Paras Ahuja

The position of marriage equality in India, even after the decision in Navtej Johar, is littered with unnecessary enigma.

The date of 6^th September, 2018, marked itself in the history of India’s progressive course towards a free society. It was the day when Section 377, Indian Penal Code, 1860 was held unconstitutional by the Supreme Court of India in landmark judgement of Navtej Singh Johar v Union of India. Same-sex relationships were de-criminalised. It was a day of independence, liberation and realisation of the democratic ethos.

However, this mirage of liberation would soon fall into atrophy if placed in context with the marriage laws in India. The de-criminalisation of same-sex relationships didn’t automatically percolate to correct the marriage inequality persisting in India. Section 5 of the Hindu Marriage Act, 1955 provides for the solemnisation of marriage between a “bride” and a “bride-groom”. This provision, in its natural and grammatical sense, alienates the class of “same-sex marriages” from the applicability of the Act. Moreover, Section 4(c) of the Special Marriage Act, 1954 restricts its applicability to a “male” and a “female”. Section 60 of the Indian Christian Marriage Act, 1872 provides for the age of “man” intending to marry to be twenty one years, and the “woman” to be eighteen years as an essential condition for solemnisation of marriage under the Act. Such a requisite to the validity of marriage can also be seen under the Parsi Marriage and Divorce Act, 1936. This is reflective of the debarment of the third gender, in the manner as was recognised in the decision of NALSA, from the applicability of the Act. The community suffers from this non-inclusion in the marriage laws even after the much celebrated case of Navtej Johar, which apparently equalised the LGBTQ community vis-à-vis other sections of the society.

The Supreme Court of India held in the case of Shafin Jahan v. Ashok K.M. that right to marry and the choice of one’s life partner is a fundamental right under Article 21 of the Constitution of India. Moreover, the much revered privacy judgement of K.S. Puttaswamy v. Union of India, elevated the “right of choice of a family life”, to the status of a fundamental right under Article 21. It was held in the case of Navtej Johar v. Union of India that discrimination merely only the basis of the sexual orientation of a person is unconstitutional. The denial of this right to marry to the LGBTQ community would leave the judgement in Navtej Johar otiose. Decriminalization of Section 377 was merely the initiation of the mandate of non-discrimination. The establishment of marriage equality is important for the LGBTQ community to truly realise their freedom, savour the constitutional mandate of equal treatments.

The judicial position with respect to marriage equality in India, post the Navtej Johar judgement, can be scrutinised with help of few recent Supreme Court and High Court judgements. In the case of Arunkumar Seerja vs. The Inspector General of Registration and Others, the Madras High Court held a marriage between a “man” and a “trans-woman” to fall well within the contours of the Hindu Marriage Act, 1955. The Madurai bench moved away from the conventional interpretation of the words, “bride” and “bride-groom” under Section 5 of the Act, and interpreted them as per the changing times, and the changing position of law. The court in this case identified the need for the consistency in laws. Although the judgement provides for a breathing space to good mass of India’s population, however, the law still doesn’t include them in the legislative framing of the provisions. In other words, even though the judicial interpretation favours the LGBTQ community, the marriage laws in India don’t still recognise this class or include them within their scope, in their natural meaning.

More recently, the Delhi High Court dismissed the petition filed by Advocates Tajinder Singh and Anurag Chauhan, seeking to recognise marriage equality in India and make amendments in the marriage laws to ensure consistency and proper implementation of the verdict in the case of Navtej Johar. The court expressed its aversion to make any changes in the marriage, adoption, or divorce laws of the country favouring the inclusion of the LGBTQ community, as that was the task of the legislature. The bench of Justice D.N. Patel and Justice C. Harishankar didn’t recognise the existence of marriage equality as a reflexive outcome of the judgement in the case of Navtej Johar. The court here shielded itself in the name of protection of the constitutional doctrine of “Separation of Powers”. Behind this veil of preserving the constitutional values, the judgment rather features as a violation of doctrine of precedent, as enshrined under Article 141 the Constitution of India. Interpreting the marriage laws to include the LGBTQ community would not be tantamount to “legislating” or exercising the task of law-making, rather it would be an apposite application of the mischief rule of statutory interpretation. The rule suggests that if there is a change in a law which provides for the correction of some mischief, the law must be interpreted, in case of an ambiguity, in a manner that the mischief stands removed, and not otherwise. The judgement in this case is reflective of the judicial approach to hinder the actualisation of the letter of the law in its true spirit.

Recently, Supreme Court of India dismissed a petition seeking the provision of certain rights including right to marry and adoption to the LGBTQ community. It bench observed that it is not inclined to entertain any plea, post the Navtej Johar judgement. In simple words, the Court seeks to interpret the mandate of ‘non-discrimination’ to merely include decriminalization of an act which would not be otherwise be an offence for other sections of the society, and not the provision of equal rights to all, including the fundamental right to the choice of a family life, which was held to fall within the right to privacy under Article 21, Constitution of India.

Even after having won a battle in the apex court of the nation providing for the operation of Article 15 to dis-allow every form of discrimination, the LGBTQ community is still alienated and not given any place in the marriage laws in India, as is evident from the framing of the various marriage laws (elucidated above). It was held in the much revered US Supreme Court judgement of Obergefell v. Hodges that the operation of the due process clause and equal protection clause guarantees the same-sex couples, the fundamental right to marry. Interestingly, the Indian case of K.S. Puttaswamy v. Union of India referred to this part of the aforementioned decision to make a specific observation. It bench observed in this case that the right to privacy should be recognised in respect to a decision to enter into a relationship, so much so as it is recognised with respect to other aspects of family life. This provides for a tacit recognition to marriage equality and its operation in India as a natural consequence of right of privacy.

However, even after this tacit recognition and a more explicit one in the case of Navtej Johar, the legislature and the judiciary tend to invent encumbrances to impede the realization of marriage equality in India. An example of “inventing encumbrances” can be seen in the recent judgement of the U.K. High Court where the court denied the right to a trans-man to register as a father. The law there recognises the right of the transgender community to marry, however the denial of their right to register as a parent of a self-identified gender, shrivels the former to futility.

The appropriate course should be for the legislature to take upon itself to make the requisite amendments in the marriage laws  for inclusion of the LGBTQ community. However such should not be pre-requisite for the judiciary to allow for marriages amongst the community, as was done in the recent Madras High Court judgement. Their inclusion within the marriage laws can be carved out as a necessary conclusion from the case of Navtej Johar and should not be subjected to judge-made infirmities, which lack any substantive merit.

The Author is a third year law under-graduate at National law University, Jodhpur.