MARRIAGE OF CONVENIENCE-LEGAL RECOGNITION OF SAME-SEX MARRIAGE IN INDIA
INTRODUCTION
The institution of marriage is a social contract between two individuals who are bound by legal, moral, and traditional obligations to perform their social duties together. Historically, marriages served three primary purposes- Physical Security, Economic Stability and Division of Labor.
While historically, the concept of marriage was necessary for various reasons, with the development of human civilization and the advent of technology, the rationale which held the structure of marriage intact slowly crumbled. individuals no longer require brute force to protect estates, as private ownership in most countries is protected by law. Further, economic stability provided earlier by marriage is now achievable due to improved education and the introduction of various jobs. In contemporary times, rather than being a social contract, has been reduced to an understanding between two consenting and legal individuals. It is only a moral and legal contract enforceable by law.
Although the concept of homosexuality predates the invention of gender and marriage, the understanding of homosexuality was contemporary to that of the establishment of the institution of marriage. In India, both marriage and homosexuality or gender fluidity have existed since before India was restricted to geographical boundaries. The presence of a third gender is evident in ancient scriptures and literature of Hinduism, Jainism and Buddhism that acknowledges the existences of ‘tritiya prakriti’.
Despite being widespread and socially acceptable in the past, the marriages of these individuals remain a controversial issue globally and in India. Following a massive trial of activist movements and protests, the late spring of 2023 brought with it the long-sought judicial intervention in the issue of same-sex marriages in India. The expansive arguments, which lasted 10 days, still await the final judgment. This paper aims to analyze same-sex marriages through different jurisdictions and understand the impact that the final decision might have on the Indian Social Structure, with emphasis on the LGBTQ+ community.
HISTORY OF SAME-SEX MARRIAGES
The institution of marriage provided three primary advantages in ancient times.
- Physical Security- Since ancient times, land has been a predominant social currency and a vital resource. It could be utilized not only to establish houses but also to practice agriculture and breed cattle. A large estate required the protection of multiple people as no proper system to protect the estate existed. Since land ownership became hereditary, land holdings were jointly protected by families of individuals entering into marriage. Alternatively, the institution of marriage also became a tool to prevent conflict concerning land between two different tribes.
- Economic Stability- Marriage enabled individuals to consolidate their assets, providing some economic stability and freedom. It further increased the purchasing power of the individuals.
- Division of Labor – Both individuals usually had a fixed role in the family; for example, the woman in various cultures performed the role of the house maker i.e. she would look after the children, cook, etc. The man, on the other hand, was seen as the breadwinner. This division and allotment made work easier and decreased the burden on one person.
Apart from these, marriages had a social advantage and enabled individuals to form strong social connections. Since marriage is a relatively new social construct (alongside gender), evidence of the existence of marriage between heterosexual and homosexual couples is likewise sparse. One particular couple that stand out in ancient Egypt are Nyankh-Khnum and Khnum-hotep. These findings are based on the tombs of these couples and the position in which the dead have been arranged. Contrastingly, classical Greece had developed various cultural norms to deal with same-sex couples indicating that taking a partner belonging to the same sex of the individual was a standard affair. These established norms can be made out from various literary works such as Plato’s Symposium. The Symposium is essentially a dialogue between Socrates and other such thinkers.
The early Indian Civilisation (Harappan Civilisation), which was contemporary to Egyptian Civilisation, does not have adequate records to confirm or deny same-sex couples’ existence and social acceptability. However, during the Vedic Period in India, numerous literary works mention homosexual individuals. One such example is Vatsyayana Kamasutra, which discusses ‘tritiyaprakrti’ or the third nature (referring to the third gender). This third gender was further divided into various sub-sects, such as “Swarinis”6 which could compare to the present-day lesbian community. These couples (their marriage was socially accepted) often adopted and raised children. Hence, if ancient Indian literature proves the social indulgence and acknowledgement of same-sex marriages in India, the search for a change in the social temperament must continue to the era of Colonisation. The three-century-old rule not only brought with it numerous cultural differences but left India as she neglected an expansive community of people.
DRIFTING MINDSET
While the reason for change from acceptance to dissent of same-sex relationships cannot be established with conviction due to lack of evidence, one of the reasons attributed to this shift is the advent of Christianity and its growing influence. The Roman Empire witnessed a burgeoning of Christianity from the time period surrounding 342 C.E., wherein two decrees were passed by two orthodox Catholic monarchs, namely the ‘Theodosian Code’ and the ‘Code of Justinian’. These decrees aimed to punish marriages based on unnatural sex. The punishment for a man “playing the role of a woman” was publicly burned to death. The need for penalising such marriages ascertains their widespread existence. Another reason for such a shift can be characterised by the replacement of sexual activities as a method of recreation, with sex being primarily associated with procreation. This again could be an influence of the Church and its growing dominance in Rome. Following rapid development throughout the Roman Empire, Christianity came to the British to convert Anglo-Saxon pagans with the Mission of Augustine in 597 C.E.
In 1533, the British Parliament passed the Buggery Act, which penalised intercourse between men, the punishment for which was death until 1861. About a century after this Act was passed, the British arrived in India as spice merchants. These merchants, however, soon traded power with various monarchs across the Indian Subcontinent. Finding their roots in the Greco-Roman Empire and following their footsteps, these “merchants” took upon themselves the burden of civiliZing Indians who were seen as archaic and primitive human forms. In attaining control and justifying imperial injustices, the British passed various laws to contain the LGBTQ+ community in India. One such law that continued to damage the community even after India’s independence was Section 377 of the Indian Penal Code, 18608 which criminaliZed homosexual intercourse. This Section was modelled on the Buggery Act. Apart from this, the Hijra community, which was a large part of the Indian LGBTQ community, was also criminalised9. While this arbitrary Act
targeted numerous Indian Communities, the Hijras faced a particular disadvantage as not only their social activities but their sexual activities were also now persecuted by the colonial regime. These Acts not only persecuted homosexuality but also acted as initiators of social rejection, the effects of which are still faced by the LGBTQ+ community.
After India’s independence, the CTA, 1871 was abolished and replaced with the Habitual Offenders Act. While the colour of criminality was washed off, there still existed the social unacceptability of the LGBTQ+ community and a continuous violation of their fundamental rights. Two primary issues surrounding the community that have been brought before the Indian Judiciary for constitutional interpretation are the constitutional validity of the orthodox Section 377, IPC 1860 and the right to marry.
GRANTING THE RIGHT TO PRIVACY AND PERSONAL LIBERTY
A decade of cases between 2008 to 2018 carved the present status of Section 377, IPC 1860. In 2008, the Naz Foundation10 filed a petition11 before the Court bringing into the limelight, the social injustices against the LGBTQ+ due to the criminalizing nature of Section 377. The section was being arbitrarily exploited by Police Forces and anti-LGBT social groups. It interfered with the sexual anatomy, privacy and integrity and further violated Articles 14, 15 and 21 of the members of the community. The Court held that the sexual orientation of an individual comes under his fundamental right to Privacy and hence Section 377 violated this right. Following this in 2013, the matter reached the Apex Court as an appeal against the High Court decision. In the case of Suresh Kumar Koushal v. Naz Foundation, a Two – Judge Bench at the Apex Court overturned the High Court’s decisions holding the ask for declaring the section it legally unsustainable and thus upholding the constitutional validity of Section 377. The Court held that:
“Section 377 does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offense. Such a prohibition regulates sexual conduct regardless of gender identity and orientation”.
This judgment resulted in a Curative Petition being filed in 2016 by Naz Foundation and the case was referred to a Five Judge Constitutional Bench. Another landmark judgment which primarily dealt with the Right to Privacy but made a passing reference to the Section, also gave way to the final hearing of the issue in the case of Navtej Singh Johar v Union of India. Five individuals from the LGBTQ+ community under Article 32 of the Constitution approached the Court challenging the constitutional validity of Section 377, arguing that it violated Articles 19 (1)(a)18 and 21 of the Constitution. The Bench reversed its 2013 judgment and decriminalized consensual sexual acts between consenting adults. The Court established that a person’s sexual preferences and autonomy are included in their Right to Privacy.
GRANTING THE RIGHT TO MARRY
While it took a decade of litigation for India to decriminalize the sexuality of the LGBTQ+ community, the Judiciary was approached again in April 2023, not to protect but to enforce the community’s fundamental rights. After years of activist movements and protests, the case of Supriyo @ Supriya Chakraborty & Anr. v. UOI, 2023 was brought before a Five Judge Constitutional Bench in the form of a Public Interest Litigation under Article 32 of the Constitution of India. The hearing went on for a gruelling 10 days, wherein the aspect of legal recognition of same-sex marriages was discussed.
CASE BRIEF
Facts of the Case: In the present petition, twenty-five petitions by various transgender individuals, LGBTQ+ activists and same-sex couples were heard. These petitions challenged the provisions of three major laws governing marriage in India – The Hindu Marriage Act 1955 (hereinafter HMA), The Special Marriage Act 1954 (hereinafter SMA) and the Foreign Marriage Act 1969 (hereinafter FMA). In the case of Supriyo @ Supriya Chakraborty v. UOI, the petitioners Supriyo and Abhay are gay men and citizens of India who had been in a committed relationship for about a decade and, upon their 9th anniversary, decided to have a wedding/commitment ceremony. After the ceremony, they came to a painful realization that their marriage was not legally recognized and that the present Indian legal system only recognized heterosexual unions as legal marriages. Further, heterosexual couples also enjoy and are protected under legal rights such as rights of inheritance and adoption, tax benefits, etc. The petition mentioned the case of Navtej Singh Johar, wherein the Court held that history owed an apology to the LGBTQ+ community for decades of discrimination and exclusion meted out to them.
The petition then mentioned the nexus of the SMA and argued for it to be ultra vires of the Constitution on the basis that it discriminates against same-sex couples, denying them the social recognition as well as legal rights provided to opposite-sex couples. The petition hence sought the power of Judicial Review to recognize and solemnize same-sex marriages under the SMA. The petition further mentioned some of the discrepancies being faced by the couple due to their marriage being unrecognized in the eyes of the law:
- Since the laws of inheritance could not be applied to them, they had to formulate wills to ensure that the property should go to their partner after their death.
- After moving in together, Supriyo had to face issues with changing his address as he was neither the owner nor a tenant of the house as his partner bought it.
- Neither of them could take medical decisions for the other.
- The couple were not able to nominate their partner for any financial instrument such as PPF, mutual funds, etc.
The second petition was by Parth Phiroze Merhotra and Uday Raj Anand.
Issues
- Does the non-recognition of same-sex marriage under various Acts violate Articles 14, 15, 19 and 21 of the Constitution of India?
- Whether the SMA discriminates against same-sex marriages from opposite-sex marriages, which is violative of Articles 14, 15, 19 and 21 of the Constitution of India?
Summary of Arguments
The petitioners were represented by Senior Advocates Jayna Kothari, Geeta Luthra, Mukul Rohatgi, Dr Abhishek Manu Singhvi, Raju Ramachandran KV Vishwanathan, Dr. Menaka Guruswamy, Saurabh Kirpal, Anand Grover, Advocates Arundhati Katju, Vrinda Grover, Karuna Nundy, Manu Srinath etc. The respondent, i.e. Union Government, was represented by Solicitor General of India Tushar Mehta Senior Advocate. Rakesh Dwivedi also argued in opposition while representing the State of Madhya Pradesh. Further, Senior Advocates Kapil Sibal and Arvind Datar also argued opposing the petitions. Mr. Rohatgi argued that same-sex couples have a fundamental right to marry, which deserves legal recognition by the State. To strengthen his case, he reiterated various SC judgements. He, however, also stated that he would restrict his arguments to the SMA and not delve into Personal Laws. Mr. Vishwanathan thereafter proposed two possible approaches – one based on the Association of Old Settlers of Sikkim and Ors.v. Union Of India (2023), and the other based on the South African model applied in Minister of Home Affairs v. Fourie (2005).
Ms. Guruswamy, while agreeing with Mr. Rohatgi, also urged the Court to look at the HMA and not just restrict itself to SMA. The CJI reassured the Senior Advocate that the case would be dealt with incrementally and not limit itself to HMA. Mr. Mehta argued that the case fell under the jurisdiction of Parliament as it dealt with legislative definitions of marriage. He also urged that all States must be involved in the proceedings as the subject matter falls under the Concurrent List. The Court decided to limit the case to the Special Marriage Act.
On Day 2, Mr. Rohatgi began by quoting Section 4 of the SMA and explaining that the section contained the scope for involving same-sex marriages with the phrase ‘any two persons’. He further discussed the case of Obergefell v. Hodges (2015) (discussed hereinafter). He pointed the Court towards the long history of the LGBTQ+ community in India, the evidence for which was visible in the Khajuraho temple. While objecting to Mehta’s argument of involving all States, Mr. Rohatgi reminded the Court that the SMA was a Central Legislation, so State involvement was unnecessary. Dr. Singhvi’s arguments followed this.
Over the next several days, the arguments in favour of recognising same-sex marriages under the SMA were presented. Mukul Rohatgi highlighted the scope of the SMA and referred to relevant cases. Abhishek Manu Singhvi discussed issues such as minimum marriageable age and privacy rights. Other advocates addressed international law, the right to marry and have a family, and practical interpretations of the SMA. Solicitor General Tushar Mehta argued against same-sex marriages, citing dissenting judgments and religious considerations. He also mentioned the need for numerous legal amendments. The question of whether the right to marry is fundamental and the limits of the Supreme Court’s authority were also raised. Mr. Dwivedi further talked about the Right to Marry as not being a Fundamental Right. Ms. Bhati dealt with heterosexual marriages and how they protect the welfare of children. The Bench also listened to arguments by Mr. Singh, Ms. Luvkumar and Ms. Aristotle and Mr. Shamshed. As the 10 days of arguments concluded, the Court reserved its verdict on the issue; the final judgment is yet to come out.
Currently, over thirty-six countries, primarily situated in the Americas and the European continent, have legally recognized same-sex marriage.24 The classification of processes used to legalize same-sex marriages is primarily divided into three types – through legislation, through Court decisions and through legislation mandated by Court decisions.
FOREIGN JUDICIARY ON SAME-SEX MARRIAGES
Out of the thirty-six countries, eleven countries had a judicial intervention to legally recognize same-sex marriages.
- United States – Obergefell v. Hodges (Coram – 9 Judge Bench; Ratio – 5:4 )
The Supreme Court of the United States in 2015 declared the rejection to register same-sex marriages as a violation of the Fourteenth Amendment enshrined in the country’s Constitution. Prior to 2015, States had the autonomy to draft legislation in this regard. This legal development however was not an isolated incident and was a result of various legal precedents which paved the way towards the legal recognition of same-sex marriages in the United States.
Previous Legal Precedent- United States v. Windsor – In this present case, the Defense of Marriage Act, 1996 (hereinafter DOMA) was challenged. The DOMA was a federal act passed by the 104th
United States Congress. The objective of the Act was to define and protect the institution of marriage.27 Section 3(a) of the Act defined ‘marriage’ as “only a legal union between one man and one woman as husband and wife”. It further defined the term ‘spouse’ as “only a person of the opposite sex who is a husband or a wife”. This Act had the effect of prohibiting same-sex marriage. The infamous Act was criticized publicly, and some states legalized same-sex marriages despite it. The case of Windsor was brought by Edith Windsor, who, upon inheriting her late spouse’s estate, was subjected to over $350,000 in taxes for failing to fall within eligibility for marital tax exemption as her marriage was not legally recognized. The Supreme Court finally held that the DOMA violated the Fifth Amendment, which provides for the equal protection of laws.
The case of Obergefell v. Hodges dealt primarily with two issues:
1. Whether States were under an obligation to license same-sex marriages.
2. Whether States were obliged to recognize same-sex marriages performed out of State. - Taiwan – Judicial Yuan Interpretation No. 748
On the basis of consolidated petitions, the Taipei City Government filed for the interpretation of the constitutionality of same-sex marriages in the Judicial Yuan in 2017. The Court decided to hold oral proceedings in this regard. This interpretation was in respect of Chapter 2 of Part IV of the Civil Code. The interpretation stated that the provision “does not allow two persons of the same sex to create a permanent union of intimate and exclusive nature for the committed purpose of managing a life together.” The Court further went on to check the constitutional validity of the provision and held it to be
unconstitutional as it violated Articles 7 and 22 of the Constitution of Taiwan. The authorities were directed to amend or enact relevant laws in accordance to the Judgment within the following two years. The Court relied upon one of its previous Judgments wherein it was held that un-spoused persons are eligible to marry and enjoy the freedom to marry, which also includes the freedom to decide “whether to marry” and “whom to marry”. The Court declared such autonomy of choice to be vital for the social development of personality and preservation of human dignity and, thus a fundamental right under
Article 22. The Judgment talked in detail about sexual orientation being an immutable characteristic of human beings. With only two dissenting opinions, the legal recognition of
same-sex marriages was provided in Taiwan.
3. South Africa – Minister of Home Affairs v. Fourie
In the winter of 2005, South Africa became one of the initial countries to legally recognize same-sex marriage. The Constitutional Court, South Africa gave its assent to same-sex marriages when consensual intercourse between homosexual couples was a crime in India and the LGBT+ community faced not only social but administrative discrimination. The applicants in the present case initially approached the Pretoria High Court with a two-fold prayer:
1. Order declaring that the South African Law recognized the applicants’ right to marry.
2. An order of Mandamus to the Minister of Home Affairs and the Director-General to register the applicant’s marriage under the Marriage Act, 1961 and Identification Act, 1997.
The applicants challenged the constitutional validity of Section 30(1) of the Marriage Act, which permitted marriage only between a male and a female. After the judgment of the High Court held that directing the Minister of Home Affairs to register the marriage would be unlawful, the applicants approached the Supreme Court of Appeals (hereinafter SCA). The SCA delivered the majority judgments in two parts – while the Court agreed that the community should not be subject to unfair discrimination, however, the Act could not be interpreted to include them. The issue was finally appealed in the Constitutional Court, wherein it was held that Constitution protected the right to marry. Section 30 of the Marriage Act was held to be violative of Section 10 of the Constitution. The Court directed the Parliament to make appropriate amendments in the Section to provide legal recognition to same-sex couples within a period of 12 months, failing which the term ‘or spouse’ would be automatically read with the present provision.
IN ANTICIPATION OF A FAVOURABLE JUDGMENT
While the final judgment is awaited, the impact of a favorable ruling in the support of same-sex marriage would usher India into a new era concerning the protection of social minorities and would increase the rate of social acceptance of the LGBTQ+ community. With legal recognition, LGBTQ+ couples would enjoy the same rights and receive the same legal protection as heterosexual couples. Among various economic and personal rights, one right which India would benefit greatly from is adoption rights. With registered marriages, LGBTQ+ couples would be eligible to file for adoption under the Hindu Adoptions and Maintenance Act, 1956, or the Guardians and Wards Act, 1890. This judgment will statistically increase adoption rates in India. In the Fall of 2022, the Standing Committee on Law and Personnel provided recommendations for
the harmonization of adoption laws which should allow individuals and couples to adopt regardless of their religion and gender identity. While the recommendations were taken in a positive light, various activists shared concerns over the non-recognition of LGBTQ+ couple marriages in India. Presently, LGBTQ+ individuals can only apply as single parents, which would be disadvantageous for children as they do not inherit property from the partner of their adopted parent, and the partner does not share the same legal relationship with the child as the adopted parent. A positive judicial interpretation might not be free of criticism from various social groups; however, it would prove to be an empowering tool for the LGBTQ + community in India. The precedents in India have been largely in favor of the LGBTQ+, owing to numerous activist movements and social awareness, but the world awaits as the most populous democracy decides the fate of its gender minorities.
Conclusion
Marriage as a social institution historically held importance due to its socio-economical functions. However, as the human civilization evolved the rationale which held the structure of marriage intact slowly crumbled. The history of same-sex marriages around the globe can be traced with the evolution of Christianity as a religion; With its growing influence, the Church shunned the practice of keeping same-sex partners and further went to criminalize individuals who dared to defer from the opinions being imposed by the Church. The mark of acceleration of criminality of LGBTQ+ couples in India can also be traced back to its colonial years. Legal provisions drafted by the British and cultural intricacies introduced by them still continue to pollute the native knowledge of the Indian Subcontinent. A decade of legislative actions (2008-18) resulted in the decriminalization of the crime of being a homosexual born during the British era. In the case of Navtej Singh Johar v. Union of India, a majority decision of a Five Judge Bench decriminalised consensual intercourse between same-sex couples. While this upheld their right to privacy, they continue to be deprived of another fundamental right granted to all heterosexual individuals. The hearings for legal recognition of same-sex marriage were heard by a five Judge Bench in the spring of 2023. While the judgment remains reserved, the anticipation for a positive response from the Court runs heavy. Apart from India, thirty-six have legally recognized same-sex marriages out of which Taiwan and Nepal are among the first ones to do so in Asia. The result of the Bench shall be a defining moment in the lives of not just the members of the LGBTQ+ community but will also set a precedent on how India treats its minority communities.
Prakriti
5th Year Student, B.A.LLB (Hons0
Dr. B. R. Ambedkar National Law University, Haryana