States of America established its power of judicial review in Marbury v. State of Madras, this Court held that there was no remedy in the US which was analogous to the one provided by Article 32 of the Constitution of India. The argument that the decision of the elected branch is democratic and that of the judicial branch is not is premised on the principle of electoral representation. Framing the argument on the legitimacy of the decisions of this Court purely in terms of electoral democracy ignores the Constitution itself and the values it seeks to engender. When the people of India entered into a social contract in the form of a Constitution, they chose the conception of democracy which not only focused on rule by elected bodies but also on certain substantive values and on institutional governance. Courts contribute to the democratic process while deciding an issue based on competing constitutional values, or when persons who are unable to exercise PART D their constitutional rights through the political process knock on its doors. In India, persons with a gender queer identity who do not fit into the binary of ‘male’ and ‘female’ have long been known by different names including hijras, kothis, aravanis, jogappas, thiru nambis, nupi maanbas and nupi maanbis. Many men in such unions have made their natal families aware about their relationship with their partner, and in some cases, the hijras would sometimes meet their partner’s natal family. The respondents, including the Union of India, have contended that homosexuality and queer gender identities or transgenderism are predominantly present in urban areas and amongst the elite sections of society.
The incidence of queerness amongst the rural and working-class communities has been documented in academic scholarship as well as newspaper reports. Another petitioner in the same case grew up in Varanasi, Uttar Pradesh and states that she knew that she was a lesbian from a young age; b. Another petitioner in the same case happens to be Dalit. PART D In her case, too, circumstance forced her to become a sex worker. Her book titled Love’s Rite: Same-Sex Marriage in India and the West records numerous instances of queer unions and partnerships in India: a. Also in 2004, a twenty-one year old Christian woman and a twenty-three year old Hindu woman from a southern state in India declared their life-long commitment to one another after a tabloid alleged that they were lesbians; g. Two women who happened to be Adivasi married according to the customs of their tribe, in a small village in Koraput district, Orissa; b.
In its attempt to address whether homosexuality is a ‘western’ concept or is restricted to the socioeconomically privileged classes, it asserts that the queer community is not a “ coherent, easily definable group.” The report details the various lived experiences of gay men and lesbian women, information regarding which was collected by interviewing them. They each left behind notes to their families in which they explained that they wished to die because it was impossible for them to live together. The discussion in this segment has not scratched the surface of the rich history of the lives of LGBTQ persons in India, which continue into the present. It is not just the English-speaking man with a white-collar PART D job who lives in a metropolitan city and is otherwise affluent who can lay claim to being queer but also (and equally) the woman who works in a farm in an agricultural community. The experiences of queer persons may also be more visible in urban spaces because such persons have greater access to the various resources required to make one’s voice heard.
The rise of Victorian morality in colonial India and the reasons for the re-assertion of the queer identity 95. Stories, history, myths, and cultural practices in India indicate that what we now term ‘queerness’ was present in pre-colonial India. The native way of life gradually changed with the entry of the British, who brought with them their own sense of morality. Although the Criminal Tribes Act was repealed by the government after independence, its underlying prejudices seem to continue in various central and state enactments on ‘habitual offenders.’ 97.
Yet others led double lives – they pretended to be heterosexual in public and while with their families and made their sexual orientation known to a select few persons, who were often themselves of an atypical sexual orientation. Those who suggest that queerness is borrowed from foreign soil point to the relatively recent increase in the expression of queer identities as evidence of the fact that queerness is ‘new,’ ‘modern,’ or ‘borrowed.’ Persons who champion this view overlook two vital details. To determine whether this contention is correct, it is necessary to query when something or someone is ‘Indian.’ This question is all the more important in a country as diverse as ours, with twenty-eight States, eight Union Territories, a population of more than one billion persons, twenty-two languages recognized by the Constitution and scores more which are spoken by its people, at least eight religions, tribal and non- tribal populations, and varying cultures which are sometimes at odds with one another. A thing, an occurrence, or a practice is ‘Indian’ when it is present in India, takes place here, or is practised by Indian citizens. The law defines the conditions for a PART D 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.
The law provides remedies which either party may avail of in the presence or absence of certain features or characteristics. 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. Many married couples may choose not to engage in sexual relations for various reasons.
The PART D 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. 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. 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. 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. 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. This segment is not an exhaustive discussion of the PART D changes to the institution of marriage 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. A discussion of the history of marriage in India would be incomplete without reference to child marriage and the legal age of consent. Decades later, the Child Marriage Restraint Act 1929 raised the minimum age of marriage for girls from twelve to fourteen. Union of India, 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. 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. 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.
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. 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. 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 inter- caste marriages under personal laws despite continuing hostility from the communities of such couples. 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.
In 1976, Section 13B was introduced in the HMA, permitting Hindus to dissolve their marriage by mutual consent, for the first time. One of the modes was talaq-e-biddat or triple talaq by which the husband could instantly, irrevocably, and unilaterally divorce his wife. Union of India, this Court held that the practice of severing the marital bond through the mode of talaq-e-biddat was unconstitutional. Injustice in the law in relation to the institution of PART D 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. Regardless of such opposition, the institution of marriage has undergone a sea change. 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. Tushar Mehta, the learned Solicitor General, submitted during the course of his arguments that two persons from the LGBTQ community have the PART D 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. The petitioners seek that the State grant legal recognition to the relationship between non-heterosexual persons in the form of marriage because they are otherwise excluded from the express and implied benefits of marriage.
Case Title: Supriyo @ Supriya Chakraborty & Anr. Vs. Union of India
Case Number: Writ Petition (Civil) No. 1011 of 2022 (2023 INSC 920)
