The marriage equality petitions pending before the Supreme Court paint a larger picture of the various shortcomings in India’s marriage laws that deny the right to matrimony to certain sections of citizens. While primarily demanding marriage equality for members of the LGBTQIA+ community, the petitions also raise larger questions about the institution of marriage itself and how Indian laws pertaining to marriage interfere with the fundamental rights and personal liberties of individuals as guaranteed by the Constitution.
One of the petitions, filed by trans rights activists Akkai Padmashali, Uma, and Vyjayanti Vasanta Mogli, puts forth two primary demands — that the laws reflect gender inclusivity, and that the requirement of a notice period before registering the marriage be removed. The lack of gender inclusivity in the laws is challenged in the context of the provisions of the Special Marriage Act of 1954 (SMA) that deny legal marriage to gender non-binary persons. The demand to declare as unconstitutional the SMA’s mandate that couples who want to register their marriage should give a 30-day notice period, during which anyone is free to raise objections, is premised on the fact that it acts as a deterrent to couples wanting to register their marriages.
The Supreme Court, on March 13, transferred the marriage equality petitions to a constitution bench of five judges. They are to be heard on April 18. TNM speaks to the petitioners and takes a deep dive into the provisions of the law that are being challenged.
Currently, all laws pertaining to marriage only allow it between a man and a woman. If a trans individual wants to register their marriage, they will have to first ensure that their gender change reflects on all their identifying documents. But this process of documentation is long-winding, complicated, and not accessible to everyone. Further, though this addresses individuals who have transitioned, it doesn’t allow space for gender-nonconforming persons or anyone who falls outside of the gender binary to register their marriage.
A look at the process to be followed by couples who want to get their marriage registered under SMA will be helpful in better understanding the petitioners’ demands. The first step in registering a marriage under SMA involves giving a written notice to the marriage officer of the district. At least one of the persons must have resided in that district for at least 30 days before giving the notice, as per section 5 of the Act.
Once the notice is received by the marriage officer, they must:
> Maintain a record of all such notices in the ‘marriage notice book’, where the original notices will be retained. This book can be inspected “by any person desirous of inspecting” the notices, without any fee.
> Paste a copy of the notice in a “conspicuous place” in the office.
> Send a copy of the notice to the permanent addresses of the couple if they are not permanent residents of that district. This must also be pasted on the office noticeboard.
These notices, pasted prominently on the walls of register office(s), will remain there for 30 days, before which any person can object to the marriage under the grounds specified under section 4, including the age of the applicants, capacity to consent, incest, etc. If no objection is raised within 30 days, the marriage will be solemnised. If an objection is received, the marriage officer will record it in the marriage notice book along with the signature of the person raising the objection.
After the objection is received, the marriage officer will conduct an inquiry into the matter and decide if the marriage can be registered or not, within 30 days of receiving the objection. If the marriage officer refuses to register the marriage, the couple can file an appeal at the district court.
SMA also accords certain powers to the marriage officers. Section 9 says that the marriage officer has all the “powers vested in a civil court” under the Code of Civil Procedure, 1908 (CrPC). These include summoning and examining witnesses, inspection, compelling the production of documents, etc. If the marriage officer realises that the objection was not made in good faith, they also have the power to impose a penalty.
The petition challenges sections 4 (conditions relating to solemnisation of marriages), 22 (restitution of conjugal rights), 23 (judicial separation), 27 (divorce), and 44 (punishment of bigamy) of SMA, and demands the replacement of “husband,” “wife,” “male,” and “female” with “spouse” and “persons,” in all of these sections, so as to include all persons irrespective of their gender identity and sexual orientation.
Among the petitioners in this case, only Akkai Padmashali, a trans woman, author, and activist from Karnataka, has legally registered her marriage to her partner Vasu. She was able to get this done under the SMA because she was able to change her gender on official records after transitioning. As pointed out by a lawyer, while all the petitions demand marriage equality, the presence of married petitioners like Akkai underlines that the issue is not limited to registering marriages alone, but how our law perceives marriage itself and the process laid down to solemnise a marriage.
Trans activist Akkai Padmashali marries her partner Vasu on Jan 20, 2017, a year after which the marriage was registered
“These sections of SMA are not gender inclusive. We are just saying that the specifics about males and females should be expanded to include people of all gender identities and sexual orientations. Further, the sections allow people who oppose the marriage to file objections and delay the marriage. These provisions are in violation of the fundamental rights guaranteed under Articles 19 and 21 of the Constitution. They deny individuals the privacy and dignity to choose their partners,” Akkai says.
The Act requires couples getting married under SMA to publish a public notice and gives power to anybody to object to the marriage. The petitioners have sought for this provision to be removed by declaring Sections 5 (notice of intended marriage), 6 (marriage notice book and publication), 7 (objection to marriage), 8 (procedure on receipt of objection), 9 (powers of marriage officers in respect of inquiries), 10 (procedure on receipt of objection by marriage officer abroad) and 46 (penalty for wrongful action of marriage officer) of the Act unconstitutional.
“This petition challenges the constitutionality of the notice requirement. The demand is that we should not have a law that premises marriage as something that allows space for objections. A substantial part of the petitioners’ demands deals with the notice period clauses, which will have a consequence for all couples – intercaste and interfaith – who decide to get married under this law,” says Advocate Aravind Narrain, who works with the petitioners in the case.
Aravind adds that the current law has roots in the 19th century when inter-faith and inter-caste marriages were vehemently prohibited. “This Act reproduces that anxiety. The marriage will not be solemnised if it comes within any of the prohibited degrees. But why is this anybody's concern? Why should there be a provision for anybody to raise an objection when two adults decide to marry?” he asks.
The petitioners have challenged the sections dealing with marriage notices on the premise that they are unconstitutional and violative of Articles 14 and 15 (prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth), as well as Articles 19 ( fundamental rights ) and 21 (right to life and dignity) of the Constitution.
In 2020, a batch of marriage notices under SMA with personal details of the couples intending to solemnise their marriage in Kerala was leaked via social media. These couples were then personally harassed for their choice of partners. Athira Sujatha, who got married under SMA, and was doxxed by the said vigilante group, says that this is an infringement of privacy. “When intercaste and interfaith couples decide to get married, this notice with all our personal details including photo and contact is displayed for public view in the register office, and people who have objections can report it. Why do people have to object to our marriage?” she asks, adding that this also poses a danger to the couple and their families.
One of the marriage notices that was leaked on social media saying, "Somebody please inform the girl’s parents"
In January 2021, the Allahabad High Court ordered that the notice is optional and not mandatory, stating that the provision invades the “fundamental rights of liberty and privacy, including within its sphere the freedom to choose marriage without interference from state and non-state actors, of the persons concerned.” The court was hearing a petition filed by a Muslim woman who converted her religion and got married under the personal law of that religion. The woman, during the hearing, said that she would have gotten married under the SMA if not for the notice period.
The couple asserted that the notice was an “invasion of their privacy, drawing unnecessary social pressure and interference in their life,” and that personal laws have no such conditions.
However, the Union Ministry of Law and Justice, in another case before the Delhi High Court in February 2021, claimed that the conditions of notice are “fair and reasonable,” and the reason behind the exercise is “to keep adequate safeguards.” The government also said that it will not be possible to “verify the credibility of a person if at least 30 days notice period is not given,” reported Scroll.
“The reason for notice is said to be to prevent fraudulent marriages. Do fraudsters get married only under SMA? Do we really have a technological process to verify and prevent fraudulent marriages? Right now, in the year 2023, we need a tech-based solution to verify any such marriage taking place under any Act. Instead, people getting married under one particular Act are being discriminated against,” says Athira.
“Quashing these sections is the right thing according to the Constitution. As a citizen of the country, I should have the right to marry a person of my choice irrespective of caste, gender, or religion, without state interference,” she adds.
Akkai also says that the concept of marriage should be understood not from any particular religious lens. “Even atheists get married. The way we understand marriage should change. Society has an understanding of the concept and individuals have their own desires, dreams, and plans for life. I may decide on who my partner, wife, or husband should be, and I will decide on what procedure I will be following. Society is not ready to accept this individual freedom and that is causing all the disturbance. When people get married by tying a knot or exchanging rings, why is there a waiting period for those who want to get married under SMA?” she asks.
Uma says that the right to marriage for the trans community will automatically get them legal property rights. “As human beings, we have all the fundamental rights provided by the Constitution. But the trans community is still not able to access those rights in a comprehensive sense. This petition is a step for us to claim our rights,” she adds.
While the Union government filed a counter affidavit opposing the petitions, the apex court asked them to file additional affidavits, if any, before the hearing. The Union government has said that the petitions are “unsustainable, untenable, and misplaced”, arguing that the usage of specific words like “female,” “woman,” “husband,” “wife,” etc. was proof that the legislature never intended for the law to apply to any union other than heterosexual marriages. The government also said that interfering with the existing system will trigger “complete havoc, with the delicate balance of personal laws in the country and in accepted societal values.”
Athira criticises the government’s stand and says, “The government is clearly saying that marriages must be heterosexual. They want only those who can procreate together to marry. Now, not only do our families bother us to have kids, but the government itself has also taken that stand.”