Case BriefsSupreme Court

Supreme Court: In a case where two educated consenting adults had got married to each other without the consent of their parents, the bench of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ held that

“… the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock and that their consent has to be piously given primacy.”

Background

Santosh is an M.Tech from NIT, Tiruchirapalli and is working as a Lecturer in KLES (Karnataka Lingayat Education Society) Pre-University College, Bailhongal, while Laxmi, is an M.A.B.Ed., working as an Assistant Professor in Jain College of Engineering, Belagavi, Karnataka. They developed liking for each other during these assignments. However, there was resistance from the parents of Laxmi, though the parents of Santosh were willing for the matrimony of both the well qualified petitioners who are majors and Hindu by religion.

After Laxmi had, without informing her parents, travelled from Hubli to Bangalore and thereafter to Delhi in order to get married to Santosh, her parents had filed a complaint of a missing person. Laxmi, however, sent her marriage certificate to her parents through whatsapp on 15.10.2020 in which she revealed the factum of marriage to Santosh. She also spoke to the investigating officer and informed that she had already married Santosh and was residing with him. But the IO instead insisted that she should appear before the Murgod police station to record a statement so that the case can be closed. She then sent a letter to the IO stating that she was married to Santosh and there was threat from her parents and thus, was unable to visit the police station.

Thereafter, the IO stated that they would like to close the case, but they wanted her to get her statement recorded at the police station. The IO also stated that the family members may file a case against her that she has stolen things from the home and if an FIR is filed, there would be a negative mark against Santosh and they would have to arrest him which would be problematic for his job also.

What the Court said

The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. Such a right or choice is not is not expected to succumb to the concept of “class honour” or “group thinking.”

The Court said that the case was handled does not reflect very well on the police authorities or the IO, the marriage certificate having been received by him and the conversation already been held with Laxmi where she clearly stated that she was married to Santosh and that she was feeling threatened and apprehensive of coming to the police station.

If the IO could have visited the residence of Santosh, he could very well have recorded the statement of Laxmi rather than insisting and calling upon the petitioners to come to the local police station at Karnataka. Not only that, he undoubtedly sought to compel Laxmi to come and record the statement at police station on the threat of possibility of a false case being registered by her parents against her husband and the consequent action of the police which would result in the arrest of her husband.

“We strongly deprecate the conduct of the IO in adopting these tactics and the officer must be sent for counseling as to how to manage such cases.”

The Court also noticed that both the parties are well educated.

“Educated younger boys and girls are choosing their life partners which, in turn is a departure from the earlier norms of society where caste and community play a major role. Possibly, this is the way forward where caste and community tensions will reduce by such inter marriage but in the meantime these youngsters face threats from the elders and the Courts have been coming to the aid of these youngsters.”

[Laxmibai Chandaragi v. State of Karnataka, 2021 SCC OnLine SC 85, decided on 08.02.2021]


*Judgment by: Justice Sanjay Kishan Kaul 

Know Thy Judge| Justice Sanjay Kishan Kaul

Case BriefsHigh Courts

Allahabad High Court: Vivek Chaudhary, J., held that while giving notice under Section 5 of the Special Marriage Act, 1954, it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish or NOT to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act.

Backdrop – Story of many Safias and Abhisheks

A Habeas Corpus petition was filed by one Safia Sultana through her husband Abhishek Kumar Pandey claiming that they got married as per Hindu rituals after Safia converted to Hindu religion and got a new name Simran. It was alleged that Safia’s father was not permitting them to live together. They claimed that both of them were adults, married of their free will, and desired to live together. They alleged that Safia’s custody by her father was illegal. However, before the Court, Safia’s father fairly accepted that since Safia married Abhishek with her choice and wants to live with him, he accepted her decision and wished both of them best for their future.

The issue of the petition concluded there. But the views expressed by the young couple, compelled the Court to look into the deeper issue. Safia and Abhishek expressed that they could have solemnized their marriage under the Special Marriage Act, 1954 but the Act requires a 30 days notice to be published and objections to be invited from the public at large. They expressed that any such notice would be an invasion in their privacy and would have definitely caused unnecessary social pressure/interference in their free choice with regard to their marriage. The personal laws do not impose any such condition of publication of notice, inviting and deciding objections before solemnizing any marriage. They further state that such a challenge is being faced by a large number of similarly situated persons who desire to build a life with a partner of their own choice.

It is further submitted that such young couples are not in a position to raise these issues before solemnizing their marriages as any litigation further attracts unnecessary attention which invades into their privacy and also causes unnecessary social pressure upon them with regard to their choice of a life partner.

Discussion & analysis

PROVISIONS

For the purpose of the present discussion, the Court referred to Section 4 (Conditions relating to solemnization of special marriages); Section 5 (Notice of intended marriage); Section 6 (Marriage notice book and publication); Section 7 (Objection to marriage); Section 8 (Procedure on receipt of objection); and Section 46 (Penalty for wrongful action of Marriage Officer).

QUESTION

After briefly visiting the history and development of law with regard to civil marriages in India, it was considered that the question before the Court was:

“Whether the social conditions and the law, as has progressed since passing of the Special Marriage Act, 1872 and thereafter the Special Marriage Act, 1954 till now, would in any manner impact the interpretation of Sections 5, 6 and 7 of the 1954 Act and whether with the change the said sections no more remain mandatory in nature.”

INTERPRETATION PARADOX

The Court noted that the Golden Rule of Interpretation is that so far as possible plain reading of the provisions should be accepted. However, at the same time, there is another Principle of Interpretation, that, an ongoing statute should be interpreted on the basis of present day’s changed conditions and not on old obsolete conditions. Reliance was placed on the Supreme Court decision in Satyawati Sharma v. Union of India, (2008) 5 SCC 287; and Kashmir Singh v. Union of India, (2008) 7 SCC 729. Reliance was also placed on Githa Hariharan v. RBI, (1999) 2 SCC 228; N. Kannadasan v. Ajoy Khose, (2009) 7 SCC 1; and K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.

Thus, said the Court, it was required to consider the changes in the social and legal aspects, if any, that may impact the interpretation of the provisions of the 1954 Act.

CHANGES IN SOCIO-LEGAL ASPECTS

While discussing the changes in Socio-legal aspects, the Court referred to the 59th Law Commission Report; the 212th Law Commission Report; and the 242nd Law Commission Report and recommendation made by the Law Commission in these reports.

DEVELOPMENT OF LAW

While walking through the Development of Law on the present aspects, the Court relied on a number of Supreme Court decisions and concluded that since the case of Lata Singh v. State of U.P., (2006) 5 SCC 475, till the case of Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, the law has travelled a long distance defining fundamental rights of personal liberty and of privacy:

  • Once a person becomes a major he or she can marry whosoever he/she likes.” [Lata Singh Union of India, (2006) 5 SCC 475]
  • An inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.” [Indian Woman Says Gang-Raped on Orders of Village Court, In re, (2014) 4 SCC 786]
  • Choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19.” [Asha Ranjan v. State of Bihar, (2017) 4 SCC 786]
  • The consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock…..it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution.” [Shakti Vahini Union of India, (2018) 7 SCC 192]
  • “Neither the State nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters…. Social approval for intimate personal decisions is not the basis for recognising them.” [Shafin Jahan Asokan K.M., (2018) 16 SCC 368]
  • Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination……. privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right.” [S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1]

Decision

In view of the changed social circumstances and progress in laws noted and proposed by the Law Commission as well as law declared by the aforesaid judgments of the Supreme Court, the High Court held that:

“It would be cruel and unethical to force the present generation living with its current needs and expectations to follow the customs and traditions adopted by a generation living nearly 150 years back for its social needs and circumstances, which violates fundamental rights recognized by the courts of the day.”

In view of the Court, the interpretation of Sections 6 and 7 read with Section 46 containing the procedure of publication of notice and inviting objections to the intended marriage in 1954 Act thus has to be such that would uphold the fundamental rights and not violate the same. It was held:

“In case the same on their simplistic reading are held mandatory, as per the law declared today, they would invade in the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned.”

It was further noted that even today, majority of marriages in India are performed under personal laws which do not require publication of any notice or calling for objections with regard to such a marriage. However, under Sections 6 and 7 of the 1954 Act, the persons intending to solemnize a marriage are required to give a notice and the Marriage Officer thereafter is made duty-bound to publish the notice for a period of 30 days and invite objections with regard to the same. Any person can object to the marriage on the ground that it violates any of the condition of Section 4 of the 1954 Act. None of the conditions under Section 4 is such, violation of which would impact rights of any person in any manner different than the same would in case of marriage under any personal law. Even if a marriage takes place in violation of any of the conditions of Section 4, legal consequences would follow and the courts can decide upon the same, including declare such a marriage to be void, as they do under the personal laws.

The Court was of the view that:

“There is no apparent reasonable purpose achieved by making the procedure to be more protective or obstructive under the 1954 Act, under which much less numbers of marriages are taking place, than procedure under the other personal laws, more particularly when this discrimination violates the fundamental rights of the class of persons adopting the 1954 Act for their marriage.”

However, held that Court, that in case, such individuals applying to solemnize their marriage under the 1954 Act themselves by their free choice desire that they would like to have more information about their counterparts, they can definitely opt for publication of notice under Section 6 and further procedure with regard to objections to be followed. Such publication of notice and further procedure would not be violative of their fundamental rights as they adopt the same of their free will. Therefore, the requirement of publication of notice under Section 6 and inviting/entertaining objections under Section 7 can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise.

Operative Portion of the Order

“Thus, this Court mandates that while giving notice under Section 5 of the Act of 1954 it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish or not to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act of 1954. In case they do not make such a request for publication of notice in writing, while giving notice under Section 5 of the Act, the Marriage Officer shall not publish any such notice or entertain objections to the intended marriage and proceed with the solemnization of the marriage. It goes without saying that it shall be open for the Marriage Officer, while solemnizing any marriage under the Act of 1954, to verify the identification, age and valid consent of the parties or otherwise their competence to marry under the said Act. In case he has any doubt, it shall be open for him to ask for appropriate details/proof as per the facts of the case.”[Safiya Sultana v. State of U.P., 2021 SCC OnLine All 19, decided on 12-01-2021]

Case BriefsHigh Courts

Allahabad High Court: Raj Beer Singh, J., observed that:

“The object of the Section 125 CrPC being to afford a swift remedy, and the determination by the Magistrate as to the status of the parties being subject to a final determination by the Civil Court, when the husband denies that the applicant is not his wife, all that the Magistrate has to find, in a proceeding under Section 125 CrPC, is whether there was some marriage ceremony between the parties, whether they have lived as husband and wife in the eyes of their neighbours, whether children were born from the union.”

The instant revision was preferred against the order passed under Section 125 of Criminal Procedure Code.

Contention that falls for consideration:

Whether respondent 2 has been able to show herself as married wife of revisionist in order to claim maintenance from revisionist under Section 125 CrPC?

Proceedings under Section 125 CrPC. are summary proceeding. In Supreme Court’s decision of Dwarika Prasad Satpathy v. Bidyut Prava Dixit, (1999) 7 SCC 675, it was observed that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC.

Bench expressed that it is a well-settled law that for the purposes of a proceeding under Section 125 CrPC, the factum of marriage has to be prima facie considered.

“If there is prima facie material on record to suggest that the parties have married or are having relationship in the nature of marriage, the court can presume in favour of the woman claiming maintenance.”

 Court also stated that an order passed in an application under Section 125 CrPC does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide a summary remedy for providing maintenance to a wife, children and parents.

In the decision of S. Sethurathiuam Pillai v. Barbara it was observed that maintenance under Section 488 CrPC, 1898 (similar to Section 125 Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties.

Court observed that in a proceeding for maintenance under Section 125 CrPC, a Magistrate or Judge of the Family Court has to be prima facie satisfied about the marital status of the parties, as a decision under Section 125 CrPC is tentative in nature, subject to the decision in any civil proceeding, as has been held in Santosh v. Naresh Pal (1998) 8 SCC 447.

In light of the above discussions, High Court states that if from the evidence which is led, the Magistrate/Court is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125 CrPC which are of summary nature, strict proof of performance of essential rites is not required.

In the instant matter, respondent 2 had submitted that her nikah was solemnized with the revisionist and out of that marriage, she gave birth to a daughter, but she was killed by the revisionist, whereas the case of the revisionist was that his nikah was never solemnized and they never lived as husband and wife together.

Limited Scope of Revisional Court

Question whether the respondent 2 was a married wife of revisionist, is a question of fact and thus, this court cannot upset the finding of the trial court by entering into re-appreciation of evidence, unless it is shown such a finding is not based on evidence or some patent error of jurisdiction is shown. In the instant case, no such eventuality could be shown. In fact, if the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the Revisional Court is very limited.

Further, the Court added that in view of evidence on record, the grant of maintenance from the date of application cannot be said arbitrary or against law. The quantum of maintenance also appeared reasonable and appropriate.

“If a party deliberately delays the proceedings for long period, such party must not be allowed to take advantage of such tactics.”

 High Court found no illegality, perversity or error of jurisdiction in the impugned order.

While parting with the decision, Court added that the Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. [Irshad Ali v. State of U.P., Criminal Revision No. 1555 of 2020, decided on 08-01-2021]


Advocates who appeared on behalf of the parties:

 Counsel for Revisionist: Krishna Mishra

Counsel for Opposite Party: G.A.

Legislation UpdatesStatutes/Bills/Ordinances

Governor of Madhya Pradesh promulgates the Madhya Pradesh Freedom of Religion Ordinance, 2020.

Purpose of this Ordinance

To provide freedom of religion by prohibiting conversion from one religion to another by misrepresentation, allurement, use of threat or force, undue influence, coercion, marriage or any fraudulent means and for the matters connected therewith.

Prohibition of unlawful conversion from one religion to other religions [Section 3]

The said ordinance states that no person shall:

  • Convert or attempt to convert, either directly or otherwise, any other person by use of misrepresentation, allurement, use of threat or force, undue influence, coercion or marriage or by any other fraudulent means;
  • Abet or conspire such conversion

Complaint against conversion of religion [Section 4]

No police officer shall inquire or investigate except upon written complaint of a person converted in contravention of Section 3 above or his parents or siblings or with leave of the Court by any other person who is related by blood, marriage or adoption, guardianship or custodianship as may be applicable.

Punishment for contravention of provisions of Section 3 [Section 5]

Imprisonment for a term not less than one year but which may extend to 5 years and the person shall also be liable to not less than Rs 25,000 fine.

There are certain proviso clauses mentioned under the said Section.

Marriages performed with the intent to convert a person shall be null and void [Section 6]

Marriages performed in contravention of Section 3 shall be deemed to be null and void.

Jurisdiction of Court [Section 7]

To declare the marriage null and void, the petition shall be presented by any person mentioned in Section 4 before the family court or where a family court is not established, the Court having jurisdiction of a family court within the local limits wherein, —

  • The marriage was solemnized or
  • Respondent at the time of the presentation resides or
  • Either parties to the marriage last resided together or
  • Where the petitioner is residing on the date of presentation of the petition.

Inheritance Right [Section 8]

Child born out of a marriage performed in contravention of Section 3 will be legitimate and succession to the property by such child shall be regulated according to the law governing inheritance of the father.

Right to Maintenance [Section 9]

Woman whose marriage is declared null and void under Section 7, children born out of that marriage shall be entitled to maintenance.

Declaration before conversion of religion [Section 10]

Any person who desires to convert shall submit a declaration to that effect 60 days prior to such conversion to the District Magistrate stating his desire to convert without any force, coercion, undue influence or allurement.

Section 11 states the punishment for violation of provisions of Ordinance by an institution or organization.

Burden of Proof [Section 12]

Burden of Proof as to whether a conversion was not effected through misrepresentation, allurement, use of force, threat of force, undue influence, coercion or by marriage or any other fraudulent means done for the purpose of carrying out conversion lies on the accused.

Investigation [Section 14]

No police officer below the rank of sub-inspector of police shall investigate any offence registered under the ordinance.


Also Read:

Prohibition of Unlawful Religious Conversion | Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 [Brief Explainer]

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Sanjib Banerjee and Arijit Banerjee, JJ., observed that an adult woman is free to marry the person of her choice covert.

In the instant matter, it was traced out that the girl’s age was 19 years old and she married a person of her choice and doesn’t want to return to her parental home.

Upon the petitioning father complaining that his daughter’s statement under Section 164 of the CrPC may not have been recorded in an atmosphere where she felt comfortable, the 19-year-old girl was required to meet the senior-most Additional District Judge and for sufficient care to be taken so that she was not under any coercion or undue influence.

Despite a clear and clean report, father harboured some suspicion.

Bench held that,

If an adult marries as per her choice and decides to convert and not return to her paternal house, there can be no interference in the matter.

Matter has been listed on 24-12-2020.[Palash Sarkar v. State of W.B., WPA No. 9732 of 2020, decided on 21-12-2020]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J., dismissed an application for grant of pre-arrest bail to the petitioners. The petitioners apprehend arrest in connection with Dumraon PS Case No. 201 of 2019 dated 08-06-2019, instituted under Sections 341, 323, 498A, 307 and 34 of the Penal Code, 1860 and Section 3/4 of the Dowry Prohibition Act, 1961. The petitioners are the father-in-law and mother-in-law of respondent 2.

Earlier on 03-09-2020, the Court had recorded that a consensus has been reached whereby the petitioners and their son is ready to keep respondent 2 in the matrimonial home with love and affection and the willingness is reciprocated by the respondent as well. The petitioners and their son were to work out modalities of the reunion of the husband and wife.

However, it is conveyed by Digvijay Kumar Ojha that the petitioner’s son has filed a divorce petition in Bhopal against respondent 2 on 31-08-2020. Initially, the counsel had stated that the petition has been filed on 09-10-2020.

The Court found this revelation with respect to the date of filing the divorce petition to be irrelevant as it has been categorically stated in the pleadings that petitioner’s and their son are willing to keep respondent 2 in their matrimonial home.

The son (respondent 2’s husband) had filed a case for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 which has been allowed ex-parte in his favour. Thereafter, the divorce case has been filed.

The Court is of the opinion that the conduct of the petitioners has cast a shadow of doubt over their intent. When they had already filed an application for anticipatory bail and the suit for restitution has been decided in the favour of the petitioner’s son, then going ahead a divorce petition makes absolutely no sense especially in view of the Covid19 pandemic. It appears that this is just a ploy to defy the stand taken by the petitioners earlier that they were willing to keep respondent 2 in their home. The Court can observe that whatever ensued is the result of a well planned strategy devised by the petitioners where, by first filing an application for restitution of conjugal rights and taking a stand before the Court in the present proceeding that their son was ready to keep the wife with all love and affection and they had no objection to their matrimonial life and in support thereof, showing that he has filed an petition for restitution of conjugal rights, and then getting the same decreed ex-parte, knowing fully well that the petition filed at Bhopal would be difficult to be contested by the opposite party no. 2, who is living at Dumraon in the district of Buxar, especially in the present times and then getting ex-parte decree and then filing a petition for divorce, raises grave misgivings about the conduct of the parents and their son.

The Court is of the understanding that it has been deliberately misled through the categorical pleadings in the application which was again reiterated by the petitioner’s counsel. In the garb of asking for a chance to work out things, the petitioners and their son were trying to fool the Court.

On the issue of the divorce petition, the Court observed that mere filing of the petition does not act as a roadblock in the parties willing to resume their matrimonial relationship and if the petitioners and their son were really desirous of the same then they should have done it already. It is evident that both the pleading and the stand of the petitioners lacks bona fide and has been done solely with the purpose of getting the Court to grant them indulgence.

Counsel for the state, Suresh Prasad Singh has submitted that independent witnesses have confirmed the allegations of there being a demand of dowry right after the marriage.

In view of the above, the present application has been dismissed by the Court denying relief to the petitioners.[Jai Kishun Yadav v. State of Bihar, 2020 SCC OnLine Pat 1808, decided on 19-10-2020]


Yashvardhan Shrivastav, Editorial Assistant has put this story together

Op EdsOP. ED.

Introduction

Marriage is a legally and socially sanctioned union, usually between a man and a woman, that is regulated bylaws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners.[1]  Concept of marriage which is sought to be between a man and a woman dates back to 2350 BC[2], but it is in the recent times when we have started talking about something which is not normal, for society, that is, same-sex marriages, the practice of marriage between two men or two women. Although same-sex marriages have been in practice for a long time, Indian Law has not succeeded in providing equal rights to homosexual couples as provided to the heterosexual ones.

Until the beginning of the 21st century, no country had laws that recognised the legality of same-sex unions. Over the past two decades, twenty-eight countries have recognised same-sex unions. However, there has been a trend of African nations criminalising homosexuality and enforcing draconian laws with extremely harsh penalties. The global trend has been a slow change in the legal status of same-sex marriages. Most of the western nations have decriminalised[3] homosexuality and are well on the way to recognise same-sex marriage.[4] The areas that have started criminalising homosexual behavior are limited to the Middle-East[5]and Africa, with some notable exceptions.[6] With the judgment of Navtej Singh Johar  v. Union of India,[7] homosexuality was decriminalised in India by the Supreme Court. However, marriage in India is a community matter more than a State matter which gives rise to a battle between public policy, religion, and social norms, such battles arise every time a group of people is included or excluded, from being able to marry.[8] This paper aims to explore the social and legal aspects of same-sex marriage in India. It examines the roots of marriages and marriage-related laws in India to explain why it is important to provide legal sanction to the same-sex union. Other than the legal benefits, studies have shown many benefits of gay marriages, especially psychological benefits, they have found that people in gay marriage enjoy better health.[9] In the end, the paper also suggests some changes that can be brought in the existing personal Hindu Law: the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 to include same-sex couples.

Homophobia: A Western Concept?

To be objective about the importance of the study, it is imperative to start with the origin of homophobia in India. The revolution for gay rights and marriage, at first glance might appear to be related to the push for same-sex marriages in the west, but in reality, it is not. Same-sex desire and sexual activities have been discussed rather in a non-judgmental and even celebratory manner, in both ancient and pre-colonial Indian literature. Homophobia was a concept developed during the colonial period and became a notion in post-colonial time and is continuing even today.[10]

Homosexuality in ancient India

Ruth Vanita, in her article ‘Same-sex weddings: Hindu traditions and modern India’[11] discusses thoroughly the origin of this homophobia and how Indians accepted it as something prohibited in their religion. She considers homophobia as a generalized attack by British missionaries on Indian sexual mores and practices. Colonisation besides other negative impacts has a major part in taking away our true Indian culture. The introduction of the term ‘homosexuality’ and the laws prohibiting ‘unnatural’ sex was done by imperial might. This is evident from various Hindu literature, medieval history, mythology, and depiction of homosexual couples in the temples of Khajuraho and Mughal chronicles.[12]  There was, indeed, disapproval for homosexuality but homosexuals were not ostracised, society was tolerant towards them and they were not hounded for being a homosexual. There were several rulers who, according to historical text, had sexual attractions towards other men. Alauddin Khilji’s[13] son, Mubarak, was known to be in a relationship with one of the noblemen in his court. Babur, who founded the Mughal dynasty, also wrote about his love for men. He has mentioned his love for a boy named Baburi.[14]  Amongst other vast ancient Indian literature, Kamasutra by Vātsyāyana has attained universal recognition. In the context of special or non-normative sexual practices, the text responds, ‘in all things connected with love, individuals may engage in different types of sexual activity, provided everybody should act according to the custom of the country and his inclination’.[15] Classic texts like Kamasutra talk about man-man unions. According to which, if two male friends have complete trust in each other and are  well-wishers of each other, they may mutually unite. These texts not only describe but also prescribe ‘queer’ sexual practices such as ‘auparishtaka’ i.e. mouth congress. The word used in Kamasutra for same-sex unions is parigraha, which has received different interpretations by different scholars. Some scholars translate it as ‘marry’, while others as ‘embrace’.[16]  The word homosexuality came in India with the introduction of the term ‘homophobia’. This word emphasises sex rather than love. Notably, the classic texts head towards love and pleasure rather than procreation. Historians believe that the conservative outlook towards same-sex relations started with the British rule and became even stronger after independence.

Origin of homophobia

It is evident not only in the British anti-sodomy law implemented in the  Penal Code of 1860, but also in the subtle heterosexualisation of all literature: canons and genres (such as the Urdu ghazal or love poem, which historically gendered both lover and admirer as male) undertaken by literary critics, scholars, and authors.[17]  Most Indian nationalists internalised this homophobia and went on to see homosexuality as an untold crime. Homosexuality had never historically been viewed as unspeakable in Indian texts or religions. The Hindu faith is complex due to different religious lifestyles that prevailed in ancient India. One of the earliest treatises on Hindu Law, Manusmriti (Laws of Manu), prohibits men from practicing ‘ayoni’ (non-vaginal) sex.[18] However, no evidence has been found of anyone being punished or prosecuted for same-sex relations in ancient India. The new silence surrounding homosexuality is one reason why modern institutions such as the police force and educational and religious organisations today typically respond with horror and even violence to union of same-sex people.[19]

Section 377 IPC and its decriminalisation

Unnatural offences.– Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.[20]

Analysis of the judgment

Recently, a colonial-era law has been struck-off   by the Supreme Court.[21] The LGBTQ community remained ostracized for long until it ended. However, still there are challenges ahead. Well, the story is not black and white, there is much hiding amongst the grey. The opening statement of the judgment comprises of two great quotes by Johann Wolfgang von Goethe, “I am what I am, so take me as I am” the other by Arthur Schopenhauer, “No one can escape from their individuality” everyone is unique in their way.[22]  The rights mentioned in our Constitution are that of equality and liberty.[23] Our Constitution fosters equal rights to everyone. The court is the final keeper of the constitutional values and must do justice to the minorities and weaker sections of the society. The judgment mentions the interpretation drawn by the Supreme Court of Canada in same-sex marriages, which observed that the laws that deprive someone of basic human rights should be repealed.[24]

It has been observed that the society has transformed since 1860 when Section 377 was enacted. According to Section 377, sexual intercourse against the order of nature is criminal in nature. In other words, all non-penal vaginal sex was criminal in nature.

The Supreme Court in State of Keralav. N.M. Thomas[25] stated that the Constitution has transformed India from a medieval and hierarchical society into a modern and egalitarian society. The constitution aims to take the society towards a resplendent future. This implies that things that are digressive for society should be dealt with in the stipulated time. Therefore the purpose of the Constitution is to make progressive amendments for the society. This objective is covered under the ‘Transformative Constitutionalism’.

The idea of Transformative Constitutionalism is to embrace the basic constitutional values; such as justice, liberty, equality, and fraternity. This idea aims to identify the demands of current day society and to oppose ideas that are stagnant and static. It gives the Indian Constitution the power and ability to transform with transforming times otherwise the society will be unable to comply with the changing times and will ultimately fail to progress. Stagnant society is not a good sign for mankind and humanity.

Constitutional morality

The Navtej Singh Johar Bench also quoted Dr. Ambedkar’s idea of Constitutional Morality which along with other organs of the State is a duty of the judiciary. According to Ambedkar, justice, liberty equality and fraternity cannot be attained without the organs of the State being loyal to Constitutional Morality.[26] When a provision is challenged to be against the fundamentals of the Constitution, be it the case for minority or majority, it has to be dealt with justly and in consonance with the constitutional principles.[27] If LGBTQ is declined their basic rights, the courts that have been the statue of justice for so long will be under a big question mark. If any provision is found to fail the parameters of the Constitution it should be abrogated.

LGBTQ: Equally entitled to human rights and dignity

The perspectives of human dignity were also taken into consideration while deciding this matter. The Right to Dignity is an inseparable aspect of Right to Life and is protected under Article 21 of the Indian Constitution.[28] It has got space under the international domain as well in the Universal Declaration of Human Rights, 1948[29] which talked of all individuals being born free and equal in dignity and rights. These rights of human dignity are for everyone, the prisoners, the murderers, and the criminals. In Maneka Gandhi v. Union of India,[30] Krishna Iyer, J. observed that dignity is a sacrosanct human right and if it is lost, the life loses its substance and meaning.

Liberty of choice and human dignity

The Court relied on a few foreign judgments which talked about individual choices and the freedom of choice being an important aspect of liberty. Liberty and dignity are two sides of a coin and they cannot remain independent of each other. Every human being has a certain sexual orientation, biological characteristic differs naturally. It is only the society that creates discontentment. The American Psychological Association defines sexual orientation as a feeling of romance, sexual attractions towards both sexes, and identification of a person based on these attractions, the stretch of attraction ranging from hetero to homosexual ones. Also, the Association says that homosexuality is neither a mental problem nor  a physical one but the community of LGBTQ is just a minority in our society.[31]

Everyone has the right to equality and non-discrimination, right to recognition, right to privacy, freedom of opinion and expression. These principles read along with Articles 14, 15, 19 and 21 declared the colonial rule unconstitutional and scrapped Section 377 of the  Penal Code. From the last one-and-a-half century about a couple of hundred people were prosecuted under this section.[32] They did not cause any harm to others but were just trying to enjoy their fundamental rights which the law transgresses. The Court found that the State has no reason to not scrap this law, as it is a violator of the fundamental structure of the Constitution.[33]

Deepak Mishra, CJ, thanked all the attorneys involved with Navtej Singh Johar case as their arguments helped in doing justice. The Court observed that a heterosexual boy and a homosexual boy are like right-handed and left-handed people. Few are born left-handed and few grow to become left-handed but under any circumstance, they are both normal.[34]

The British Prime Minister Theresa May in 2018, admitted that although laws criminalising same-sex interactions are legacy of her country, they are discriminatory and violence-inciting, they were wrong then and they are wrong now and such laws should be put to an end.[35]

It was also observed in Navtej Singh Johar case that since the Right to Privacy has become an intrinsic part of the Indian Constitution, and sexuality is an innate part of privacy and it is protected under Articles 14, 15, 19 and 21 of the Constitution, hence this law is ultra vires.[36] The Court hence overruled Suresh Kumar Kaushal’s judgment[37] that criminalised ‘carnal intercourse against the order of nature’ even if performed consensually as defined in Section 377. Furthermore, same-sex relationships cannot be seen as a parallel to the offence of bestiality and sodomy. The colonial era criminalising act of same-sex relation has been found failing to comply with the Articles 14, 15, 19 and 21 of the Constitution. The Bench consensually decided to decriminalise homosexuality.[38]

The mere fact that they are a minuscule fraction of 1.3 billion[39] Indians, it cannot be taken as a ground to deprive them of their basic fundamental and human rights. The Court cited that the founding fathers of our Constitution never wanted the Constitution to be discriminatory on any grounds, it promised everyone to be treated equally. The Constitution grants the change of beliefs and also guarantees the authority to secure the rights of the LGBTQ community. Indu Malhotra, J. said that History owes an apology to the members of the LGBTQ community and their families as they were living a life full of fear of persecution and reprisal.[40] The misapplication of the provision did cost them a lot for a long time.

Importance of marriage

As argued by William Eskridge, “marriage is an institution that is constructed, not discovered by societies”.[41]  The definition of marriage was different for different cultures at different times. Marriage has transformed from being a sacred religious institution to a legal contract, from a patriarchal institution to a more equitable partnership built on freedom and equality. However, in the orthodox understanding, marriage has always been considered central to sexual expression and the procreation of children for the formation of the community, and social and political alliances. It has also been considered significant for the regulation of property. Even though all these functions cannot be denied but the contemporary understanding of the marriage institution argues that marriage in contemporary society should be understood foremost as an institution that provides expression to love.[42]

The very first debate for legal marriage in India dates back to the 1860s, when the colonial State received a petition signed by Keshub Chandra Sen of Brahmo Samaj, to legitimise marriages amongst the members of Brahmo Samaj. The motive was to provide the Samaj the right to freely marry as per their ‘rites of conscience’. The Governor General’s Legislative Council began proposing the introduction of a civil marriage law for all Indians, paying little heed to the particular request and situation of the Keshubite petition. The idea behind the law was that those willing to dissent from the religious traditions of the marriage rites would be able to get State’s approval, even though their families, castes, or ethnic groups disowned them. The debate after the publication of this purpose put ‘native’ communities in a state of turmoil, desperate to represent themselves to be morally and socially better than the degenerate ‘Europeans’ in marriage and kinship relations. This led to the introduction of the first civil marriage law in India, Act II of 1872 which was later replaced by Act III of 1872.[43]

It shall be noted that the major idea behind the introduction of civil law for marriage was to provide a legal sanction to the marriages of people who have been outcast by the traditional societies, similar was the motive behind the introduction of the Special Marriage Act, 1954 by the Indian Parliament. The NALSA judgment has put the Right to Determination of Gender under Article 21 of the Indian Constitution.[44] There is a need for legal acceptance of marriage rights for the LGBTQs. It takes time to get social acceptance but over the years, it can be seen that legal recognition precedes social acceptance. We saw in case of reservation when the V.P. Singh Government showed a green flag to the legislation there was turmoil all over the country, people protested but with the flow of water in the river, they accepted it.[45] Decisions like these take time to make their way through societal dogmas especially in a diverse country like India.

Why the decriminalisation of homosexuality is not enough?

Although governments after governments have introduced various laws for the protection of rights of trans people even in the 21st century, we are yet to provide the community with their right to marry a legal sanction. As discussed above, sometimes law acts as a catalyst to social acceptance. There was a time when love marriages did not exist at all. Marriage was incomplete without the blessings of the parents. With the legalisation and introduction of civil marriage laws, the couples found a way to get social acceptance through legal sanctions. There have been many revolutions for better laws for the trans community but the right to marriage has not so far been a major issue. One argument can be, as India, unlike western democratic nations, though being a secular country, is yet to take full control of marriage. Marriage is considered as a subject under the control of the particular community itself. Indian Law accepts and recognises a marriage performed according to any Hindu community rites and practices as legitimate. Most of the Hindu marriages in India today take place without a marriage licence and are, mostly, never registered with the State. Marriages in India are considered to be a family matter conducted within the community. The approval of elders is considered to be important to approve a marriage. This implies that society plays an important role in deciding what may constitute a marriage.

History of same-sex marriages in India

In 1991, ABVA, in its report “Less Than Gay: A Citizens’ Report on the Status of Homosexuality in India”[46], among other things, demanded the amendment of Marriage Acts to recognise same-sex marriage. The organisation reiterated its demand in 1999 in “For People like Us”.[47]  The later was in response to the suicide by two homosexual women, Monalisa Mohanty and Mamata Rani Mohanty.[48] For apparent reasons, their union was accepted neither by society nor by their families. Courageous enough, the ladies registered their union but, as expected, their action faced criticism, and their family tried to separate them. They saw no other option but to end their lives. Many other homosexual couples have also tried to register their holy union by claiming their rights in the court of law. However, the question here arises, why, even after the acceptance of  homosexual community, the community still needs to claim the very rights given to every individual by the Constitution itself?

The judgment in Arunkumar v. Inspector General of Registration [49] unarguably, led to a great step for the community, both socially and legally. However, the judgment in no way universally legalises same-sex union, which means the LGBTQ community is yet to be accorded a fundamental right to marry under Article 21 of the Constitution of India. Leela Namdeo and Urmila Srivastava’s marriage is a prominent union in the history of  LGBTQ community. In 1988, the two policewomen married following all the rituals of a typical Hindu ceremony.[50]  In response, they were suspended from their jobs but fortunate enough to be supported by their family. Since then, newspapers have been reporting a series of same-sex marriages. Some receiving applaud but most of them criticism.

There have been many instances where parents in spite of knowing about their children’s sexual orientation  got them  married  to the opposite gender. These sorts of things take place in Indian society to avoid public discomfort and to maintain  so-called social dignity. Being different is not a felony that it needs some charge or exculpation. There is a real-life example of how complicit the cases can turn under such circumstances. There have been many instances where a gay man was forcibly married to a girl by his parents and they conceived a child out of the wedlock. After some time the girl found out that her husband was having an extramarital affair with another man. Now the story is as we think it is. The question is how many lives it affected, the two families , the life of their unborn child, friends and acquaintances and all of this just because of homophobia of the  parents.

There are certain other rights “normal couple” do have like the right to inherit other’s property. These people don’t need any special rights but basic human rights that everyone else is entitled to. They should not be discriminated for who they are. Every person is entitled to the same respect, right and dignity. Marriage is an inherent part of personal rights; K.S. Puttaswamy v. Union of India[51]held that “marriage and family are part of an individual’s sphere”.

If we shift our focus to basic democratic rights, the prime right among them all  is the right to cast vote. The All India Hijra Kalyan Sabha struggled for more than a decade to get the right to vote. They were ultimately given the right to vote in 1994 i.e. after 47 years of independence.[52] There have been many struggles and movements since then, as of now much water has flown and the LGBTQs began to get representation in the offices at the helm. Manabi Bandopadhyay, Joyita Mondal, Swati Baruah are few names to take. India is blessed that both the major political parties of i.e.  Bhartiya Janta Party and  Indian National Congress advocate for rights of LGBTQ. Their manifestos included the promise to grant equality and equal protection of laws.

Benefits of a legal sanction to the marriage

Legal benefits

Unlike the United States of America and some other countries, India does not provide significant marriage benefits and privileges. Some of the aims behind introducing the Civil Marriage Act were to provide marriage security, remove gender-based injustice, and curb child marriages. The institution of marriage provides certain rights and privileges to the persons in matrimony in the society and due to the aforesaid exclusion; homosexual couples are denied an opportunity to enjoy similar rights and privileges. Being married carries along with it the right to maintenance, right of inheritance; a right to own joint bank accounts and lockers; nominate each other as a nominee in insurance, pension and gratuity papers, etc. Among other things, in a country where rules are prone to change, registering the wedding also makes things smoother. Further, for a couple to fly abroad on their spouses’ visa and to apply for citizenship in a foreign country, the marriage certificate is mandatory.

Physiological benefits

Other than legal benefits, numerous studies have proved that providing a legal sanction to same-sex couples shows conspicuous improvement in both their physical and mental health. Perhaps, the saying “married people live healthier, happier and longer lives holds true.”[53] Discriminatory environments and public policies create stigma among the public and can give rise to a feeling of rejection, shame, and self-esteem issues. Restricting marriage to heterosexual couples denies access to an important social institution for lesbian, gay, and bisexual adults and, in a significant sense, makes them second-class citizens. Before and after the legalisation of same-sex marriage, a study in Massachusetts tracked a group of gay and bisexual men, and found that these men were less likely to seek mental health or medical treatment visits. Two analyses revealed that lesbian, gay, and bisexual individuals, who married following the judgment legalising same-sex marriage by the Californian Supreme Court, reported less psychological distress and were more likely to receive coverage of the health insurance.[54]

Discrimination at every level

As far as discrimination against the community is concerned it is not only happening at a small level where people are not much literate, but at the international levels too. Runner Santhi Soundarajan won a medal in 2006 Asian Games and later when her identity was revealed, she was ripped off her medal. Ultimately she could not bear the heat and committed suicide.[55] Dutee Chand came out after the judgment, which she said gave her the desired encouragement to announce that she belongs to the LGBTQ community. The repercussions were obvious, she faced being ostracized by her parents and the village. Her parents and closed ones said that she had brought shame and disgrace to the village.[56] The stigma stuck around homophobia should end now. They are like any other normal being. The purpose of quoting the above examples was to prove that homophobia is prevailing at every level of the society in India. Decriminalisation of homosexuality was just an opening of the door to a larger battle of protecting human rights and equality.

Survey to show the awareness regarding the issue

A total of 100 law students were asked to submit responses to a few questions, using Google forms, out of which 6% were homosexual, 6% were bisexual and the rest were heterosexuals. When asked if they had ever heard of homosexuality before the judgment of Navtej Singh Johar v. Union of India,[57] only 73% replied in affirmative. Considering the survey was conducted among the law students the percentage is quite low. The fact that homophobia has led to ignoring the community as a whole is unfortunate. About one-fourth of the respondents responded negatively to the question of a change in perspective towards the homosexual community after the judgment, all those who responded negatively did not necessarily mean that they opposed  it, some used to advocate the rights even before the passing of the judgment. While the others who were influenced by the judgment say that the judgment opened their eyes, one said that it made them realise “how late we are,” few said that “it is a natural thing and they should not be deprived of the rights that others have since birth.”

The next question was regarding the feeling that attraction towards someone of the same gender is a kind of mental/physical illness. 87.7%  responded with a clear no, while 9.2%  were unsure and 3.1%  believed that it is a kind of illness.

Next question was that if homophobia could be observed in the surrounding society. As expected, 80.6%  of the people said yes, it is there, while 18.4%  felt that there was no homophobia around them.

The next question was regarding the statement made by Indu Malhotra, J. that “we owe an apology to the LGBTQ community”,[58] a majority of 84.6%  agreed with her, 7.7% said maybe we do, while the rest 7.7%  responded with a no.

The last question in the series was regarding the legalisation of same-sex marriages in India. 99.9% of the students replied in affirmative but there was one response that said, “No, Indian society is still not ready for this change”. Indian society was not ready to provide women with the right to vote either, but they eventually applauded the decision.

How the current laws can be reformed?

Even though in India, marriage is considered to be a sacrament and weddings have a strong religious and cultural significance as well as social importance, same-sex couples are still struggling for validation and sanction of their union by the Government. In the current context, the best possible way to provide sanction to same-sex unions would be bringing reforms in Indian personal laws. India has different personal laws for almost all religions when it comes to marriages, considering the different rituals. The religious ceremonies are an essential part of the marriage but it is also important to note the point of view of Scottish legal scholar Henry Maine, legal advisor to the Viceroy of India in 1862.[59] Maine came out with the Native Marriage Act that created a non-religious marriage for everyone willing to take that route. His theory after receiving a lot of criticism from traditionalists eventually led to the creation of the Special Marriage Act, 1954.[60]

The Hindu Marriage Act, 1955

Hindu, Sikh, Jain and Buddhist unions come under the purview of the Hindu Marriage Act, 1955[61] which states that a marriage may be solemnised between any two Hindus.  The Act is slightly neutral on gender, as in place of male and female it mentions bride and bridegroom. Hence, it is possible to argue that same-sex couples may use this interpretation of the definitions of bride and bridegroom as gender-neutral. This approach has been tried by lesbian couples, where one partner presented herself as the bride and the other as the bridegroom. However, this approach shall not stand the statutory and common interpretation of these terms. The common and normalised interpretation also promotes gender stereotypes, as it pre-sets the roles in the marriage. Recognition of same-sex marriages under Hindu personal laws can be obtained by various approaches and one of them can be the interpretation of the existing laws to permit gender-neutral definition of these terms. Another approach can be explicitly amending the existing law to include same-sex marriages.

Ruth Vanita also suggests a different approach,[62] where she talks about providing recognition to the LGBT community’s marriages as a community of its own that has its customs and practices. Just like Arya Samaj and anti-Brahmin, whose Self-Respect Movement in Tamil Nadu led to the formulation of their own marriage rituals and practices by amending Section7 of the Special Marriage Act.[63]  The LGBT community could agree on a common marriage practice and seek recognition under the Act but the difficulty is that members of the LGBT community are governed by different personal laws and follow different customs and practices. Unlike Arya Samaj or the followers of the anti-Brahmin movement, they are not united by a desire to bring about specific reforms in Hindu marriage ceremonies.[64]  The only feasible approach among the above mentioned three approaches is perhaps, amending personal laws to include same-sex marriages. Not only in the Hindu personal laws, but the recognition of same-sex marriages is also necessary in the Special Marriage Act, to avoid the religious barrier.

The Special Marriage Act, 1954

The SMA, 1954, is a secular legislation which facilitates marriages between male (at least 21 years old) and female (at least 18 years old) irrespective of their religion. The Act aims to provide sanction to marriages of the people belonging to different religions or the people who do not wish to  remain bound to their particular laws. Under this law, instead of a religious ceremony, a Marriage Officer registers the union.[65]   To include homosexual couples in this Act would only require amending Section 4(c) of the Act.[66] In any case, even if personal laws are amended to recognise same-sex marriages, the SMA would have to be amended to accord the same recognition to relationships between persons belonging to different religions.

While the change in question is easy to draft and cannot be said to interfere with religious freedoms, it is bound to generate vocal opposition. The amendment to the SMA would be similar to the laws permitting same-sex marriages enacted in other countries. Today, twenty-eight countries have enacted such laws starting from the Denmark in 1989[67] to Costa Rica in 2020.[68]  Similarly, fifteen States in the USA have passed laws permitting same-sex marriages. However, there are various anti same-sex enactments as well. The US Congress enacted the Defense of Marriage Act, 1996 (‘DOMA’) to deny federal benefits to same-sex couples married under State laws. While DOMA was struck down by the US Supreme Court[69] and the Obama Administration also did not support the Act, the challenge to DOMA in the Supreme Court was vigorously defended by Republican groups. Such actions produce a political backlash, varying across areas.[70] Legalising gay marriage in States like Massachusetts generated little political opposition since the majority of residents were in support of it.[71] However, the backlash in Ohio relating to a judgment in favour of gay marriage was extremely strong. George Bush, the Republican candidate, enjoyed a double-digit increase in the percentage of votes by the religious, the elderly, working class, and African Americans groups that disproportionately opposed gay marriage.[72] Even in a country where the battle for LGBT rights has been fought tenaciously over several decades, the strong opposition to recognise same-sex unions still exists. An even greater backlash is highly probable in India, especially considering that it is a country that has taken 70 years after independence to even decriminalise homosexual acts.

Conclusion

A government may define marriage but it cannot tell people whom to love, neither can it exert exclusive control over marriage nor people’s understanding of marriage.[73]

Sexuality is but one of the many areas where religious and civic authority interact, and definitions of the purpose of marriage is another.[74]  Societies have resolved the intertwined issues of sexuality, reproduction, and marriage in myriad ways. Their responses regarding the morality, desirability, and administrative perquisites of same-sex partnerships have been equally diverse. Notably, however, by the beginning of the 21st century, most countries opted for one of only four legal resolutions to these intersecting problems: to ignore same-sex partnerships, to criminalise them, or decriminalise them, or to grant them a status similar or equal to that of heterosexual marriage. Most of the countries either choose to ignore them by describing homosexuality as a mental disorder or decriminalise their existence as India did.

After the judgment that struck down Section 377[75], Guruswamy and Katju met few parents having homosexual children to know the status quo[76]. Most of the parents were, indeed, grateful for the Supreme Court’s verdict.[77]  Indeed, the journey ahead is long and arduous, but young people in India are ambitious and have their entire lives ahead of them. During Section 377 hearings, many of the petitioners emphasised how this country, India, was as much theirs as anyone else’s. They wanted the Constitution to reflect their needs and rights in light of the changing times and that is exactly what happened.

It is shameful that most of the people are not even aware of the third community and their rights. It was shocking when famous actor Ayushmann Khurrana, who released a  movie “Shubh Mangal Zyada Savdhan” on a misconception that same-sex marriages are legal in India. To which he did apologize later but this shows the lack of awareness among people towards this issue. It may seem a less important issue, relatively, but in a country of almost 1.3 billion people, of which the LGBTQ+ community comprises 7-8%[78] (no wonder many more who are still scared to come out) of the population, why should the community be denied  any rights that every fellow human being gets?

The law was changed not the society. The striking of Section 377 only managed to recognise LGBTQ as a community. It did not consider their right to marry. Non-recognition of their marriages not only promotes the stigma attached but also deprives them of the rights that heterosexual couples get such as the right to adoption, maintenance after divorce and compensation in case of death of the partner at work, etc.

The right to adoption is governed by the Hindu Adoption and Maintenance Act, 1956,[79] and Central Adoptive Response Authority. Under the Act, same-sex couples cannot adopt a child unless one of the partners adopts the child as a single parent.[80] However, this would mean that the other parent does not have any legal rights on the child. Also, a single male cannot adopt a girl child which restricts the scope for male homosexual couples.

Maintenance is covered under the Protection of Women from Domestic Violence Act, 2005[81]  and Section 125 of the Criminal Procedure Code of India,[82] both of these Acts as also pointed out by the Supreme Court in Indra Sarma v. V.K.V. Sarma,[83] are gender-specific and do not cover homosexual partnerships. Similar is the case with the Workmen’s Compensation Act, 1923[84] , and other Acts involving the benefits of marriages.

With Denmark being the first country to recognise same-sex partnership as a civil union and Netherland being the first country to officially legalise the union, most parts of  Europe have successfully provided recognition to same-sex partnership in some or the other way.[85] Every person is entitled to the same respect, rights, and dignity. Marriage is an inherent part of personal rights; Justice K.S. Puttaswamy v. Union of India held that “marriage and family are part of the individual’s sphere”.[86] It is high time that India gives the community what they deserve and as  Indu Malhotra, J. rightly said, “We owe an apology to the community”;[87] the apology would only be counted by considering them as a part of the society and not someone outcast by the society. In a secular country like India recognitions like civil union, civil partnership or registered partnership will only create chaos which is why the only feasible way is to amend the existing personal marriage laws.

Current scenario

In a recent PIL[88] filed by Abhijit Iyer Mitra, Gopi Shankar, Gita Thadani and G. Oorvasi; it is contended that there is no distinction between heterosexual and homosexual marriage pertaining to the Hindu Marriage Act, 1955.[89] In response to which Solicitor General of India, Tushar Mehra  said that homosexual marriages were never promoted by  Hindu culture. Mr Mehta in his arguments used the words “husband” and “wife” many times. He argued that all the laws related to marriage and related rights mostly use the terms “husband” and “wife” for instance domestic violence laws use the term ‘husband and his relatives.’ He further submitted that our legal system, society, and values do not recognise homosexual marriage. He argued that the laws made deal with husband and wife, in case of gay marriage, who will be called the wife?

It is very shocking that after two years of the landmark judgment in Navtej Singh Johar case, issues like these remain. The  Bench that struck off Section 377 quoted Goethe, “I am what I am so accepting me as I am” but it seems that the battle is going to harder and longer than expected.

As far as the mention of husband’s and wife’s in-laws are concerned, they could be replaced by the word “spouse” to avoid the discrepancies that may arise. This will not only include homosexuals in the laws related to marriage but also make these laws gender-neutral. For instance, domestic violence laws need to be gender-neutral to protect males as well. The article provides all the ways in which the current legal system can change to accommodate the LGBTQ+ community, and also argues that homosexuality has been part of Indian society for a long time and it was only during the colonial era that it was decriminalised.


*Rajiv Gandhi National University of Law, Patiala

[1] https://www.britannica.com/topic/marriage

[2] The origins of marriage, The Week, Jan 17, 2007.

[3]Toonen v. Australia, (1994) Priv Law P RPR 33, (Austl.); Lawrence v. Texas, 539 US 558,123 (S Ct. 2003).

[4] Obergefell v. Hodges, 576 US 644, (S Ct2015).

[5] Frank Bruni, Gay and Marked for Death, NY Times, Aug. 21, 2015.  https://www.nytimes.com/2015/08/23/opinion/sunday/frank-bruni-gay-and-marked-for-death.html; Robert Mackey, “Attack on Gay Pride Parade Shakes Israel’s Self-Image as Bastion of Tolerance”, NYTimes, July 30, 2015. https://www.nytimes.com/2015/07/31/world/middleeast/attack-on-gay-pride-parade-shakes-israels-self-image-as-bastion-of-tolerance.html

[6] David Masci; Elizabeth Sciupac; Michael Lipka, “Same-Sex Marriage Around the World”, Pew Research Centre, Oct. 28, 2019. https://www.pewforum.org/fact-sheet/gay-marriage-around-the-world/

[7] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[8] Nancy D. Polikoff, “We Will Get What We Ask for: Why Legalizing Gay and Lesbian Marriage Will Not “Dismantle the Legal Structure of Gender in Every Marriage,” 79 VA Law Rev. 1535–1550 (1993).

[9]Kamerow, Douglas, “YANKEE DOODLING: Does Gay Marriage Improve Health?” 346 BMJ, at 23 (2013). JSTOR, www.jstor.org/stable/23493476. Accessed 21 March. 2020.

[10]Vanita, Ruth, “Same-Sex Weddings, Hindu Traditions and Modern India”, 91 Feminist Review 47, 47–60 (2009). JSTOR, www.jstor.org/stable/40663979. Accessed 21 March. 2020.

[11]Id.

[12]Sanjana Ray, “Indian Culture Does Recognise Homosexuality Let Us Count the Ways”, The Quint, Sept. 11, 2018. https://www.thequint.com/voices/opinion/homosexuality-rss-ancient-indian-culture-section-377

[13] Khilji ruled Delhi Sultanate between 1296 and 1316.

[14] Ray, supra Note 10, at 3.

[15] Vātsyāyana, The Kamasutra, Benares :Jai Krishna-das-Haridas Gupta, 1929.

[16]Id.

[17]Transgressive territories: Queer space in Indian fiction and film, PhD (Doctor of Philosophy) thesis, University of Iowa, 2009.

[18]Manusmriti translated by Sir William Jones in 1794.

[19]  Ruth, supra Note 10, at 3.

[20] Penal Code, 1860, Section 377.

[21] Navtej Singh Johar  v. Union of India, (2018) 10 SCC 1.

[22]Id, para 2

[23] Articles 14, 15, 16, 21 of the Indian Constitution.

[24]Navtej Singh Johar v. Union of India, (2018) 10 SCC 1  

[25] State of Kerala v. N.M. Thomas, (1976) 2 SCC 310.

[26]Béteille, Andre, “Constitutional Morality”, 43 Economic and Political Weekly 35, 35–42, (2008).

JSTOR, www.jstor.org/stable/40278025. Accessed 29 May 2020.

[27]  C. Golaknath  v. State Of Punjab, AIR 1967 SC 1643.

[28] K.S. Puttaswamy  v. Union of India, (2017) 10 SCC  1.

[29]Universal Declaration of Human Rights, 1948, Art. 1.

[30] Maneka Gandhi v. Union of India, (1978) 1 SCC 248 .

[31]https://www.apa.org/topics/lgbt/orientation

[32] Swati Sharma, “Societal Attitude Towards Homosexuality”, SSRN (2012).

[33]Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[34]Id.

[35] Pippa Crerar, “Theresa May says she deeply regrets Britain’s legacy of anti-gay laws”, The Guardian, April 17, 2018. https://www.theguardian.com/world/2018/apr/17/theresa-may-deeply-regrets-britain-legacy-anti-gay-laws-commonwealth-nations-urged-overhaul-legislation

[36] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[37] Suresh Kumar Kaushal v. Naz Foundation, (2014) 1 SCC 1.

[38] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[39] Worldometer, Population. https://www.worldometers.info/world-population/india-population/

[40] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[41] W. N. Eskridge Jnr, “A History of Same-Sex Marriage”, 79 Va L Rev 1419, at 1485, (1993). https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2503&context=fss_papers

[42] Eleanor Curran, Hobbes Comes out for Equal Marriage, KAR, 161-178, at 162, (2017).

https://kar.kent.ac.uk/62317/1/15032-0509-PIII-009.pdf

[43]Chatterjee Nandini, “English Law, Brahmo Marriage, and the Problem of Religious Difference: Civil Marriage Laws in Britain and India”, 52 Comparative Studies in Society and History, Vol. 52, No. 3, 524, 524–552, (July 2010).  JSTOR, www.jstor.org/stable/40864788.  Accessed 29 May 2020.

[44]National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

[45]Divyani Rattanpal, “How VP Singh Stirred a Hornet’s Nest With the Mandal Commission”, The Quint, 07 Aug, 2017. https://www.thequint.com/news/politics/how-vp-singh-stirred-a-hornets-nest-with-the-mandal-commission

[46] ABVA, Less Than Gay, at 3 (1991).

[47]Vanita, Ruth, “Wedding of Two Souls: Same-Sex Marriage and Hindu Traditions”, 20 Journal of Feminist Studies in Religion 119, 119–135, (2004). JSTOR, www.jstor.org/stable/25002506. Accessed 27 May 2020.

[48]Id.

[49] Arunkumar  v. Inspector General of Registration, 2019 SCC OnLine Mad 8779

[50] Eskridge, supra Note 41 , at 8.

[51] K.S. Puttaswamy v. Union of India, (2015) 10 SCC 92.

[52]“Eunuchs get voting rights in India”, UPI Archives, Nov. 7, 1994.https://www.upi.com/Archives/1994/11/07/Eunuchs-get-voting-rights-in-India/1844784184400/

[53]https://www.health.harvard.edu/mens-health/marriage-and-mens-health

[54] Mary Ann Lamanna; Agnes Riedmann; Susan D Stewart; Marriages, Families and Relationships: Making Choices in a Diverse Society 166.

[55]“Athlete Santhi Soundarajan attempts suicide”, Sep. 5, 2007.

https://www.hindustantimes.com/india/athlete-santhi-soundarajan-attempts-suicide/story-QzxxUV7se3nK1p60zXSsmL.html

[56]“Dutee Chand Comes Out of the Closet, Defends her Same-Sex Relationship”, May 2019.

https://www.outlookindia.com/website/story/sports-news-supreme-court-ruling-gave-me-belief-that-same-sex-relation-isnt-wrong-dutee-chand/330577

[57]  (2018) 10 SCC 1

[58]Id.

[59]Nandini, supra Note 43 , at 9.

[60]Starr, June, and Jane F. Collier, eds. History and Power in the Study of Law: New Directions in Legal Anthropology. Ithaca; London: Cornell University Press, 1989. Accessed June 5, 2020.

[61] The Hindu Marriage Act, 1955.

[62] Ruth Vanita, Democratising Marriage: Consent, Custom and the Law, in Law like Love, 351, (Arvind Narrain & Alok Gupta eds., 2011).

[63] Section 7, Special Marriage Act, 1954.

[64]Nayantara Ravichandran,“Legal Recognition of same-sex relationships in India”, Manupatra, 95-105.

[65] Special Marriage Act, 1954.

[66] Section 4(c), Special Marriage Act, 1954.

[67]Denmark was the first country to recognise same-sex unions as civil unions providing them certain rights and recognitions but the country officially legalised same-sex marriage in 2012, providing homosexual couples equal rights as heterosexual couples.

[68]https://en.wikipedia.org/wiki/Legal_status_of_same-sex_marriage

[69] United States v. Windsor, 2013 SCC OnLine US SC 86: 570 US (2013).

http://www.scconline.com/DocumentLink/Wepg2FPs

[70]“Home Share Economic Policy the Supreme Court struck down part of DOMA. Here’s what you need to know”https://www.washingtonpost.com/news/wonk/wp/2013/06/26/the-supreme-court-struck-down-doma-heres-what-you-need-to-know/

[71]Flores, Andrew R., and Scott Barclay,“Backlash, Consensus, Legitimacy, or Polarization: The Effect of Same-Sex Marriage Policy on Mass Attitudes”, 69(1) Political Research Quarterly, 43-56 (2016). Accessed June 3, 2020. www.jstor.org/stable/44018528.

[72] Michael J. Klarman, “From the Closet to the Altar: Courts, Backlash and the Struggle for Same-Sex Marriage”, Oxford University Press, Sep 7, 2012.

[73]Vanita Ruth, “Wedding of Two Souls’: Same-Sex Marriage and Hindu Traditions”, 20(2) JFSR, 119–135 (2004). JSTOR, www.jstor.org/stable/25002506. Accessed 26 May 2020.

[74]The Editors of Encyclopaedia Britannica, “Same-sex marriage”, Encyclopædia Britannica, Sept. 27, 2018. https://www.britannica.com/topic/same-sex-marriage (Access Date: May 26, 2020)

[75] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[76] Kanav Narayan Sahgal, “Same-Sex Marriage In India: Unveiling The Marriage Project”, May 19, 2020,

[77]“Lawyers Menaka Guruswamy & Arundhati Katju, the face of historic Section 377 verdict, reveal they’re a couple”, July 20, 2019.

https://economictimes.indiatimes.com/magazines/panache/lawyers-menaka-guruswamy-arundhati-katju-the-face-of-historic-section-377-verdict-reveal-theyre-a-couple/articleshow/70304218.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

[78]Supra Note 39, at 8.

[79] The Hindu Adoption and Maintenance Act, 1956.

[80]“India’s Adoption Policy Discriminative Against LQBTQIA+, 20 Million Kids Remain Without Family”, Nov. 10, 2019. https://thelogicalindian.com/exclusive/adoption-policy-discriminative-against-lqbtqia/

[81] Section 20, The Protection of Women from Domestic Violence Act, 2005.

[82] Section 125, Criminal Procedure Code, 1973.

[83] Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755 .

[84] Workmen’s Compensation Act, 1923.

[85] Same-Sex Marriage Around the World, supra Note  6, at 2.

[86] K.S. Puttaswamy, supra Note  51, at 12.

[87] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[88]Abhijeet Iyer Mitra v. Union of India, WP (C) No. 6371/2020 & CM Appl. No. 22554/2020

[89] Nilashish Chaudhary, Not Allowing Homosexual Marriage a Violation of Right to Life: PIL in Delhi HC Seeks Recognition Of Same-Sex Marriage, (13-9-2020)

https://www.livelaw.in/top-stories/not-allowing-homosexual-marriage-a-violation-of-right-to-life-pil-in-delhi-hc-seeks-recognition-of-same-sex-marriage-162869https://www.livelaw.in/top-stories/not-allowing-homosexual-marriage-a-violation-of-right-to-life-pil-in-delhi-hc-seeks-recognition-of-same-sexmarriage-162869

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Sureshwar Thakur and Chander Bhusan Barowalia JJ., while allowing the present petition said, “Marriage neither alters the relationship between the married daughters with her parents nor creates severance of a relationship. A son remains a son and his marriage does not alter or severe his relation with his parents, likewise, a daughter is always a daughter to her parents, her marriage also does not alter or severe her relation with her parents. If the State even draws a thin line of distinction based on gender, then that line has to withstand the test of Article 15 of the Constitution of India, which prohibits discrimination on the basis of religion, race, caste, sex or place of birth.”

 Facts

Facts of the case are briefly enumerated herein;

  1. That on 08-05-2019, Thakur Dass, father of the petitioner, who was a class IV employee in the office of District Ayurvedic Office, Kullu, died in harness.
  2. That the petitioner, her sister and mother are the survivors of Thakur Dass and there is no male member in their family.
  3. That as per the petitioner, she, her mother and sister, were dependant on late Shri Thakur Dass, and her mother and sister are unwilling to opt employment.
  4. That the petitioner, who is M.A. (Hindi) and has diploma in Computers, applied through an application for compassionate appointment, duly supported with the affidavits of her mother and sister purveying their ‘No Objection’.
  5. That the annual family income of the petitioner’s family is Rs 63000 falling well within the prescribed limit of Rs 225000, for a family of four members.
  6. That the cause of action arose on 22-06-2020 when the application of the petitioner was rejected on the premise that “there is no provision in the Policy for grant of employment assistance to the married daughter of the deceased Government employee.”
  7. That the petitioner has approached the present forum so as to declare the said policy as unconstitutional on the ground of being gender discriminatory, unjust and in contravention with the principles of equality.

Contentions

Counsel for the petitioner, Maan Singh, argues that the aforementioned clause of the policy has no rationale with the object sought to be achieved (of providing compassionate appointment). Moreover, just as a son of an employee who dies in harness, remains son throughout, likewise, a daughter remains daughter irrespective of any contingency or change in marital status. It was argued, “A married daughter cannot be discriminated merely because she is married, whereas no such rigor is applicable to a married son. Marriage alone cannot constitute a ground for discrimination and constitutionally State cannot be allowed to use this assumption of marriage, being a rationale for hostile discrimination denying benefits to a married daughter, especially in the wake of the fact that equal benefits are being extended to a son, whether married or unmarried.”

Counsel for the respondents, Hemant Vaid, J.S. Guleria and Hemanshu Mishra, argued that the petitioner is ineligible for appointment on compassionate grounds as the policy is only applicable to the dependents of the deceased Government employee and the marriage of the petitioner, in this case, disentitles her to be counted as a dependent of the deceased government employee. As per the respondents, elements of the policy of compassionate appointment are not only based on financial circumstances, but also on social circumstances such as in the present case.

 Observations

In addition to its decision, the Court cited the following cases;

In a judgment by Uttranchal High Court; Udham Singh Nagar District cooperative Bank Ltd. v. Anjula Singh, it was said, “Non-inclusion of a ‘married daughter’ in the definition of a ‘family’, under rule 2(c) of the 1974 Rules and the note below Regulation 104 of the 1975 Regulations, thereby denying her the opportunity of being considered for compassionate appointment, even though she was dependent on the Government servant at the time of his death, is discriminatory and is in violation of Articles 14, 15 and 16 in Part III of the Constitution of India.”

High Court of Madras in, N.Uma v. The Director of Elementary School Education, observed, “(…) artificial classification between married son and married daughter only on the basis of sex would tantamount to gender discrimination. If a married son is considered to be a part of the family, this Court is at a loss to understand as to why a married daughter should not be included in the definition of family.”

Vimla Srivastava and others 2016(1) ADJ 21 (DB), “Marriage does not have and should not have a proximate nexus with identity. The identity of a woman as a woman continues to subsist even after and notwithstanding her marital relationship. The time has, therefore, come for the Court to affirmatively emphasis that it is not open to the State, if it has to act in conformity with the fundamental principle of equality which is embodied in Articles 14 and 15 of the Constitution, to discriminate against married daughters, by depriving them of the benefit of a horizontal reservation, which is made available to a son irrespective of his marital status.”

Reflecting upon the object of having the policy for compassionate appointment and the duty of the State to ensure welfare for all, the Court under Para 21 of the judgment said,  “The object of compassionate appointment is not only social welfare, but also to support the family of the deceased government servant, so, the State, being a welfare State, should extend its hands to lift a family from penury and not to turn its back to married daughters, rather pushing them to penury. In case the State deprives compassionate appointment to a married daughter, who, after the death of the deceased employee, has to look after surviving family members, only for the reason that she is married, then the whole object of the policy is vitiated.”

 Decision

While allowing the present petition and issuing necessary directions to the respondent authorities, the Court held, “After incisive deliberations, it emerges that core purpose of compassionate appointment is to save a family from financial vacuum, created after the death of the deceased employee. This financial vacuum could be filled up by providing compassionate appointment to the petitioner, who is to look after the survivors of her deceased father and she cannot be deprived compassionate appointment merely on the ground that she is a married daughter, more particularly when there is no male child in the family and the petitioner is having ‘No Objection Certificates’ from her mother and younger sister, the only members in the family.”[Mamta Devi v. State of Himachal Pradesh, 2020 SCC OnLine HP 2125, decided on 28-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Madras High Court: A Division Bench of N. Kirubakaran and P. Velmurugan, JJ., while addressing the present petition observed that, Court fails to ascertain how women consent to get married to life convicts.

The present petition was filed by the wife of the life convict who got married to him when he got married when he came out on parole. The petitioner sought leave for 30 days for her husband to make arrangements for the livelihood of her family members.

S.G. Vedha Priyadharshini, Counsel appeared for the Petitioner and R. Prathap Kumar, Additional Public Prosecutor appearing for the Respondents.

Probation Officer in its report recommended 30 days’ leave to the convict which was sought by the petitioner.

Taking into consideration the above-stated report along with earlier orders of the Court, the bench is inclined to grant 30 days’ leave to the convict.

Accordingly, the life convict was directed to be released on 01-10-202 without a police escort and the Convict was directed to surrender before the prison authorities on 30-10-2020.

However, the petition was kept pending as the Court had impleaded National Commission for Women and the State Commission for Women to device a mechanism by which it is ascertained as to whether women are getting married to life convicts on their own accord or by force or coercion.

Hence, the Court raised the query:

“Whether the women marrying the life convicts are examined by the State Commission for Women or National Commission for Women to ascertain as to whether the willingness of the marriage or sign for the acceptance of the marriage has been obtained from the women?”

Bench noted that in many cases, women get married to the life convicts and this Court fails to find out as to how the consent of the women has been obtained. The rights of women have to be safeguarded. Usually, no girl will come forward to marry a life convict.

Nowadays, it is seen that it is difficult for a normal man to get married as modern girls are putting so many conditions for marriage. When that is so, it is unbelievable or surprising to see that a woman on her own volition giving consent to marry a convicted person for a life without husband’s companionship, love and care, which will amount to a violation of human rights.

National Commission for Women filed the response and the State Commission for Women’s response is still awaited. [Saibunisha v. State, 2020 SCC OnLine Mad 2733, decided on 30-09-2020]

Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of H.C. Mishra and Rajesh Kumar JJ., rejected the prayer and dismissed the appeal being devoid of merit.

The facts of the case are such that marriage of the appellant and his wife was solemnized in the year 2007 as per Hindu rites and rituals in the presence of all family friends and relatives and two children are born out of the wedlock. The appellant alleged that wife has been living separately and on numerous incidents caused mental agony to the appellant. He has further alleged in the appeal that the acts of the wife amount to cruelty and desertion of the wife. A suit was filed by the husband for divorce under Section 13 of the Hindu Marriage Act, 1955 on grounds of cruelty, desertion and mental incapacity of the respondent-wife. The Trial Court decided the matter in favour of the wife and aggrieved by the same, the instant appeal was filed challenging the same order.

The appellant represented himself in person and submitted that the wife behaved psychic and rudely and treated him and his parents with utmost cruelty. He cited various incidents to support his argument along with two witnesses, one himself and his mother, namely, Kaushalya Devi but did not produce any documentary evidence.

Counsel Sujeet Neepulam representing the respondent-wife denied allegations of cruelty, desertion and mental illness and submitted further that her actions of leaving home and staying with parents are not willful as the appellant and his family were demanding dowry, refusing which she was ousted from the marital home and brought back and ousted again on many occasions. Four witnesses, namely, Ashok Saw, Naresh Saw, Praveen Kumar and herself were examined to support her argument alongwith documentary evidence i.e. a mutual divorce application dated 13-07-2009 sent by the husband to wife after signing, a letter dated 30-07-2010 to her father giving threat, copy of an FIR instituted by the respondent-wife under Section 498 A of Penal Code, 1860 and Section 3/4 of the Dowry Prohibition Act, 1961  compromise copy after the appellant was arrested subsequent to the filing of FIR and other pertinent documents to support her plea. It was further submitted that the respondent is still willing to lead a respectable conjugal life with her husband, but the husband is not willing to keep her.

The Court observed that appellant was unable to present any substantial evidence except oral evidence of his and his mother whereas the respondent-wife presented various documentary proofs which demolish the case of cruelty from her side instead makes it clear by looking at the mutual divorce application and a written letter of threat to her father or the fact that she compromised to secure bail for the petitioner is enough to indicate the willingness of the respondent-wife to resume the respectable conjugal life with the appellant.

The court relied on judgments titled Jorden Diengdeh v. S.S. Chopra, (1985) 3 SCC 62 and Kaslefsky v. Kaslefsky [1951] P. 38 and held that any husband desirous to get rid of his wife may get desired result by driving out his wife from matrimonial home by force or creating a situation and thereafter taking plea of desertion for more than two years. The law is clear that if one of the parties to the matrimonial home, voluntary and without any plausible explanation has left the matrimonial home giving no option to the other party, then it amounts to desertion. Desertion is a willful and voluntary act by the party to leave something without any rational reason. In the present case, the husband is at fault and this is the reason for separate living of both the parties. Hence, the argument that living separately itself is sufficient in the eyes of law for granting the divorce is not acceptable.

In view of the above, decree for divorce rejected and appeal dismissed.[Sanjay Kumar v. Suman Kumari, 2020 SCC OnLine Jhar 773, decided on 08-09-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Kerala High Court: P.V. Kunhikrishnan, J., allowed the anticipatory bail application of the applicant-accused in connection with the FIR registered for offence punishable under Section 376 read with Section 34 of the Penal Code, 1860.

The factual matrix of the case is such that it has been alleged that the applicant has committed rape on the victim in room No. 8 of Kripa Annex, Ernakulam North with the help of the co-accused.

Counsel for the applicant, Latheesh Sebastian has vehemently denied these allegations levelled against the applicant by submitting that the accused and the victim are in love and that the case has resulted out of a misunderstanding with the father in law of the victim. The father-in-law of the victim who happens to be the de-facto complainant has filed an affidavit in this Court stating that the marriage of the applicant and victim has been fixed. The victim has also forwarded an affidavit stating that she has no objections if the present proceedings are quashed. The counsel stated that he is in the process of getting the proceedings quashed. With the quash proceedings at the brink, it would be an act of grave injustice if the applicant is arrested.

Counsel for the state while opposing the bail called for the imposition of stringent conditions in a situation where the bail is granted. It’s been stated that the case is made out of the statement given by the victim.

The Court drew an inference from the principle enunciated in the case of P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 66 that “bail is the rule and jail is the exception”.

The Court upon perusal of the facts, circumstances and arguments advanced observed that there is a love affair between the victim and the applicant based on the affidavits by the de-facto complainant and the victim. Even though marriage will not wipe off the offence but the fact has to be considered that the victim and accused are on their way of solemnizing a wedding in the near future.

In view of the above, the present application has been allowed, granting anticipatory bail to the applicant.[Amal Sha v. State of Kerala, 2020 SCC OnLine Ker 3495, decided on 24-08-2020]

Case BriefsForeign Courts

Court of Appeal, Ireland: Donnelly, Ní Raifeartaigh and Binchy JJ rejected an application for family reunification sought by an Afghan couple who got married when the husband was already in a valid, subsisting marriage, holding that the recognition of polygamous marriages is contradictory to Irish law and public policy.

The appellant-husband originates from Afghanistan and was declared a refugee in 2016. After the death of his first wife, and while waiting for the determination of his refugee application, he entered into a second marriage in Ireland. While this marriage was still subsisting, he married the appellant-wife in Pakistan and applied for family reunification under Section 18 of the Refugee Act, 1996. He divorced his second wife subsequently, but the Minister for Justice and Equality refused the application for family reunification, holding that the appellant-wife would not qualify as his “spouse” within the meaning of Section 18 of the Act, 1996. The High Court refused their application for judicial review and the appellants’ challenge this decision in the instant application.

Section 18 states that where a person is a defined member of a refugee’s family, the Minister must grant that person permission to enter and reside in the State, subject to requirements of national security and public policy. The High Court had reasoned that Irish law did not recognize the marriage of the appellant to his third wife because it would contradict public policy, considering that polygamous marriages are void ab initio under Irish law. A subsequent divorce from an earlier wife does not validate the marriage with the later wife if it was, in fact, polygamous on the date of marriage. As a result, the appellant-wife did not satisfy the condition laid down in Section 18(3)(b)(i) of the Act, 1996, which required the marriage of the applicant to be recognizable in Irish law.

In the present appeal, the appellants argue that ‘spouse’ within the meaning of Section 18 does not refer to a spouse in a marriage recognized by Irish law, but to a spouse in a valid marriage according to the law of its place of celebration. The Court rejected this argument, reiterating an earlier Supreme Court judgment which stated that “any national legal system that is called upon to make a judgment as to what marital arrangement it will or will not accept must determine the matter in accordance with its own rules.” It found that ‘spouse’ within the meaning of S.18 does not include a person who became the refugee’s spouse when the refugee was still in a valid, subsisting marriage. While recognizing the power of the Minister to disentitle/limit a person who would otherwise be qualified under Section 18(5), Donnelly J observed that Section 18(3) is not to be given an expansive reading to include spouses not recognized under Irish law. The Court upheld the High Court’s Judgment and dismissed the appeal. [I. H. Afghanistan v. Minister for Justice and Equality [2020] IECA 241, decided on 10-08-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ., while addressing a matrimonial application stated that,

“Marriage is no doubt a sacrament, but it cannot be a one sided affair.”

Present appeal has been preferred against the Judgment of Family Court wherein the marriage between the appellant/respondent and respondent/petitioner was dissolved as the same was sought on grounds of cruelty and desertion within the meaning of Section 13(1)(i–a) and (i–b) of Hindu Marriage Act.

Facts

Respondent/Petitioner alleged that the conduct of the appellant/respondent was extremely cruel and he possessed a callous and indifferent attitude since the initial years of marriage.

It was also discovered that he had many personality and behavioural problems, wife time and again tried to cope up with husband’s shortcomings an tried to help him acquire stability and status in life, many times forgiving his violence.

On repeated occasions, she found to her consternation, that the appellant/respondent made no effort to either settle down in his job or contribute to the household including taking care of their child’s educational needs.

Things reached a breaking point when despite the request of the respondent/petitioner not to invite his parents to their transit accommodation at Jawahar Lal Nehru University which had limited space and to request them to stay with his sister who was residing in Gurgaon, the appellant/respondent threw a tantrum and left the house in October 2011 without understanding that the reason for the said request was only the pre- board exams of their daughter.

Premised on the above-stated facts, respondent/petitioner filed for divorce.

Appellant/respondent preferred the present appeal on the ground that the petition for divorce has been filed by the respondent/petitioner after nearly 20 years of the marriage and therefore, it ought to have been dismissed.

Counsel for the appellant contended that, language used by respondent/petitioner in her letters does not demonstrates any hard feelings between the couple and thus the story of cruelty was just a figments of imagination of respondent/petitioner on which marriage could not have been dissolved.

Analysis and Decision

A drowning man clutching on to a straw

It is quite evident from the letters written by the respondent/petitioner that while she was doing her very best to preserve the marriage, there was no reciprocation from the appellant/respondent.

“I have been writing to you every week regularly. There is no reply from you? I have left 4-5 inlands in our room letter holder. Pick one of them and write back soon.” In the letter dated 29.07.2000, once again, it starts “how are you? There is yet no letter from you.” Therefore, to submit that these letters disclose a ‘happy family’ scenario, is to blink at the truth.

Bench while noting the log list of instances of cruelty, stated that,

repeated onslaught on her emotions even subsequent to these instances took a toll on the physical and mental health of the respondent/petitioner.

All the relevant events that have continuously occurred in the lives of the parties, reflect a one sided relationship where the appellant/respondent took everything for granted, with no sense of responsibility, while the entire burden of trying to keep the marriage alive was left for the respondent/petitioner to shoulder.

Court also added that, this is a typical case that showcases as to what would amount to cruel behaviour on the part of one spouse to the utter detriment of the other.

Material on record goes to amply demonstrate the sincere efforts made by the respondent/petitioner to salvage the marriage and show that she did more than what was her duty, to preserve it.

Thus in light of the above observations, Family Court’s decision is upheld. [Venkatesh Narasimhan v. V. Sujatha, 2020 SCC OnLine Del 571 , decided on 01-05-2020]

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Representations have been received from various stakeholders seeking clarification as to whether a license is required to be obtained for the purpose of utilization of sound recordings in the course of any marriage related function. The representations have been examined.

2. Section 52 of the Copyright Act, 1957 enlists certain acts which do not constitute an infringement of Copyright. Specifically, Sub-section (1) (za) of the aforementioned section, states that: “the performance of a literary, dramatic or musical work or the communication to the public of such work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority. Explanation-For the purpose of this clause, religious ceremony including a marriage procession and other social festivities associated with a marriage.

“the performance of a literary, dramatic or musical work or the communication to the public of such work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority.

Explanation-For the purpose of this clause, religious ceremony including a marriage procession and other social festivities associated with a marriage.”

3. In view of the provision contained in Section 52(1) (za) of the Act, read with the explanation thereto, it is evident that the utilization of any sound recording in the course of religious ceremony including a marriage procession and other social festivities associated with a marriage does not amount to infringement of copyrights and hence no license is required to be obtained for the said purpose.


Ministry of Commerce & Industry

No. 10-26/2019-CO

[Public Notice dt. 27-08-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: Dhiraj Singh Thakur, J. directed the respondents to ensure the protection of life and liberty of the petitioners as they were under constant threat of their family members for marrying outside their castes.

The petitioners had attained the age of majority and were married out of their own free will and without any undue threat or coercion. They had documents reflecting the marriage on record and their age proof. They stated that despite having married each other with their own free will and consent, the private respondents through the agency of police may try to harass them and get them framed in false cases.

The Court relied on the Supreme Court’s decision in Lata Singh v. State of U.P., (2006) 5 SCC 475 and held that the petitioners were free to marry anyone they like. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law.

The Court held that, “disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished.”  The Court further directed the administration/police authorities to see to it that the couple is not harassed by anyone nor subjected to threats or acts of violence. Anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.[Vinod Kumar v State of J&K, 2019 SCC OnLine J&K 669, decided on 22-07-2019]

Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J. allowed the petition filed by the husband and directed the Court of Judicial Magistrate First Class to stop all the proceedings against him under Section 376 of the Penal Code, 1860.

In the present case, the petitioner and the first respondent were in love with each other and petitioner had promised to marry her. Respondent had sexual intercourse with the petitioner on the basis of the promise of marriage. When the petitioner took her to the house of his relatives, they threatened her. Apprehending that they would harm her she escaped and reported the matter to police and charges under Section 376 of Penal Code, 1860 were set against him. After a short time span, both petitioner and respondent solemnized their marriage under the Special Marriage Act, 1954. Petitioner sought to set aside the proceedings against him by invoking power of the Court under Section 482 of the Code of Criminal Procedure, 1973.

The main question to be considered by the Court was whether the marriage between the accused and the victim can be considered as a sufficient ground to quash the prosecution proceedings against the petitioner.

The respondent submitted that she had no grievance against the petitioner and no objection in setting aside the proceeding against him. In the affidavit filed by the respondent she had stated that she was forced to sign the first information statement at the instance of her mother and other relatives and that she had no intention to implicate the petitioner in a case of rape.

The Court placed relevance on Anurag Soni v. State of Chhattisgarh, 2019 SCC OnLine SC 509 where the principle was laid that if it was found that from the inception the accused had promised the prosecutrix to marry her without any intention to marry and the consent for sexual intercourse was based on such promise then such consent could be said to be obtained on a misconception of fact as per Section 90 of IPC. It was also acknowledged that consensual physical relationship between the parties would not constitute an offence punishable under Section 376 of IPC and it must be carefully examined that whether the accused had actually wanted to marry the victim or had made a false promise of marriage only to satisfy his lust.

It was noted that in the present case, the petitioner had no fraudulent intention in promising marriage to the respondent. The promise made by him was not a false promise made only with the intention to satisfy his lust. This was evident from the fact that he married the victim lady within a short period after the incident.

Considering all the facts and circumstances it was a fit case for exercising jurisdiction under Section 482 CrPC, and proceedings against petitioner were set aside.[Denu P. Thampi v. X, 2019 SCC OnLine Ker 1639, decided on 27-05-2019]

Hot Off The PressNews

Supreme Court: A bench headed by Chief Justice Ranjan Gogoi dismissed a plea of a Kerala-based outfit challenging the constitutional validity of an ordinance which makes the practice of instant ‘triple talaq’ a punishable offence. The Court said that it would not like to interfere.

The Muslim Women (Protection of Rights on Marriage) Ordinance was first notified on September 19 last year, hours after the Union Cabinet had cleared it.

Instant ‘triple talaq’, also known as ‘talaq-e-biddat’, is an instant divorce whereby a Muslim man can legally divorce his wife by pronouncing ‘talaq’ three times in one go.

The ordinance making the practice of instant ‘triple talaq’ a punishable offence was issued for the third time in less than a year on February 21.

(Source: PTI)

Also read:

In the historic judgment, SC says that Triple Talaq is not fundamental to Islam; Practice set aside by a 3:2 majority

Lok Sabha passes Bill making Triple Talaq unconstitutional

‘Triple Talaq Ordinance’ promulgated in wake of ending the arbitrary custom of oral unilateral divorce

The Triple Talaq Bill passed in Lok Sabha

Triple Talaq ordinance re-promulgated

Case BriefsHigh Courts

Bombay High Court: The Bench of V.M. Deshpande, J. upheld the judgment of Additional Sessions Judge convicting the appellants for the offences punishable under Section 376(g), 506 and 34 of IPC.

Prosecution Case

On 8-12-2004, appellants came to the house of the victim where she resided with her husband and 2 children. They consumed liquor with her husband. When they were going to bring more liquor, the victim did not allow them. The appellants went away but after some time came back and started knocking the house door while threatening to kill victim’s husband. By this time, her husband felt asleep under influence of liquor. Afraid, the victim ran out of the house from the back door. The appellants caught her and took her to a secluded place where they committed forcible sexual intercourse on her against her will.

Trial Court’s decision and appellant’s challenge

The appellants were charge-sheeted for the above-mentioned offences and after appreciating the evidence, the trial court convicted them under the charges framed. S.S. Rao with C.R. Thakur, Advocates representing the appellants before the High Court challenged trial court’s judgment on various grounds. Much capital was made by the counsels to distrust the victim in absence of any injury on her private part.

Judgment of the High Court

After perusing the entire material available on record, the Court found no infirmity in the trial court’s judgment. All contentions raised on behalf of the appellants were rejected. Referring specifically to the ground of absence of injury, the court expressly observed, ” The marriage of the victim took place prior to 15 years and she is having two grown-up children aged 13 and 10 years. In light of this fact, one cannot expect injuries on vagina even if there is forcible sexual intercourse.”

On re-appreciation of the entire case, the Court dismissed the appeal. The conviction of appellants was upheld and sentence of 10 years imprisonment was confirmed. [Viru v. State of Maharashtra, 2019 SCC OnLine Bom 68, dated 07-01-2019]

Case BriefsHigh Courts

Kerala High Court: A Division bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ. allowed an appeal against the judgment of Family Court for the said court’s failure in conducting a proper enquiry and for failure in recording satisfaction based on such an enquiry conducted.

The appellant and respondent had jointly filed a petition for dissolution of their marriage by mutual consent Section 10A of the Divorce Act, 1869. The petition was allowed and respondent was granted permanent custody of their minor children. The appellant-wife challenged the said decree on the ground of court’s non-compliance to the mandatory procedural formality of interregnum waiting period.

The primary question for the determination of the court was as to whether a decree granting divorce by mutual consent can be challenged in an appeal filed under Section 19 of the Family Courts Act, 1984.

The Court observed that a decree under Section 13 B of the Hindu Marriage Act, 1955 is passed on the Court being satisfied that certain circumstances exist and certain conditions are fulfilled. Such a decree is not a decree passed merely on consent, but on the court being satisfied with the existence of those conditions. Relying on the decision of Gujarat High Court in Jyoti v. Darshan Nirmal Jain, 2012 SCC OnLine Guj 6283 it was held that in the present case since the lower court had failed to record its satisfaction under Section 10A(2) of the Divorce Act and not even followed the mandatory procedure of six months waiting period, therefore bar under Section 19 (2) of the Family Courts Act would not apply and the instant appeal would be maintainable.[Tiji Daniel v. Roy Panamkoodan,2018 SCC OnLine Ker 4145, decided on 17-09-2018] 

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Rajasekhar Mantha, J. allowed an appeal filed by the appellant against of the order of the trial court whereby he was convicted under Section 376 IPC.

The prosecution case was that the appellant had committed rape on the prosecutrix on the false pretext of marrying her. It was alleged that after the first occasion of sexual intercourse, the appellant promised to marry the prosecutrix to which she consented. Thereafter, as admitted by the prosecutrix, they remained in a love affair for 1 and half years where they cohabitated regularly. The prosecutrix had intercourse with the appellant on various occasions of her own free will. 15 days prior the complaint, they also tried to fly away but were caught by the mother of the prosecutrix. It was proved that the prosecutrix became pregnant and gave birth to appellant’s child. It was alleged that the appellant finally refused to marry her. Thus, the complaint was filed and the appellant was convicted as aforementioned.

The High Court perused the record and found that after the mother of the prosecutrix came to know about the affair on the night when the appellant and prosecutrix attempted to flee, she talked to appellant’s father. His father, however, refused to give consent to their marriage. The Court observed that the trial court ignored the fact that the prosecutrix continued to have sexual intercourse with the appellant of her own free will. It was never proved that the appellant, on the first occasion, did not intend to marry her. It was only the father of appellant who refused to accept her as the daughter-in-law. Consent of the prosecutrix for voluntary sexual intercourse, in this case, was obtained neither by fraud nor on a misconception of facts. Holding thus, the High Court set aside the order of the trial court and acquitted the appellant. The appeal was, thus, allowed. [Kalam Sk. v. State of W.B.,2018 SCC OnLine Cal 6548, decided on 20-09-2018]