The only thing that is ‘special’ about the Special Marriage Act of 1954 is that it allows and facilitates the registration of inter-religious marriages. In that sense, it is a legislative tool for social change, an attempt to remove a social barrier to the exercise of individual autonomy. In the last few years, the Supreme Court has championed the cause of individual autonomy in matters of love, sex and marriage, including in Shafin Jahan v. Asokan (2018), Shakti Vahini v. Union of India (2018) and Navtej Johar v. Union of India (2018). In Navtej Johar , not only did the Court hold Section 377 of the IPC to be unconstitutional, it explicitly recognised the rights of the LGBTQ+ community to express their individuality, sexual identity and love on par with heterosexuals, as fundamental to Articles 14 (right to equality), 19 (right to freedom), and 21 (right to life) of the Constitution.
Discrimination
A petition recently filed in the Kerala High Court by a male same-sex couple challenges the constitutionality of the Special Marriage Act on the ground that it discriminates against same-sex couples who want to formalise their relationship through marriage. At one level it seeks a simple and logical extension of the rights already recognised by the Supreme Court in Navtej Johar — the right of same-sex couples to express their sexual identity, right to privacy and non-interference in the conduct of their personal affairs, and the right to be recognised as full members of society. To refuse their plea would cause them very real, tangible damage, considering that marriage carries a range of legal rights and protections, available during the marriage as well as on its dissolution by divorce (the right to seek maintenance) or death (the right to inherit property).
A more esoteric, but no less devastating, deprivation caused would be the inaccessibility of symbols that are germane to how people visualise their identities and envisage their relationships. For better or for worse, marriage continues to be the cornerstone of social legitimacy and family in India. For most people, marriage, commitment and family are not abstract legal concepts, but stages of human development and aspiration which give meaning to their personal lives. They represent the sanctification and extension of the deep emotional and spiritual bonds that may often accompany sexual intimacy.
Aside from blatant homophobia, which the law ought not to legitimise, the reasons commonly cited as to why these symbols should be the preserve of opposite-sex couples do not stand scrutiny. Purportedly, the social purpose of marriage is to provide stability; financial, physical or emotional care and support; sexual intimacy and love to individuals; and to facilitate procreation and child-rearing. Aside from procreation, none of these objectives are dependent on the gender of the parties concerned, so much as on the bond they share and their ability to make the relationship work. And if procreation were quite so central to marriage, opposite-sex couples would be required to prove their fertility and, indeed, commit to having children before being allowed to register their marriage. As we know, that is not the case. The right or the legal ability to marry, it would appear, has little to do with the reasons commonly cited to deny marriage to same-sex couples. Therefore, any consideration of the law of marriage ought to be completely divorced from the mould that marriage is socially expected to fit.
A unique opportunity
The petition before the Kerala High Court represents a unique opportunity — a potential first step towards making marriage, as an institution, as a legal concept, more accessible and egalitarian, less arbitrary and exclusionary. It gives the High Court the chance to prioritise the fundamental and human rights of the petitioners over the abstract heteronormative tendency of the majority to deny legitimacy to relationships that challenge oppressive social structures and established hierarchies. In other words, it’s high time love and logic are given a chance to triumph over homophobic tradition.
Shraddha Chaudhary is a Senior Research Associate, Jindal Global Law School, Sonipat
