Plea for Marriage Equality: Constitution Bench Day #5

Plea for Marriage Equality

Judges: D.Y. Chandrachud CJI, S.K. Kaul J, S.R. Bhat J, Hima Kohli J, P.S. Narasimha J

The CJI Chandrachud-led Constitution Bench continued hearing the plea seeking marriage equality for the LGBTQIA+ community in India.

Yesterday, Sr. Advs. Geeta Luthra, Anand Grover, Jayna Kothari, Menaka Guruswamy, Saurabh Kripal and Vrinda Grover presented various arguments for the petitioners. They argued for the LGBTQIA+ community’s right to have a family to be recognised alongside the right to marry. They sought a workable interpretation of the provisions of the Special Marriage Act, 1954.


On November 14th, 2022, two same-sex couples filed writ petitions in the Supreme Court seeking legal recognition of same-sex marriages in India. The petitions were centred around the constitutionality of the Special Marriage Act, 1954 (the Act).

The petitioners argued that Section 4(c) of the Act only recognises marriage between ‘male’ and a ‘female’ persons. This discriminates against same-sex and other queer couples by denying them the same matrimonial benefits as heterosexual couples.

According to petitioners, the non-recognition of same-sex marriage violates the rights to equalityfreedom of expression and dignity. They claimed that the SC’s judgements in NALSA vs Union of India (2014) and Navtej Singh Johar vs. Union of India (2018) recognised non-binary gender identities and guaranteed equal rights to homosexual persons. However, since no law regulates queer marriages, queer couples are denied the practical benefits that flow out of marriage such as inheritance, insurance, adoption, etc.

On March 12th, 2023, the Union filed a Counter Affidavit opposing same-sex marriages. They claimed that ‘the notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex’.

On March 13th, 2023, a 3-Judge Bench led by CJI D.Y. Chandrachud referred the case to be heard by a 5-Judge Constitution Bench as it involved constitutional as well as statutory questions of law.

Adv. Karuna Nundy: Non-Heterosexual Couples Must Have the Right to Marry

Adv. Karuna Nundy commenced today’s arguments by seeking a declaration to include the rights of queer, non-heterosexual persons to marry under the Special Marriage Act, 1954 (SMA) and the Foreign Marriage Act, 1969 (FMA). She argued that the Transgender Persons Protection Act, 2019 which flows from the SC’s judgement in NALSA (2014) already recognised trans marriages and a wide range of gender identities. This was not by coincidence, she claimed. It was deliberate and therefore must be taken seriously. 

Ms. Nundy claimed that the NALSA judgement used the phrase ‘Third Gender Spouse’. This included “non-binary’ persons also. Therefore, she sought for this phrase to be read along with the words ‘husband’ and ‘wife’ in the SMA.

Adv. Arundhati Katju: Let the Evolution of Law Take Its Course 

Ms. Katju conceded that the issues before the Bench were complex and that the Bench cannot be expected to decide everything in a day. However, she drew a comparison with the heterosexual community in this regard. Existing personal laws which govern marriage, evolved to their modern forms through an organic process of filing claims and seeking clarifications. She stated that the petitioners only sought to be treated the same in that regard. 

On the aspect of family, Ms. Katju highlighted the portions of the SMA intended for interfaith couples that would be detrimental to the queer community. Under S.21 of the SMA, when a person marries another person of a different faith, they severe their ties with their blood family (in aspects governed by their religious personal law). Ms. Katju pointed out that queer couples may belong to the same faith and wish to be accepted by their families. Severing familiar ties would be detrimental to this. 

Ms. Katju prayed that the Bench grant a declaration, both positive (as a mandamus to Parliament) and negative (as a prohibition against discrimination)

Other Arguments By the Petitioners

After Ms. Katju, Advs. Amritananda Chakravorty, Raghav Awasti. Shivam Singh and Manu Srinath rushed further arguments for the petitioners due to the piosity of time. 

Ms. Chakravorty argued that denying queer couples the right to adopt defeats the very purpose and object of adoption: providing stable, loving and affectionate parents to a child. 

Mr. Singh focused his argument on the concept of ‘innateness. He stated that if something is so innate to a person that it forms their identity, then it is unconstitutional for the State to utilise that as an opportunity and yardstick for discrimination. Sexual orientation and identity are innate to queer persons. 

Mr. Srinath argued for the exercise of judicial review of discriminatory laws. He stated that the SC was duty-bound to interfere when fundamental rights were violated. 

The Bench then heard submissions from intervenors for the petitioners before breaking for lunch.

Solicitor General Tushar Mehta: The SMA Was Intended for Heterosexual Marriages

Mr. Mehta began by arguing that in this case, it was Parliament that had to make the law, and not the SC. He stated that the pleas seeking marriage equality impacted at least 160 other laws. Further, in ‘LGBTQIA+’, the ‘+’ included at least 72 different identities on the gender spectrum. Therefore, this class of persons was undefined and unidentifiable by law. In order to make laws that impact so many statutes and classes of persons, the SC is not the appropriate forum. Parliament is. He relied on the dissenting judgements of the US cases Obergefell v. Hodges (2015) and Lockner v New York (1905) to support his claims.

Mr. Mehta then stated that the right to marry did not include the right to compel the state to recognise different types of marriages. The questions in the case were: Who could marry and what constitutes marriage? Parliament is the appropriate authority to answer these questions. If the SC wants to determine answers to these questions, the following things have to be kept in mind:

  1. The character of the law could not be changed.
  2. The legislative intent of the law could not be substituted.
  3. The SC could not read words of larger amplitude (persons) in place of words of smaller amplitude (male and female).
  4. This exercise had unintended consequences for heterosexual couples as well.

Further, Mr. Mehta stated that world religions and Indian cultures recognised marriage as a sacred union between a heterosexual man and woman. The intention of the SMA was also to recognise inter-faith and inter-caste marriage between a heterosexual man and woman. The SG countered Mr. Rohatgi’s argument that at the time of drafting the SMA, homosexuality was unknown. He stated that the drafters knew about homosexuality and consciously omitted recognising it under the SMA. He read speeches of the then law minister and other Parliament members at the time to reiterate that the drafters intended to recognise a marriage between heterosexual couples only. 

The Solicitor will resume arguments tomorrow (April 27th, 2023).