Unveiling Legal Frontiers: The Quest for Same-Sex Marriage Recognition in India

• FastrackGovind
• Legal, Equality, Indian Society, LGBTQ+ Rights
• March 12, 2024

A brief critique of the judgement on same-sex marriage, viz. Supriyo @ Supriya Chakraborty & Anr. V. Union of India judgement

In the present Indian context, same-sex relationships are considered a taboo and are denied validation to a large extent, in society and the Indian judicial system itself. Considered a “western concept” by a considerable chunk of the Indian populace, the rights of the LGBTQ+ community often gets shadowed for the lack of inclusivity and exposure within the Indian context, especially in terms of legislative recognition.
The most recent development in the Indian Law system, relating to the LGBTQ+ community pertained to section 377 of Indian Penal code, now The Bhartiya Nyaya Sanhita, which was deemed unconstitutional following the proceedings of Navtej Singh Johar V. Union of India. Sec. 377 regarded “Unnatural offences” and criminalised voluntary carnal intercourse “against the order of nature with any man, woman or animal” with punishment of imprisonment for life, or with imprisonment for a term which may extend to ten years, and could also be liable to a fine. A small but significant triumph was marked on September 6, 2018, when a five-judge Supreme Court bench struck down Sec. 377, decriminalising consensual intercourse between adults of the same sex. But despite such a development, same-sex marriage still has not been granted validity in India.

On November 14th, 2022, a writ petition was filed in the Supreme Court seeking legal recognition of same-sex marriages in India. It contested the constitutionality of the Special Marriage Act, 1954 (the Act). The petitioners argued that Section 4(c) of the Act recognises marriage only between a ‘male’ and a ‘female’. This expressly discriminated against same-sex couples by denying them matrimonial benefits, which are an unquestioned and statutory right, made available for heterosexual couples. Other personal laws were also brought into question on similar grounds. This was the case of Supriyo @ Supriya Chakraborty & Anr. v Union of India, for which, the decision was passed by a five-judge bench consisting of D.Y. Chandrachud CJI, Justice S.K. Kaul, Justice S.R. Bhat, Justice Hima Kohli and Justice P.S. Narasimha J. The judgement was passed on 17th October, 2023 wherein the five-judge bench pronounced that there is no fundamental right of marriage for same-sex couples and the court does not recognise LGBTQIA+ persons right to marry under the SMA. Thus, validity of the Special Marriage Act, 1954 was upheld.

Observation on the Indian-ness of queerness

In view of the decision in Navtej Singh Johar case, it was held that queerness is innate and natural. Given that India has a history of gender and sexual non-confirming individuals and communities who do not fit into the binary, queerness cannot be considered to not be native to India. It was also held that queerness is not “urban” or “elite”, it is present in all classes of the social structures. It was also held that queer identity carries many social and political impediments in India, which are even more burdensome on people of backward socio-economic class and of marginalised communities. It is observable and obvious by various mentioned instances of queer individuals, that Queer relationships are found within the Indian society and face concerns relating to their sexuality and identity in varying degrees of grievousness. Stigmatisation and criminalisation were established to be core reasons that LGBTQ+ persons are driven into the proverbial closet.

Considerations regarding the institution of marriage and the need for legalisation of same-sex marriage

The court took cognisance of the observations in the case of Indra Sarma (supra) that marriage continues to be understood in terms of stereotyped “traditional” gender roles. The public-private divide continues to be stark. The court was aware of and stated that intangible benefits of marriage extend beyond the social recognition to the relationship of the couple. As Marshall CJ observed in Goodridge V. Department of Public Health, in a very real sense, there are three partners in a civil marriage: two willing partners and an approving State.
There are numerous tangible benefits conferred by the State which flow from marriage and impact every aspect of life. Tangible benefits conferred by marriage can be classified into i) matrimonial and child care related benefits; (ii) property benefits; (iii) monetary benefits; (iv) evidentiary privilege; (v) civic benefits; and (vi) miscellaneous benefits.
Marriage may not have attained the social and legal significance it currently has, if the State had not regulated it through law. Thus, while marriage is not fundamental in itself, it may have attained significance because of the benefits which are realised through regulation.
It is pertinent to note that the SMA itself uses a gender-neutral word “party” in Sec. 4(a) and (b), yet 4(c) stipulates that the male must have completed 21 years and the female must’ve completed 18 years. This in itself is indicative that while it is said that the law protects the rights of its LGBTQ+ citizens in the eye of unlawfulness, it still does not even recognise their identity in law or include them in its considerations. Thus, even in gender-based or hate-based violence or unfairness, justice is served in the capacity of the crime only and not in the capacity in which the criminal intent lies. Thus, the inference by Justice Bhat that there is no need for a special law or inclusion of same-sex marriage to existing laws falls short of acknowledging that the LGBTQ+ existence itself is disregarded in the eyes of law.

To elucidate on the matter, one can consider an instance from February 2024, of a same-sex couple from Kerela, Manu and Jebin, wherein the predicament of rights of partners and recognitions gets highlighted. Upon Manu’s demise, Jebin faced multiple dilemmas, as firstly, the family of the deceased declined to settle medical bills and refused to claim the dead body of Manu. Secondly, Jebin, who wanted to claim the body and perform the last rites was not permitted to do so as the law did not recognise their relationship to have conferred the rights to Jebin. With no legislation to back Jebin as a lawfully recognised partner he cannot be a lawful inheritor. Despite the fact that Manu and Jebin had been cohabitating for several years and had tied matrimonial knot in a traditional ceremony, the lack of articulation of their relationship in law left their relationship unrecognised. Finally, with the assistance of Kerela High Court, the body could be released and Jebin was allowed to attend his partner’s funeral. Justice Ramachandran said Jebin couldn’t claim his mortal remains “in the absence of any evidence placed on record in support of the factum of their relationship”. This in itself is an exemplification of the need of the hour that marriage is not going to be an extended privilege, but a right that, unless granted, is an overt discrimination.

In conclusion, the right to same-sex marriage is ultimately a liberation and gateway to other derivative rights, just as any other heterosexual individual may enjoy. But by denying the said right, the Court consciously allowed a lumbering restriction upon the LGBTQ+ community that directly affects their everyday living. The main deduction of the court was that same-sex marriage is not a fundamental right. The question thus arises that if it is not a fundamental right, should it not be up for debate to make it one, given that it becomes a corporeality that seeps into other fundamental rights and becomes an aftermath that is abrogating and downright discriminative to the citizens who do not have to differ from any other? If marriage is not a fundamental right, any other law that restricts homosexual couples should not have as much competency to regulate their lives, but such an argument does not hold up in court. What holds up, is definitive laws that comprehends the needs of its citizens and is accordingly inclusive.

Written by Nang Sanie Mounglang

FAQ – Same-Sex Marriage Recognition in India

---

Read more : The Significance of Documenting Evidence in Indian Divorce Proceedings: A Comprehensive Guide

Read more : Supreme Court Landmark Ruling: Overturning Legislative Immunity

Read more : The Imperative Guide: Evading 10 Regular Blunders Amidst Dissolution Actions in India