Same-sex marriages recognisable under Special Marriage Act: Legal experts

Using gender-neutral words like 'partner', 'spouse' are the key to sanctifying the concept under the 1954 law

The Centre told the Supreme Court in its affidavit that 'a plain reading of’ various laws on the subject ‘makes plain that the legislative intent was to recognise marriage as being the union of one man and one woman only’. Legal experts said that though amending personal laws is an uphill task, it (same-sex marriage) can be recognised under the Special Marriage Act of 1954.

The Supreme Court on March 13 referred to a five-judge Constitution Bench, a seminal issue of constitutional significance, that is, whether same-sex couples ought to be allowed to marry under the laws prevalent in India. This prayer had been sought by a batch of petitions seeking various statutes, including the Special Marriage Act, 1954, and the Hindu Marriage Act, 1955, be interpreted in a manner that allows same-sex marriage.  

India does not recognise registered marriages or civil unions involving couples of the same gender, though such couples can attain equal rights and benefits as live-in couples. “When India has the Special Marriage Act of 1954, which provides for a civil form of marriage for couples who cannot marry under their personal laws, the necessity for such unions to be included individually in each law--Hindu Muslim Christian, etc--does not arise,” said Anushkaa Arora, Principal & Founder, ABA Law Office.

The apex court has sought the government’s response to pleas to allow the solemnisation of same-sex marriage under the Special Marriage Act, recognising that non-recognition of same-sex marriage amounted to discrimination that struck at the root of dignity and self-fulfillment of LGBTQ+ couples.

Arora said the need of the hour is for the 1954 Act to be gender-neutral. “If it is not the same then the law is ultra vires to the Constitution to the extent it discriminates between same-sex couples and opposite-sex couples, denying same-sex couples legal rights and the social recognition and status that flow from marriage,” she said.

Apoorva Bhadang, Partner, Vesta Legal said amending personal laws will face resistance at various levels and from religious groups, so the definition of the term marriage must be amended to include same-sex marriages. “The judiciary and legislature should align to amend the Special Marriage Act to recognise and provide for same-sex marriages. Legitimising and formalising same-sex relationships will give access, protection, rights, and benefits to persons in these relationships to be treated at par with those in marriages recognised by the state,” she said.

The Supreme Court has, in recent times, expressly enunciated two principles that were always inherent in the Constitutional fabric. Firstly, in Navtej Singh Johar and Ors vs Union of India, (2018) 10 SCC 1, it held that homosexuality is based on a sense of identity and is as much ingrained, inherent, and innate as heterosexuality and that homosexuals have the fundamental right to live with dignity, are “entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them.” The Court unequivocally held that the LGBTQ+ community possesses “the same human, fundamental and constitutional rights as other citizens”.

Secondly, the Supreme Court has, in at least two of its landmark decisions, recognised that the right to marry a person of one’s choice is a fundamental right. (Shahfin Jahan vs Asokan K M, (2018) 16 SCC 368; Shakti Vahini vs Union of India, (2018) 7 SCC 192).

“In my view, after the express enunciation of the two aforementioned legal principles, it cannot be contended that the right to marry and choose one’s partner can be denied to members of the LGBTQ+ community,” said Tahira Karanjawala, Principal Associate at Karanjawala & Co.

“Further, I believe this fundamental right can easily be made available to members of the LGBTQ+ community, by reading the Special Marriage Act, 1954 in a manner neutral to gender identity and sexual orientation,” she added.

The Special Marriage Act, of 1954 provides that "a marriage between any two persons may be solemnised under this Act". Non-discriminatory access to this legislation can be upheld by reading down any restrictions or preconditions for marriage that are based on sex or gender. Such an interpretation would be consistent with Part III of the Constitution of India, particularly with Articles 14, 15, 19, and 21.

However, the problems cited by the petitioners in these cases include everyday issues as well as basic fundamental rights such as not being able to nominate one’s partner in their health and insurance policies, bank nomination forms, and employment-related nomination forms, for the sole reason that they are not, at present, lawfully married as per the requirement of these forms.

Shweta Kapoor, Partner at Singhania and Co. LLP, said a distinction needs to be drawn here in the case of certain MNCs that are headquartered in jurisdictions that recognise same-sex alliances, marriages, and/or partnerships. “In the case of such MNCs, civil partnerships/marriages within the LGBTQ community are on the same footing as heterosexual marriages in terms of rights and entitlements of employees and/or their spouses,” she said.

Nominations aside, LGBTQ persons in civil partnerships/marriages are precluded from intestate succession and are routinely subject to the onerous requirement of maintaining as well as legally proving a will/testament. “These cases especially came to light when there were sudden deaths during the peak of Covid and health exigencies made partners who were living together seek signatures on hospital forms from blood relations of the patient with whom they were in relationships as hospitals/insurance cos. would not accept forms signed by their domestic partners/same-sex partners. Similarly, LGBTQ persons in civil partnerships/marriages are also excluded from consideration under adoption laws in India,” she said.

Kapoor said the religion of any party under the LGBTQ umbrella is of little or no consequence; what needs to be amended is the language of those provisions that use the words “husband” or “wife” rather than “spouse” or “partner”.

She also states that there is a possibility of bringing in new legislation encapsulating the law for this community which would cover marriage, divorce, maintenance, adoption, alimony, inheritance, and nomination rights. “This would help do away with the need to develop or amend all existing legislations, which would require gender-neutral terms to be used. This can be done as a part of positive equality which is guaranteed under Article 14 of the Constitution. Legally speaking, India already has a history of positive discrimination and providing positive equality, hence, this won’t be the first time the Supreme Court is adjudicating on this concept,” she added.

“The question is not about being in support of or against LGBTQ marriages. The question is, are we willing to provide a “wholesome” life to the citizens of India who are under the LGBTQ umbrella? The question is, does every citizen of this country not deserve to enjoy the fundamental rights guaranteed by the Constitution and the natural rights guaranteed by the UN Charter of Human Rights?” Kapoor questioned.