This Article has been authored by Namrata Chandorkar, a final year law student at ILS Law College, Pune.
“Where there is a will, there is a way.
But when the law decides there is none, who shall get a say?”
Last year, on 24th of January, 2020, the Kerala High Court admitted a writ petition filed by a “married” gay couple seeking a declaration to allow homosexual marriages to be solemnised under the Special Marriage Act, 1954. The case is still pending in the Court of law.
Three similar writ petitions were filed in the Delhi High Court last year seeking for the exact same declaration. They are:
a. Abhijit Iyer Mitra and Ors. v. Union of India
b. Dr Kavita Arora and Anr. v. Union of India
c. Vaibhav Jain and Anr. v. Union of India
The admission of these Petitions is indicative of the progressive attitude of the Courts, but that may not be enough unless the State legally recognises same-sex marriages. Despite the Apex Court’s judgment in the case of Navtej Singh Johar v. Union of India and Ors., there is no mode of affording legal recognition to same-sex marriages. There are several writ petitions pending in High Courts all over the country, but so far, none of them are decided to lay down a mode of registering same-sex marriages.
In this Article, the Author shall be analysing two models that legalise homosexual marriages, and discuss their viability in the Indian scenario.
Marriage (Same-Sex Couples) Act, 2013, United Kingdom:
A stellar example of inclusion-aimed legislation is the Marriage (Same-Sex Couples) Act, 2013, enacted by the British Parliament in 2013. According to Section 1 of the Act, same-sex marriages that are solemnised in consonance with Parts 3 and 5 of the Marriage Act, 1949, are legal. Provisions of the said Parts of the Marriage Act, 1949 mimic the essence of the Indian Special Marriage Act, 1954.
This English legislation is drafted with the intent to extend the application of existing marriage law to homosexual marriages. This model is suitable for the Indian scenario. A fresh legislation that extends the scope of the Special Marriage Act, 1954, to same-sex marriages best substitutes other options like amending the Special Marriage Act or having the Apex Court read down the law. The underlying reason is that an amendment to the Special Marriage Act, 1954, will not be a mere legislative amendment. There are a variety of administrative rules and procedures that flow from the operation of the Special Marriage Act, 1954, like maintaining a register of marriages, a record of appended forms and declarations, and a record of all granted certificates of marriage. Amending the Special Marriage Act, 1954, will require the amendment of all administrative rules that are borne out of the said Act.
Another highly discussed option is the judicial reading down of the Special Marriage Act, 1954, insofar as it is discriminatory against homosexual alliances. This option has much legal backing except, it makes us question whether it is appropriate to approach a judicial body rather than an democratically elected one, to decide matters of such nature. One may, with ease, argue that it is only the Parliament that has the power to create law of such a substantive nature, one that shakes the foundation of every personal law and related administrative rules enacted in the country. With this assertion in mind, it is highly unlikely that a Court’s judgment reading down the Special Marriage Act, 1954, will be put into action by the Centre.
However, the abovementioned conundrum may be avoided if a fresh legislation, extending the Special Marriage Act, 1954, is enacted. The same shall have the backing and legitimacy of democracy. The Special Marriage Act, 1954, does not explicitly exclude same-sex marriages, but the intent of the Act was never to include same-sex marriages as well. This is evident from the forms appended in the Schedules of the said Act. The template of a Notice, a Declaration and a Certificate of Marriage that are laid down in Schedules 2 to 5, all indicate that there be one bride groom and one groom who intend to solemnise their marriage. A new Act that would extend the applicability of the Special Marriage Act, similar to the model adopted by the UK, must include suitable templates that recognise the union of two grooms or two brides.
Civil Unions and Partnerships:
Under the legal regime of many European countries, same-sex marriages are structured as civil marriages or registered partnerships. Civil marriages are marriages by registry. This model is quite similar to the procedure laid under the Indian Special Marriage Act. Registered partnerships are alliances created by a partnership agreement, registered under law. This is not equivalent to marriage, rather it is a contract.
This model is particularly unfit for the Indian scenario for a multitude of reasons. First and foremost, marriage is deemed to be a sacrament and not a contractual obligation. It is not only a give and take of rights and liabilities, rather it has a larger social and historical significance in an individual’s life. Whether we appreciate it or not, marriage affords a certain social validation to any relationship. To only allow civil marriages to homosexual couples, is discriminatory and violative of their rights under Articles 14 and 21 of the Indian Constitution, as civil marriages are beneath religious marriages in their essence and symbolism.
Conversely, it may be argued that civil unions is the best way forward for homosexual couples. Marriage in India heavily bodes on religious connotations, and an amendment to the personal laws may receive heavy vocal opposition from the public. Homosexuality is still deemed an “unnatural” phenomenon in Indian society, despite the Judiciary waving a rainbow coloured flag. A legislation granting the status of marriage to same-sex alliances may not pass in the House of the People. Unfavourable, yes. But we must face this sad practicality as well.
However, the law may allow civil unions that allow same-sex couples to legalise their marriages via a contractual alliance. The recognition of the same will require a legislation like the Civil Partnership Act, 2004 of the United Kingdom. This will allow homosexual marriages to be registered as civil partnerships, and to function like a contract.
Benefits of this Model:
Homosexual couples will be able to ascertain their own rights and liabilities, in terms of mode of inheritance, ownership of assets, shared residence, distribution of assets in case of dissolution of “marriage.” A civil partnership can be enforced as a valid and binding contract under the Indian Contract Act, 1872.
It is beyond clear, via existing literature and past discourse that giving homosexual alliances, the status of “marriage” under prevailing Indian personal laws is a tricky and obscure endeavour. This legal conundrum is often used as an excuse to deny homosexual couples their rights, by the authorities and the Government. Establishing a different system of marriage for homosexual couples will ensure that their rights are materialised, in a different yet legal manner.
Drawbacks of this Model:
Civil partnerships will exclude various marital benefits heterosexual couples get like medical benefits, tax exemptions, spousal privilege under law, and the like. Since civil partnerships will not fall under the definition of “marriage,” these benefits cannot be extended to homosexual couples.
Comparison of legality of civil partnerships with pre-nuptial agreements:
When we say “marriage is a sacrament,” it is not merely for histrionics, rather it is a much embedded notion in the law of this country. It is not only in the case of homosexual marriages, that a contractual setting may be problematic. Indian courts have, time and again, denied contractual arrangements to govern aspects of marriage. Pre-nuptial agreements have been one such instance.
Pre-nuptial agreements are entered into by a couple before marriage is solemnised. The content of such agreements may differ, but the intent, largely, is to lay down stipulations in case of future dissolution of marriage or death of a partner. Such agreements usually address situations like distribution of assets, custody of children, and the like.
Despite being a valid and binding contract that satisfies the tenets of Section 10 of the Indian Contracts Act, 1872, Indian courts have been extremely reluctant to recognise the validity of these agreements. Reasons are of a varied nature; these agreements are disruptive of marriage, which is a sacrament, these agreements are void as they operate against the public policy of India (Section 23 of the Indian Contracts Act, 1872).
A similar legal rejection is warranted against the proposal for civil partnerships for homosexual couples. It is beyond clear that the institution of marriage is decidedly considered exclusive from the domain of contractual law. However, the State has made it unequivocally clear that marriage is an institution that deserves preservation and protection. The same is evident in the attitude of the courts and the intent of the legislators. In spirit of the same, recognising civil partnerships is equivalent to affording to homosexual couples, the secured right to marry.
Just three days ago, in an ongoing case before the Honourable Delhi High Court (Abhijit Iyer Mitra and Ors. v. Union of India), the Centre stated in its affidavit to the Court, that there is no fundamental right to same-sex marriages under the standing Indian law.
It is high time we realise that it is easy to get lost in legal attitudes and technicalities. It is easier to deny individuals their rights if the law is rigidly exercised. One must not lose sight of the fact that the law is meant to protect individuals without discrimination of any sorts. It is the law that should bend to serve the peoples’ will and welfare rather than the people bending to the will of the law.
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