On the third day of the ongoing hearing of the marriage equality petitions, Chief Justice of India (CJI) DY Chandrachud asked if the relationship between a man and a woman is so fundamental to our law that including same-sex couples would be “redoing the tapestry of the legislation.” A five-judge bench led by the CJI and comprising justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha are hearing a batch of petitions concerning the institution of marriage.
On Thursday, April 20, the third day of the hearing, senior advocates AM Singhvi, Raju Ramachandran, and KV Vishwanathan made their submissions. The discussions revolved around upgrading the definition of marriage in Indian law, adoption rights, marital rape, and the requirement of a 30-day notice for couples marrying under the Special Marriage Act (SMA). The bench has asked the petitioners’ side to conclude their submissions on Monday.
Advocate Singhvi, continuing on his submissions from Wednesday, argued that the legal heart of the entire case was in the “interpretation of the statute.” He said that a court can modify the meaning of laws by substituting certain words or reading them differently — by interpreting the law with the word “spouse” in place of “man”, “woman”, “husband” and “wife”.
Justice Bhat, on Singhvi’s argument that the SMA should be made gender-neutral, said that the SMA was a framework for the concept of marriage. “And the concept of marriage transcends contemporary understanding, it's an evolving idea, very dynamic. In a constitutional sense, [SMA] only provides a framework. That framework is broad enough to assimilate later developments,” he observed.
Reiterating an earlier observation he made on Wednesday, CJI Chandrachud said that Singhvi’s principal argument was that the intent of Parliament in enacting the SMA in 1954 was to provide people with an option beyond the religious governance of marriages. Justice Bhat, intervening here, pointed out that the aspect of endogamy cannot be ignored and so, it was an all-enfolding kind of legislation that was also critical to inter-caste marriages. Stating that the law has evolved since SMA was first enacted, and that the reading down of section 377 of the Indian Penal Code (IPC) in 2018 recognised that same-sex couples can be in a stable relationship, CJI Chandrachud said that India has now reached an “intermediate stage” in the evolving definition of marriage.
“The moment we decriminalised section 377, we necessarily contemplated that same-sex couples can stay in stable marriage-like relationships. That is, not just a physical relationship but a stable emotional relationship. This happened as an incident of Constitutional interpretation. Once we have crossed that bridge, we have to see if we can recognise marriages, not marriage-like relationships. It requires us to redefine the evolving notion of marriage. Because is the existence of two spouses who belong to a binary gender a necessary requirement for a relationship of marriage? Or has the law now progressed sufficiently to contemplate that the existence of binary genders may be, but is not necessary for definition of marriage?” he observed.
Stating that what is being sought is the expansion of the meaning of the law in the context of Constitutional guarantees, CJI Chandrachud pointed out that an originalist interpretation (the interpretation of a text with the meaning assigned to it during its formulation) of the Constitution was not the norm. “If we have never been bound by the originalist interpretation of the Constitution, should we be bound by the originalist interpretation of a statute, which is subordinate to the Constitution? Is the relationship between a man and a woman so fundamental to our law and therefore the SMA that for us to comprehend that it would also include a relationship between a same-sex couple would be completely redoing the tapestry of the legislation?” he asked.
Advocate Singhvi stated that only the discriminatory portions of the gendered provisions of SMA were being challenged, and not all of its provisions. To his argument that some provisions that were only applicable to heterosexual couples – like that of marital rape – will not create any issues, the CJI asked why they cannot be applied to homosexual couples.
“It’s a criminal offence which is being defined as ‘non-consensual penile vaginal penetration’. Of course it has been expanded by the Verma committee to meet other forms. But otherwise it is non-consensual penile vaginal penetration. It is true that rape is a crime committed even by a woman on a man. But those are special cases,” Singhvi said.
Justice Bhat pointed out that, by this definition, the question of rape would apply to one kind of same-sex partner but not the other — hinting that it would only apply to marriages between two men (and not those between two women). Justice Kaul asked how could homosexual relationships not have rape, when it is acknowledged in heterosexual marriages. “If your lordships were to apply the definition of non consensual penetrative sex then it would apply,” Singhvi said, and pointed out that marital rape has not yet been recognised as a crime in the country.
Advocate Singhvi also pointed out that the 30-day notice requirement is specific to the SMA and was not there in any other personal laws, contending that the requirement was unconstitutional. The bench also pointed out that the provision was rooted in patriarchy and enables the invasion of privacy by society.
Senior advocate Raju Ramachandran, appearing for a lesbian couple, said that his petitioners were from marginalised communities and were facing opposition from their own families. “The [government’s] statement on urban elitism was careless, unnecessary, and insensitive. The institution of marriage is not just the gateway to various socio-economic rights but it is a societal protection from their own natal, parental families,” he argued.
He made submissions on multiple issues, including the historical background of the notice-period requirement in SMA. He briefed the court on how the requirement comes from an archaic law passed in the British Parliament – An Act for the Better Preventing of Clandestine Marriage, 1753. The bench observed that the notice requirement might “disproportionately affect” those belonging to marginalised communities.
Advocate Ramachandran, contending that the provision was “retrograde” and “obnoxious”, said that it should be struck down for everyone. He also sought a protocol for the protection of the couples. “Couples on the run from their families need protection of the State through this court. The Shakti Vahini protocol, where in a parallel situation, detailed directions have been given,” he said. In the Shakti Vahini case, the court made it illegal for khap panchayats or other community groups to prevent two consenting adults from marrying, and also laid down preventive and remedial measures.
“We have to be careful while laying down the protocol, that we do not empower these officers who come into possession of information to use informal methods to use this information, under the guise of protocol,” CJI Chandrachud observed.
Senior advocate KV Vishwanathan, appearing for a trans woman petitioner, argued that procreation was not a valid defence to negate the right to marriage, as people who have decided not to procreate, or even elderly people, are allowed to marry. Talking about transgender persons, he pointed out that the NALSA (National Legal Services Authority v. Union of India) judgement has given them the right to marry. The counsel pointed out that the Central Adoption Resource Authority (CARA)’s rules do not permit adoption by a single member (man) unless they are married, and contended that homosexual couples are as well-suited as heterosexual couples to bring up children.
“What happens when there is domestic violence between a heterosexual couple? What kind of impact does that have on children? So much for being a heterosexual. What about the father coming back home drunk, thrashing up the mother and asking money for alcohol? There are no absolutes as I said, even at the risk of getting trolled,” the CJI observed. He added that same-sex couples seek the same benefits from marriage that heterosexual couples do. “There is a whole range of benefits that cohabitation and marriage provide,” he said, with Justice Bhat adding that marriage was a “gateway” that opens up multiple possibilities and rights that can be enjoyed.
The CJI also observed, “Populous countries like China are losing on demographic dividend since young, highly educated people don’t want to have children – that’s a matter of choice.”