Updated: Nov 27, 2020

New Delhi: For the past eight years, mental health professionals Kavita Arora and Ankita Khanna have lived together, shared finances, gone on vacation with their parents, and taken care of each other when ill.

“They share the highs, the lows, the joys and sorrows of life; they go through the wear and tear of living together; they have the deep, unbreakable bond of two people who have come together in love.” They are, “like any other couple you might meet, except they are both women.”

The prelude to the lines quoted above from their Delhi High Court petition began on 23 September when Kavita and Ankita went to the special district magistrate’s office at Kalkaji, New Delhi to serve the 30-day notice required to get married under the Special Marriage Act, 1954 (SMA). A week later, their request was turned down on the grounds that they are a same-sex couple. On 5 October, the couple filed a joint petition in the Delhi High Court saying that denial of the solemnisation of their marriage is “purely discriminatory and an affront to the principles of equality and dignity enshrined under Articles 14, 15, 19 and 21 of the Constitution of India.”

Filed through their lawyers Arundhati Katju and Surabhi Dhar and argued in court by Menaka Guruswamy, the petition asks the court for directions to register their marriage under the SMA. It also seeks a declaration that the SMA should be construed so as to entitle all persons, “regardless of their gender identity or sexual orientation” to get married.

Kavita and Ankita’s desire to get married gained urgency during the pandemic when they were “jolted into the realization that life is unpredictable and transient. They want to protect each other’s financial and emotional security… the need to nominate one’s partner in health and life insurance, to protect the right to inheritance and to access to the shared household, financial and other resources has never been more pressing than during the pandemic.”

The petition goes on to detail the reality and practical difficulties of same-sex unions beyond just the pandemic. For instance, how does a same-sex couple open a joint bank account? While there is no legal restriction for two unrelated individuals to open a joint account, in practice bank officials make it virtually impossible to do so, asking for documentation which an unmarried couple cannot provide.

Or, points out the petition, while there is no prohibition in nominating even a stranger in an insurance policy or in mutual fund holdings, the required documentation makes it impossible to nominate your loved one. In another telling instance, the petition points out that it is impossible to change the nominee on a life insurance policy online, something that becomes even more important during the Coronavirus pandemic.

Routine matters such as getting an address proof (required in virtually every official interaction) is extremely difficult for a same sex couple. For the longest time, even though the couple lived together in an apartment owned by Kavita, Ankita could not get an address proof since they were not part of a formally recognized family unit.

When Ankita applied for a passport, the authorities required proof of address in an account of a nationalized bank. Consequently, a rather tortuous and circuitous route had to be followed. Ankita first had to get her address changed by opening an account with a private bank. She then used that proof of address to change her address in an account she held with a public bank. Even after she got the required address proof, she was in for a rude shock. Since a police verification is mandatory for a passport application, the couple had to go to the local police to convince them that they lived together and that Ankita was not Kavita’s tenant. But even though Ankita had the required address proof, the police officer put her down as a tenant in the police verification report.

Challenges To The SMA On Grounds Of Discrimination

Kavita and Ankita’s petition challenging the SMA in the Delhi High Court is not the only one. On the same date, another couple also approached the Delhi High Court filing a petition alleging discrimination through the misapplication of the law.

The second case concerns two men, one of whom is an Indian citizen and the other a US citizen but an OCI card holder of Indian origin. The two men got married in the US. They then sought to have their marriage registered under the provisions of the Foreign Marriage Act, 1969 (FMA). Section 4 of the Act lays down the conditions for recognition of the marriage, which the two men clearly complied with. Section 17 provides for registration of foreign marriages. However, inspite of complying with the law, the registration of the marriage was refused by the authorities at the Indian Consulate in New York on the ground that there were ‘no extant regulations’ enabling registration of same-sex marriages, a ground that is completely alien to the FMA.

Two other petitions seeking recognition of same sex marriage are currently pending before the Delhi and the Kerala High Courts. Abhijit Iyer-Mitra and three other individuals ( Gopi Shankar, Giti Thadani and G Oorvasi) have jointly filed a public interest petition before the Delhi High Court seeking a declaration that the Hindu Marriage Act, 1955 ought to be interpreted as permitting same sex marriage between two Hindus.

A gay couple has also moved the Kerala High Court seeking a declaration that “homosexual couples should be entitled to solemnize and register their marriage under the [SMA].” Notice has been issued to the central government, but no reply has been filed to the petition so far. It is quite likely that in the coming months more petitions will be filed before other high courts or even the Supreme Court.

Same-sex couples face routine discrimination due to their inability to get married. Discrimination is not merely written into the law, but also magnified in practice through the routine and systemic application of otherwise non-discriminatory laws in an arbitrary fashion.

In A History of Marriage: From Same Sex Unions to Private Laws and Common Law, the Surprising Diversity of a Tradition, historian Elizabeth Abbott describes marriage as a social construct which confers legal legitimacy to a married couple.

However, marriage is not merely a case of legal recognition, it also confers substantive rights on spouses. By definition, same sex couples who are unable to get married are denied those rights. Matters of taxation, personal and employment laws are clear instances where the discrimination is apparent. A married spouse can gift money to her spouse without any gift tax implications unlike an unmarried couple. The tax laws permit deductions for payments made for the life insurance or provident fund of a spouse, something not available to a mere live-in partner.

In matters of personal law, a wife becomes part of her husband’s HUF and entitled to a share in the family property even if her husband dies without leaving a will. A married couple can jointly adopt children, something not possible for a same sex couple. Most poignantly, especially in the age of Covid-19, unmarried partners cannot take medical decisions for each other, including end of life medical decisions.

In cases of employment legislation, an employee can only nominate a family member for the purposes of gratuity or provident fund. The definition of the term family is limited and includes (other than parents or children) only a husband or a wife. Unmarried partners are clearly excluded from the fruits of the labour of the partner.

These are instances of clearly discriminatory laws. What is often missed is that discrimination is also caused by how the laws are applied in practice. There may be laws, rules and regulation which are, on the face of it, non-discriminatory. However, if those laws are routinely applied in a discriminatory fashion by those administering it, there is resultant unfairness. The insidious nature of the discrimination can be seen through concrete examples which are currently pending in the courts of law.

What Next After Navtej Singh Johar?

There are some in the queer community who reject the very idea of marriage as a patriarchal institution or question whether it is necessary or proper to focus on same sex marriage when so many other issues face the community. But the above examples of discrimination, both written and unwritten, make it clear that if a queer person is to be an equal citizen to her heterosexual counterpart, recognition of same sex marriage is essential. The matter is not merely one of rights, but also one of demanding the same respect and access to a vital social institution that is available for every other citizen. In a country like India where marriage seems at times to have outsized importance, where most parents think that their children would only “settle down” after marriage, to deny this right to same sex couples is to label them as second-class citizens.

The Delhi High Court has issued notice to the Central government in the matter and the outcome of the cases remains to be seen. However, preliminary media reports indicate that the Central government is not exactly enamoured with the idea of recognizing same sex marriage. Appearing for the Central government in the two cases, lawyer Raj Kumar Yadav, stated that “this is a peculiar situation” and that “in sanatana dharma in the last 5,000 years, this kind of situation we have not faced.” Tushar Mehta, the solicitor general appearing in another case seeking legalization of same sex marriage has reportedly said that Indian values do not recognize a marriage, which is sascroscant, between two people of the same sex.

Undoubtedly, some of the resistance to same sex marriages will be rooted in the perception that same sex marriage is contrary to the religious scriptures. While there may be some evidence that Hindu religious texts are not virulently anti same-sex marriage, that may not be the appropriate lens to view the issue through. The matter, being judged by the Constitutional Court, has to be seen through the perspective of constitutional morality.

Indeed, similar arguments had been raised by various religious groups when they had intervened in the matter relation to the decriminalisation of homosexuality.

Suresh Kumar Koushal, the astrologer whose first petition had resulted in the Supreme Court overturning the Delhi High Court judgment which had first decriminalised homosexuality, had urged that since fundamental rights were not absolute, decriminalising homosexuality would “run foul to all religions practised in the country”. These arguments were brushed aside by the Supreme Court in the Navtej Singh Johar case noting that “constitutionality morality is the guarantee which seeks that all inequality is eliminated from the social structure and each individual is assured of the means for the enforcement of the rights guaranteed. Constitutional morality leans towards making Indian democracy vibrant by infusing a spirit of brotherhood amongst a heterogeneous population belonging to different classes, races, religions, cultures, castes and sections.” The crux of the case was that in case of a clash between constitutional morality and outmoded religious prejudices, the former would prevail in the courts of law.

Despite the opposition, there is hope. Experience of the US has shown that once the courts accept unconstitutionality of anti-sodomy legislations, the path to recognition of same sex marriage is quite rapid. Of course the US is not India, but it has a similar judicial tradition and an equally conservative society.

There is, in any event, Indian precedent that the courts are ready to accept same sex marriage. In a judgment given by the Madurai bench of the Madras High Court, the Court recognized the marriage between and intersex person who identified as a transwoman and a man. The Court said that the legal validity of such a marriage was obvious, though sometimes ‘to see the obvious, one needs not only the physical vision in the eye but also love in the heart.’

(Saurabh Kirpal is an advocate practising in the Supreme Court of India. He was the counsel for Navtej Singh Johar and others and is the editor of the recently published anthology, Sex and the Supreme Court, Hachette, September 2020)