IN THE SUPREME COURT OF INDIA

CIVIL WRIT JURISDICTION

WRIT PETITION (CIVIL) NO. 1142 OF 2022
(Under Article 32 of the Constitution of India)

Utkarsh Saxena and Anr. … Petitioners

Versus
Union of India … Respondent

Written Submissions on Behalf of the Petitioners

Senior Counsel on Behalf of the Petitioners: Dr. Abhishek Manu Singhvi

Time Sought for Oral Arguments: 4 Hours

A. On the Interpretation of the Special Marriage Act..................................................... 2

I. Discrimination ......................................................................................................... 5
II. Freedom of Expression ......................................................................................... 10
III. Dignity .................................................................................................................... 11
IV. Remedies ........................................................................................................... 13
B. On the Constitutionality of the Notice-and-Objections Regime ............................. 16
I. Privacy ................................................................................................................... 19
II. Decisional Autonomy ............................................................................................ 21
III. Equality .................................................................................................................. 23
IV. Proportionality ................................................................................................... 25
C. On the Relief .............................................................................................................. 27
Appendix-I ......................................................................................................................... 30
Appendix - II ...................................................................................................................... 32
Appendix III ....................................................................................................................... 35

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1. These written submissions are being filed in compliance with the
order of this Hon’ble Court dated 06.01.2023, in a batch of writ
petitions concerning the legality of same-sex marriages in India
[Supriyo @ Supriya Chakraborty and Anr vs Union of India, WP
(Civ) No. 1011/2022]. Through this order, this Hon’ble Court
directed the petitioners to file a common set of written submissions
before the next date of hearing, i.e. 13th March 2023.

2. Petitioners’ written submissions in the captioned matter are divided

into three sections. First, Petitioners submit that the Special
Marriage Act 1954 [“SMA”] and Foreign Marriage Act 1969 [“FMA”],
when interpreted consistent with the Constitution, authorise the
solemnisation of same-sex marriages [A.]; secondly, Petitioners
submit that the notice-and-objections regimes under the SMA and
the FMA, which require publicisation to the world at large of an intent
to marry in advance of the marriage, are unconstitutional [B.]; and
thirdly, Petitioners outline what relief this Hon’ble Court may
consider granting in this matter [C.].

3. Petitioners seek the leave of this Hon’ble Court to file brief,

additional written submissions on the conclusion of the hearing.

A. On the Interpretation of the Special Marriage Act

4. Secular marriages in India are governed by the SMA. Section 4 of
the SMA - which regulates the conditions relating to solemnisation
of special marriages - uses the gender-neutral terms “a marriage
between two persons”, and “spouse.” In plain language, therefore,
the Special Marriage Act applies both to marriages between same-
sex couples, and opposite-sex couples.

5. However, a degree of ambiguity is introduced into the SMA by

sections 4(c), and 4(d) read with section 2(b) and the First Schedule
to the SMA. Section 4(c) introduces, as a condition for the
solemnisation of a special marriage, the requirement that “the male
has completed the age of twenty-one years and the female the age
of eighteen years.” Section 4(d) stipulates that the parties ought not
to be “within the degrees of prohibited relationship.” The term

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 “degrees of prohibited relationship” is defined in section 2(b), and
refers to “a man and any of the persons mentioned in Part I of the
First Schedule and a woman and any of the persons mentioned in
Part II.” Part I of the First Schedule consists exclusively of female
family members, and Part II consists exclusively of male family
members. Furthermore, the Second Schedule uses the words
“widower” and “widow”, the Third and Fourth Schedules “bride” and
“bridegroom”, and the Fifth Schedule “husband” and “wife”.

6. Consequently, while the SMA is meant to solemnise a marriage

between two persons, two of the pre-conditions for solemnisation
appear to restrict its application to heterosexual couples, i.e., a man
and a woman.

7. As a preliminary point, Petitioners respectfully submit that none of

the other conditions under section 4 (for instance, there should be
no living spouse, the parties should be able to give consent etc.) are
based upon a person’s ascriptive characteristics (such as race,
caste, ethnicity, national origin etc). The term ‘ascriptive’ refers to
attributes of an individual that are pre-determined or designated or
ascribed by society or other external norms. The implied exclusion
of LGBTQ+ relationships from the SMA, therefore, stands out as the
only exclusion that is based on a marker of identity.

8. The forward march of progress has caused this exclusion to be

legislatively or judicially removed in 32 jurisdictions that now legalise
same-sex marriage, an illustrative list of which include jurisdictions
as diverse as Argentina, Australia, Austria, Brazil, Canada, Chile,
Colombia, Costa Rica, France, Germany, Mexico, South Africa,
Spain, Switzerland, Taiwan, the United Kingdom, Uruguay, and the
United States of America.

9. Petitioners respectfully submit that SMA is reasonably liable to be

read down in a manner so as to validate and recognise same-sex
marriage. Consequently, subsuming same-sex marriages under the
SMA, does not require a finding of unconstitutionality.

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10. In its counter-affidavit filed before this Hon’ble Court,
Respondent objects to this reading of the SMA, primarily on the
basis that the very concept of marriage “necessarily presupposes a
union between two persons of the opposite sex”, and that this
definition is “socially, culturally, and legally ingrained into the very
idea and concept of marriage.” (Respondent’s Counter-Affidavit,
para 5). Notably, Respondent produces no evidence in support of
this claim. Furthermore, Respondent does not address the statutory
scheme regulating marriages in India, where the Special Marriage
Act (as will be pointed out below) was enacted as an alternative to
personal marriage laws, which were – indeed – based on a certain
cultural understanding of the nature of marriage.

11. Without, therefore, conceding the point, Petitioner submits, in

response, that marriage is a social institution (as argued below), and
society is characterised by its capacity to evolve. There is, therefore,
no timeless and immutable “concept” of marriage that exists outside
and beyond society, and is immune to change. Indeed, as recently
as one hundred years ago, child marriages were both legally and
socially acceptable; now, we understand consent to be a
cornerstone of marriage, and also understand that valid consent is
predicated upon the attainment of majority.

12. Respondent suggests that if indeed the concept of marriage

has evolved, the legislature is the only body that can bring about a
change in the law to reflect that evolution (Counter-Affidavit, para
9). Petitioners disagree. The present case does not ask the Court to
act as a substitute for the legislature, and alter the “concept of
marriage.” Rather, it asks the Court to find that the existing
legislative definition excludes a group of people solely by virtue of
their ascriptive characteristics, and that this exclusion is
unconstitutional. Such an exercise is well within the jurisdiction and
the domain of this Hon’ble Court.

13. To substantiate this submission, Petitioners will address their

contentions under the following heads of argument: non-

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 discrimination (I); freedom of expression and association (II); dignity
(III); and remedies (IV).

I. Discrimination
14. By prohibiting same-sex couples from solemnising their
marriages, the SMA discriminates on grounds of sexual orientation.
Sexual orientation is both a protected ground under Article 15(1) of
the Constitution (subsumed within sex discrimination), and - as an
ascriptive characteristic - attracts a higher standard of scrutiny under
Article 14 of the Constitution (Navtej Johar vs Union of India,
(2018) 10 SCC 1, paras 316, 637.3, 637.5). In other words, the
Court will be facially more suspicious of, and more readily inclined
to intervene with respect to, classifications that cause disadvantage
based on sex or gender.

15. The locus of discrimination in the present case is the exclusion

of same-sex couples from the social institution of marriage. The
institution of marriage, in our society, serves the functions listed
below. These are illustratively listed to show that marriage is not
simply a privilege or benefit, but is deeply embedded in society,
forming the very basis of a couple’s ability to fully participate in it:
a. For those who seek any form of marriage at all, it is a source
of social and community validation for a relationship,
expressed through official recognition by the State through its
laws.
b. Relatedly, the ability to marry - and the State and social
recognition that comes along with it - often provides a sense
of security to vulnerable couples, facing various forms of
stigma or pressure. In that sense, the ability or choice to marry
is needed most by those whose relationships are often
subjected to familial or community disapproval.
c. With respect to the partners themselves, marriage provides
greater financial - and other forms of - security, especially to
the more vulnerable partner.
d. Marital status is a gateway to a range of other legal and civil
benefits, in the domains of tax, inheritance, adoption, and
others. [see Appendix I]

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 e. In our society, marriage - and marital status - is a source of
dignity, fulfilment, and self-respect.
f. Marriage is an integral aspect of the ability to have, and enjoy,
a family life.

16. This demonstrates that marriage is not simply a benefit

conferred by the State, whose conditions it can therefore prescribe
without any constitutional scrutiny. The fundamental, structural role
that marriage plays in our society means that it is imbued with, and
overlaps with, constitutional values. The exclusion of one set of
people from accessing the institution, therefore, requires searching
judicial scrutiny on the touchstone of anti-discrimination doctrine.

17. Notably, Respondent agrees (Counter-Affidavit, paras 15-

18). In par 17, Respondent eloquently argues that “marriage and
the family are important social institutions in India that provide for
the security, support, and companionship of members of our
society.” Petitioners could not have put it better themselves. And
that is why, it is respectfully submitted, exclusion of individuals from
these valuable social institutions purely by virtue of their ascriptive
characteristics is unconstitutional.

18. Specifically, Petitioners submit that the exclusion of same-sex

couples from the SMA constitutes direct discrimination under Article
15(1), on grounds of sexual orientation, and is therefore ex facie
unconstitutional. Respondent’s submission that the discrimination is
not only on grounds of sex is untenable (Counter-affidavit, para
36). Given that “sexual orientation” has been read into “sex”, the
moment that Respondent submits before this Court that it has
defined marriage to mean a union between one man and one
woman, it is – ipso facto – discrimination on grounds only of sexual
orientation.

19. In any event, Petitioners respectfully submit that the exclusion

fails the test of Article 14. While there exists an intelligible differentia
(sexual orientation), there is no rational nexus with any legitimate
State purpose.

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20. First, it is important to reiterate that, in its origin and its
evolution, the SMA is an avowedly secular law, which was meant to
serve as an alternative for individuals who could not - or did not want
to - solemnise their marriages under applicable personal (religious)
law (Rajnesh vs Neha and Ors., (2021) 2 SCC 324, paras 15, 19).
As per the statement of objects and reasons of the SMA, the Act
was passed “to provide a special form of marriage which can be
taken advantage of by any person in India and by all Indian nationals
in foreign countries irrespective of the faith which either party to the
marriage may profess.” Consequently, unlike legislation such as, for
example, the Hindu Marriage Act, where the conditions for
solemnisation of marriages must comply with Hindu religion, the
SMA is an areligious or non-religious marriage-related legislation.
This addresses a point that Respondent makes repeatedly in its
counter-affidavit, namely, the cultural understanding of marriage
as a union between two persons of the opposite sex.

21. Indeed, in para 21, Respondent concedes that it has

designed and framed marriage laws as relatable to the customs of
various religious communities (Counter-affidavit, para 21).
However, as noted above, the question of how a - or any - religion
defines marriage is irrelevant to the legislative purposes of the SMA.
Without expressing any opinion on the place of same-sex marriages
within religion(s), it is respectfully submitted that other than alleged
invocations of culture and religion (which is the subject matter of
other petitions in this batch), there is no other putative,
constitutionally valid legislative purpose that justifies the exclusion
of same-sex couples from the purview of the SMA. Notably, the
Respondent does not attempt to provide one.

22. Secondly, the Respondent cannot argue – as it does in

paragraph 23 – that it has simply defined marriage as a union
between a man and a woman, and that that constitutes the
legislative policy (Counter-affidavit, para 23). This would be
circular and self-referential reasoning, which does nothing more
than equate the classification with the legislative purpose. This,

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 obviously, cannot be a valid defence to an Article 14 challenge, as -
in effect - any legislative classification can pass Article 14 scrutiny
by the State simply declaring that the classification is the purpose.

23. As an analogy, one can imagine the State announcing a

welfare benefit that it then declares off-limits for blue-eyed people.
On being challenged, the State simply says that it has “defined” the
welfare benefit as one that all persons but blue-eyed people are
eligible for, and that the legislative purpose is to exclude blue-eyed
people from accessing the said welfare benefit. It is respectfully
submitted that just as this self-referential reasoning would not pass
Article 14 scrutiny, so also the State’s argument that it has simply
“defined” marriage so as to exclude same-sex couples from
accessing the institution, must also be rejected.

24. For example, in Dipak Sibal vs Punjab University, 1989 2

SCR 145, paras 18-20, when the State sought to justify legislative
classification limiting enrolment in evening law classes to
government employees by deploying the self-referential reasoning
that the purpose was to provide legal education to government
employees - in effect, equating the classification with the purpose -
this Hon’ble Court struck down the classification on the basis, inter
alia, that the legislative purpose was “illogical.”

25. Therefore, it is not sufficient for the Union to state simpliciter

that, since marriage is by legal definition only a union between a
man and a woman, and since thus, the SMA’s legislative purpose is
to solemnise marriages fitting such definition, an otherwise suspect
classification on the basis of sexual orientation and gender would
be rendered constitutional.

26. In para 24 of its counter-affidavit, Respondent tries to buttress

this classification by referring to the “cultural ethos and societal
values” of the country. This has already been addressed above;
here, Petitioners respectfully add that the invocation of “societal
values” (even where such societal values have been established,
which is not the case here) cannot be used to defeat claims for equal

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 treatment and non-discrimination. By definition, equal treatment and
non-discrimination require challenging majoritarian social norms
(whether these norms exist in the domain of gender, caste, place of
origin, and so on); if society was already minded to accord equal,
non-discriminatory treatment to all, there would be no need for a
constitutional right to equality. In paragraph 35, Respondent makes
a faint reference to “social stability”, but provides no argument for
why the recognition of same-sex marriages under the SMA would
adversely affect social stability.

27. Thirdly, this leaves the only remaining legislative purpose as

animus against the LGBTQ+ community, and the refusal to treat
them as equal moral members of society, by offering them the same
range of rights and benefits as opposite-sex couples. It is clear that
any such purpose needs only to be stated to be rejected: as held in
Navtej Johar vs Union of India, supra (para 353), legislative
purpose cannot itself be discriminatory or unconstitutional. As noted
by the South African Constitutional Court in Ministry of Home
Affairs v Fourie 2006 (1) SA 524 (CC), para 71, the exclusion of
same-sex couples from the legal institution of marriage conveys a
message of unequal moral concern or respect of the Constitution:

The exclusion of same-sex couples from the benefits and

responsibilities of marriage, accordingly, is not a small and
tangential inconvenience resulting from a few surviving relics
of societal prejudice destined to evaporate like the morning
dew. It represents a harsh if oblique statement by the law that
same-sex couples are outsiders, and that their need for
affirmation and protection of their intimate relations as human
beings is somehow less than that of heterosexual couples. It
reinforces the wounding notion that they are to be treated as
biological oddities, as failed or lapsed human beings who do
not fit into normal society, and, as such, do not qualify for the
full moral concern and respect that our Constitution seeks to
secure for everyone. It signifies that their capacity for love,
commitment and accepting responsibility is by definition less
worthy of regard than that of heterosexual couples.

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28. By sending a message of and perpetuating the subordination
of a disadvantaged group of persons, the position that marriage is
the preserve of the heterosexual couple breaches this Hon’ble
Court’s understanding of substantive equality. (Joseph Shine v
Union of India, (2019) 3 SCC 39, para 172).

29. In addition to failing the classification test, it is also submitted

that the impugned exclusion is manifestly arbitrary. This is because
it privileges one conception of the “family unit” - i.e., a man, a
woman, and associated offspring - over other conceptions.
However, the Constitution does not authorise - or sanction - a
hierarchy between different conceptions of the family where unions
between some kinds of persons are more equal than others for no
reason other than their ascriptive characteristics.

30. Indeed, in Deepika Singh vs Central Administrative

Tribunal, 2022 SCC OnLine SC 1088, para 26, this Hon’ble Court
specifically held that “atypical family units” - specifically including
queer relationships - are “equally deserving not only of protection
under law but also of the benefits available under social welfare
legislation.”

31. It is therefore submitted that the legal privileging of the

heterosexual marriage-based family unit over others lacks any
“determining principles”, and therefore fails the test of manifest
arbitrariness. (see e.g. Joseph Shine vs Union of India, (2019) 3
SCC 39, paras 26-27).

32. For these reasons, it is respectfully submitted that insofar as

the SMA prohibits same-sex couples from solemnising their
marriages, it is directly discriminatory, and violates Articles 14 and
15(1) of the Constitution.

II. Freedom of Expression

33. The guarantee of freedom of speech and expression under
Article 19(1)(a) is not limited to verbal or written expression, but
extends to symbolic speech and expression (Union of India vs

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 Naveen Jindal, (2004) 2 SCC 510, para 90). Furthermore - and
crucially - the right is not limited to speech-acts performed in
isolation, but extends to participation in socially valuable forms of
expression, that are articulated in community: for instance, in
NALSA vs Union of India, (2014) 5 SCC 438, paras 69-72, with
reference to the transgender community, dress and food habits were
both considered to be protected forms of expression, by virtue of
their social salience to the community in question. Separately, the
act of casting a vote has also been held to be a protected
expression, because of the social meaning that it carries (Union of
India v. Association for Democratic Reforms, (2002) 5 SCC 294,
para 46.7).

34. Applying this doctrine, Petitioners respectfully submit that the

act of entering into the marital relationship, because of the social
and symbolic meaning that it carries, is protected expression under
Article 19(1)(a) of the Constitution.

35. Deprivation of the right to marry, therefore, must comply with

one of the eight sub-clauses under Article 19(2) of the Constitution.
It is respectfully submitted that none of the sub-clauses are available
to the State. In particular, the term “decency and morality” under
Article 19(2) must be read to mean not public morality, but
constitutional morality, i.e., morality infused by constitutional values.
This rules out any restriction upon the right that is based purely on
ascriptive characteristics, such as sexual orientation.

36. It is therefore submitted that the exclusion of same-sex

couples from the ambit of the SMA violates Article 19(1)(a) (and, by
extension, Article 19(1)(c)) of the Constitution, and is not saved by
Articles 19(2) or 19(4).

III. Dignity
37. The right to dignity is at the core of Article 21 of the
Constitution.

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38. Dignity - in the context of the State’s treatment of groups and
communities - requires the State to treat everyone with equal
concern and respect, and to not send a message that an individual,
or a set of individuals, are less worthy by virtue of their ascriptive
characteristics.

39. The central importance of marriage as a social institution - as

outlined above - means that the ability to participate in it on equal
terms is a question of dignity. When the State excludes a set of
people from participation in a valuable social institution, by
comparing their choice with the State proscribing what it considers
noxious business activities, it communicates both to the excluded
and to the rest of the society that these individuals are less than
complete moral members of society: it is, therefore, a message of
subordination.

40. There are many historical instances of the exclusion of a group

of people from a social institution being used to send a public
message about their worth as equal moral members of society:
these include, for example, caste-based restrictions on temple entry
(see Shri Venkataramana Devaru vs State of Mysore, 1958 SCR
895), rules that prohibited women from participating in certain “male”
professions (see Anuj Garg vs Hotel Association, AIR 2008 SC
663) the refusal to accommodate disability in public examinations
(Vikash Kumar vs Union Public Service Commission, (2021) 5
SCC 370), and many others. Over time, laws - and the judgments
of this Hon’ble Court - have removed these exclusions, on the
understanding that the ability to participate in the making and
remaking of social institutions is central to individual dignity. The
exclusion of LGBTQ+ people from the social institution of marriage
is one of the last remaining legal outposts that sanctions such
exclusion; it is therefore respectfully submitted that the removal of
this exclusion by this Hon’ble Court would advance the constitutional
goal of guaranteeing the dignity of all.

41. Respondent submits that the right under Article 21 has been
curtailed by virtue of a “legitimate state interest” (Counter-affidavit,

12
 para 40), which – it reiterates – is the “the acceptance of Indian
society based upon its own cultural and societal values (Counter-
affidavit, para 42), and “societal morality” (para 45). This
submission has been addressed in some detail above, and
Petitioners shall not reiterate it here; it suffices to say that
Respondent has neither established what societal morality is or
requires, and has also failed to demonstrate how the version of
societal morality that it articulates is in any way distinct from bare
animus against the LGBTQ+ community.

IV. Remedies
42. Petitioners respectfully submit that the present case does not
require a strike-down from this Hon’ble Court. It only requires a
declaratory judgement that, in accordance with well-established
principles of statutory interpretation and - when necessary - reading
down:
a. The word “man” in section 2(b) includes “any person”, and that
correspondingly, the word “woman” includes “any person”;
b. The words “man” and “woman” include trans-men and trans-
women, intersex and non-binary individuals as the case may
be; it is respectfully submitted that this would be in furtherance
of the judgement of this Hon’ble Court in NALSA vs Union of
India, (2014) 5 SCC 1. (The phrase ‘non-binary’ individuals
above means persons having gender identities that do not
conform to the traditional binary genders, i.e. male or female).
c. Section 4(c) enacts only an age-based exclusion for persons
otherwise eligible to marry under the provisions of Section 4,
and shall not be construed to impose any disabilities based on
gender, sexual orientation, or sexual identity of the parties. For
same sex couples, in particular, Section 4(c) can, without any
violence to fundamentals, be read as a single age-restriction,
be it 18 or 21;
d. The reference to “widow” and “widower” in Schedules II and
III includes “widow or widower” and “widower or widow”, as the
case may be, and shall not be construed to impose any
disabilities based on gender, sexual orientation, or sexual
identity of the parties. (This phraseology is entirely consistent

13
 with an interpretation which treats any surviving spouse in a
same-sex marriage as a widow/widower.)
e. References to “bride” and “bridegroom” in Schedules III and
IV includes “bride or bridegroom”, as the case may be, and
shall not be construed to impose any disabilities based on
gender, sexual orientation, or sexual identity of the parties.
(This phraseology is entirely consistent with an interpretation
which treats any spouse in a same-sex marriage as a
bride/bridegroom.)

43. In the alternative, assuming without conceding, that at the time

the SMA was passed, it was mainly, or possibly only, heterosexual
couples that were within the contemplation of the framers, it is
entirely permissible as an interpretive technique to expand the
existing words of a statute from its original intent to subsume the
evolutionary march of societal norms and contemporary realities
(State (through CBI) vs SJ Choudhary, (1996) 2 SCC 428; M/s
Laxmi Theatre Video vs State of Haryana, (1993) 3 SCC 715). In
State (through CBI) vs SJ Choudhary, supra, the Supreme Court
held that the word “handwriting” in Section 45 of the Evidence Expert
(which deals with expert evidence) would be read to include
“handwriting science”, thus bringing typewriting experts within its
ambit. In doing so, the Supreme Court applied the principle of
updating construction, quoting Francis Bennion on statutory
interpretation for the proposition that “the interpreter is to make
allowances for any relevant changes that have occurred, since the
Act's passing, in law, social conditions, technology, the meaning of
words, and other matters.” (para 10, emphasis supplied) In M/s
Laxmi Theatre Video, supra, para 7, similar logic was deployed to
hold that the word “cinematograph” covered video cassette players.

44. It is respectfully submitted that this principle is followed the

world over. In the specific context of marriage equality, the US
Supreme Court in Obergefell v Hodges 576 U.S. 644 (2015) p.20,
noted that “...in interpreting the Equal Protection Clause, the Court
has recognized that new insights and societal understandings can
reveal unjustified inequality within our most fundamental institutions
that once passed unnoticed and unchallenged.” In Fitzpatrick vs

14
 Sterling Housing Association Ltd., [1999] UKHL 42, the UK
House of Lords held that the word “family” under the Increase of
Rent and Mortgage Interest (Restrictions) Act included same-sex
couples, eloquently observing that “it is not the meaning which has
changed but that those who are capable of falling within the words
have changed.” (para 26) Following on from this, in Godin vs
Ghaidan Mendoza, [2004] UKHL 30, the House of Lords approved
a Court of Appeal judgement that had interpreted the phrase “as his
or her wife or husband” under the Rent Act of 1977 to mean “as if
they were his wife or husband”, so as to include same-sex couples
(para 51, speech of Lord Steyn).

45. It is therefore respectfully submitted that the original intent of

the SMA notwithstanding, the principle of updating construction
justifies the granting of the declaratory relief, prayed for in the terms
above.

46. Respondent objects to this relief on the basis that it would

make unworkable a range of other laws such as the Domestic
Violence Act, the maintenance provisions of the Code of Criminal
Procedure, the Dowry Prohibition Act, Indian Penal Code provisions
pertaining to cruelty, and so on (Counter-affidavit, para 27), as
these provisions are not gender neutral. It is respectfully submitted
that all of Respondent’s examples are of laws where gendered
language exists in order to address structural imbalances of power
between men and women within the family (such as, for example,
dowry and maintenance). While there is a separate, ongoing debate
about whether – and which – of these provisions should be made
gender neutral, that has no bearing on the question of same-sex
marriage. Respondent further submits that anomalies may be
caused in Christian and Muslim marriage and divorce law (Counter-
affidavit, paragraph 28); it is respectfully submitted that these
anomalies have no bearing on the interpretation of the SMA, and in
any event, if necessary, are easily resolved using the same
interpretive technique: for example, the words “husband and wife”
can be read to mean “as if they are husband and wife”, as has been
done by the UK House of Lords (supra).

15
B. On the Constitutionality of the Notice-and-Objections Regime

47. Sections 5 - 9 of the SMA stipulate a set of procedural pre-

conditions to the solemnisation of special marriages [“the notice-
and-objections regime”]. The “notice-and-objections regime”
requires the following:
a. An intimation of the intended marriage to the Marriage Officer
(in the district in which one of the parties has resided for at
least thirty days prior to the notice), given at least thirty days
before the solemnisation of the marriage [section 5].
b. The notice to be entered by the Marriage Officer in a Marriage
Notice Book, which is open to inspection by anyone, and to
be affixed in a “conspicuous place” in the Marriage Officer’s
office [section 6].
c. A process by which any person may object to the intended
marriage, on the ground that it contravenes one of the
preconditions under section 4 of the SMA [section 7].
d. The Marriage Officer to look into - and adjudicate the validity
of - the objection, within a further thirty days [sections 8 and
9]. It is important to note that the SMA does not define
“objection”, and consequently, even if the said “objection” is
frivolous, irrelevant, or outside the scope of Section 4, the
Marriage Officer is still duty-bound to investigate it. This,
indeed, is how the statute works on the ground.
e. Furthermore, if the marriage is not solemnised within three
months, a new notice must be provided, with the process
restarting. It is respectfully submitted that no other law places
such a “ticking clock” for people to solemnise their marriage.

48. The notice-and-objections regime thus compels individuals to

affirmatively publicise their intention to marry. This publicity is
ongoing and continuous, for a period of at least thirty days before
the solemnisation of the marriage. Furthermore, this compelled
publicising is indiscriminate, and to the world at large.

49. Petitioners respectfully submit that the notice-and-objections

regime is unconstitutional, as it violates Articles 14, 15, and 21 of
the Constitution. Petitioners further submit that the grant of

16
 declaratory relief - as prayed for in Section I of these written
submissions - without adequately addressing the notice-and-
objections regime - will render this Hon’ble Court’s relief illusionary
for queer couples who are already vulnerable to economic and
social pressure from their immediate family or kinship structures. It
is respectfully submitted that, for the reasons outlined below, the
effective exercise of the constitutional rights to equality and intimate
decision-making will be possible only if declaratory relief is
accompanied by an invalidation or judicial modification of the notice-
and-objections regime.

50. This is because, first, while marriage is undoubtedly a social

institution and arguably carries with it a reasonable expectation of
publicity (the precise contours of which may be debated), the notice-
and-objections regime compels publicity of the intention to marry.
The thirty-day notice period segregates the intention to marry and
the solemnisation of the marriage. It therefore forces individuals to
undergo public - and indiscriminate - scrutiny of their intimate
choices, for an extended period of time, before their formal entry into
the social institution of marriage. Thus, it constitutes a
disproportionate invasion into an individual’s right to privacy under
Article 21 of the Constitution [I].

51. Secondly, it is respectfully submitted that, while examining the

constitutionality of the notice-and-objections regime, this Hon’ble
Court can - and indeed, must - take into account well-known and
incontrovertible social realities. In large swathes of our society, non-
State actors - backed by social and community forces - exert
significant and - at times - debilitating pressure upon individual
choice, especially in the context of marriage. This is especially the
case when a marriage is deemed to violate social mores and
transgress social boundaries, whether it is a queer marriage, an
inter-caste marriage, or an inter-faith marriage. The notice-and-
objections regime, therefore, in effect, acts as a barrier upon the
effective exercise of decisional autonomy under Article 21 of the
Constitution (II).

17
52. Thirdly, when examined in the context of social realities, the
notice-and-objections regime is discriminatory. It disproportionately
impacts vulnerable and marginalised couples, who do not have the
resources to withstand social pressure (pressure that could take the
form of blackmail, threats, social boycotts, and so on). These
vulnerabilities exist at the intersection of caste, class, gender,
religion, and sexual orientation, among others. In effect, therefore,
the notice-and-objections regime violates Articles 14 and 15 of the
Constitution. (III).

53. In a nutshell, the present case is indubitably more about

choice, individual autonomy, privacy, and individual dignity, than
any other constitutional value. Parodoxically, there is no greater
intrusion into and no greater decimator of these core constitutional
values than the 30 day pre-marriage notice period which de facto
constitutes a dangerous invitation to society at large to disrupt,
obstruct, and indeed nullify the core choices involved in the relatively
bold decision of a same-sex marriage. Indeed, this is neither
theoretical nor apocryphal: there are already diverse paradigms of
physical intrusions and mental torture coupled with extreme family
pressure, including destruction of life and liberty, in inter-faith
marriages in India, including many that are solemnised under the
SMA.

54. The only legitimate aim of the notice period under SMA would
appear to be to bring to light potential breaches of the conditions of
eligibility under Section 4 SMA. If that be so, firstly, that object is
sufficiently subserved by mandatorily requiring prior to registration a
comprehensive affidavit/declaration certifying or declaring that the
parties meet each of the conditions stipulated under Section 4.
Secondly, the possible benefit of a pre-marriage notice period of 30
days has to be weighed in the calculus of the humongous
drawbacks which have been itemised in the previous paragraphs,
and clearly in that comparative matrix, it is a disproportionate
restriction. Thirdly, if for example, bigamous marriages or underage
marriages are illegal, they are in any case invalid, voidable, or void,
as the case may be, by the operation of law, and a notice period is

18
 of relatively limited importance to something already declared by law
to be illegal. The self-affidavit and declaration would constitute a
sufficient substitute without the corresponding danger of physical
and mental harassment of an extreme kind. Therefore, as will be
argued below, there exist less restrictive means that can achieve
the same goal, without compromising on privacy and equality (IV).

55. Petitioners also note that the Respondent’s Counter-affidavit

(as filed in March 2023) does not address these submissions.

I. Privacy

56. It has long been accepted that the protection of intimate

decisions from non-consensual public scrutiny is at the heart of the
right to privacy (Gobind vs State of MP, (1975) 2 SCC 148, para
24 referring specifically to marriage; Justice K.S. Puttaswamy vs
Union of India (I), (2017) 10 SCC 1 [“Privacy”], paras 271, 297).

57. The right to privacy is not limited to private spaces (such as

the home). The right belongs to persons (see District Registrar
and Collector vs Canara Bank, (2005) 1 SCC 496, paras 37, 39).
On occasion, indeed, the right to privacy must be exercised in public
spaces. In Navtej Johar vs Union of India, supra, Chandrachud
J. - as he then was - observed that:

The right to sexual privacy, founded on the right to autonomy

of a free individual, must capture the right of persons of the
community to navigate public places on their own terms, free
from state interference (paragraph 62).

58. It is respectfully submitted that the phrase “on their own terms”
is crucial to understanding the contours of the right to privacy in the
present case. In Navtej Johar vs Union of India, supra,
Chandrachud J. was referring to how relegating same-sex relations
to the putative “private” sphere or “behind closed doors”, is
insufficiently attentive to the interaction between the public and
private, and would entrench the “ambient heterosexism of the public
space” (Navtej Johar, para 471, supra, quoting Saptashi Mandal,

19
 “‘Right to Privacy in Naz Foundation: A Counter-
Heteronormative Critique” (2009) 2 NUJS Law Review 553.).
The context of Navtej Johar, therefore, required a critical
interrogation of the public/private divide while applying the lens of
privacy to same-sex relations.

59. The present case, it is respectfully submitted, is the mirror

image of Navtej Johar, supra. While in Navtej Johar, supra,
Chandrachud J.’s conception of privacy required building an
environment in which consensual same-sex relations could be
expressed in public spaces (free of harassment or State
interference), the present case involves the ability of and individual
to engage with a public institution (and a public space) while
preserving their right to privacy.

60. It is submitted that the pivot upon which this mirror turns is “the
right of persons of the LGTBQ+ community to navigate public places
on their own terms.” (para 471, Navtej Johar, supra) In one set of
situations, this will entail articulation and expression. In another set
of situations, it will require silence and anonymity. The vision of
privacy - flowing from Navtej Johar, supra - accommodates both
the mirror and its image.

61. It is respectfully submitted that a further facet of the right to

privacy is the right to informational self-determination (Justice K.S.
Puttaswamy vs Union of India, supra, para 248). The right to
informational self-determination vests in each individual the ability
to set the terms upon which intimate information about the self can
be shared with the public. The notice-and-objections regime
deprives individuals of informational self-determination in a domain
where it is critical: the choice of a life-partner, and - in particular -
the mutual decision of when - and if - a relationship is to crystallise
into marriage and to whom, and at what stage, the intent of this
crystallisation is to be communicated to.

62. Petitioners reiterate that this is not a case about anonymous

marriages, i.e. the striking down of a 30-day notice period that the

20
 marriage will not be in public domain. There would be an official
certificate of registration and the marriage itself will be publicised
amongst those the couple wishes to know. Shortly after marriage,
the information will be further disseminated. Far from therefore
desiring an anonymous/secretive alliance, the Petitioners’ object is
to prevent dangerous, illegal, unwarranted intrusion by meddlesome
interlopers, over-aggressive family members, self-anointed
protection groups, and society at large.

63. Without entering into the merits of the argument, Petitioners

concede that slightly different considerations might apply at the point
of entry into the social institution and afterwards. What is at stake
here is the ability of individuals to exercise their right or privacy over
their intention to marry - the intimate decision to enter the social
institution - and their ability to control how they choose to share such
deeply personal information with the world.

64. For the reasons advanced above, it is therefore submitted that

the notice-and-objections regime violates the right to privacy under
Article 21 of the Constitution.

II. Decisional Autonomy

65. It is respectfully submitted that this Hon’ble Court has long
held that constitutional adjudication must take place with a keen
awareness of the social context in which laws exist and operate. To
this is allied the long-standing doctrine of this Hon’ble Court that
when assessing a law’s constitutionality, what matters is its effect,
and not its intention or form (see Chandrachud, J. as he then was in
Navtej Johar, supra, para 34 specifically with respect to queer
lives).

66. Chandrachud J. went on to note that a facially neutral law

would nonetheless be unconstitutional if its effect was to target
certain communities (paragraph 42). Relying upon on-ground
evidence - brought before the Court through affidavits and personal
testimony - Chandrachud J. held that it had been established that
Section 377 of the IPC created “a systemic pattern of disadvantage,

21
 exclusion and indignity for the LGBT community, and for individuals
who indulge in non-heterosexual conduct.” (paragraph 42)
Chandrachud J. specifically referred to the “possibility of
persecution” (paragraph 48), “blackmail” (paragraph 48), and -
crucially - the impossibility of redress through law, even though
these acts were illegal (paragraph 48). Summing up the position, it
was then held that:

While this behaviour is not sanctioned by Section 377, the

existence of the provision nonetheless facilitates it by
perpetuating homophobic attitudes and making it almost
impossible for victims of abuse to access justice. (paragraph
51)

67. This Hon’ble Court has also recognised the possibility of

systematic abuse of a rights-infringing measure, and read that into
its assessment of such a measure’s constitutionality under the
doctrine of proportionality (Gujarat Mazdoor Sabha v State of
Gujarat (2020) 10 SCC 459 para 11.5; Ramesh Chandra Sharma
v State of Uttar Pradesh, Civil Appeal No. 8819/2022, paras 48-
51). Following the judgement of Chandrachud, CJI in Gujarat
Mazdoor Sabha that welded safeguards against abuse into this
Hon’ble Court’s doctrine of proportionality, this Hon’ble Court in
Ramesh Chandra summed up the position of law as follows:

State action that leaves sufficient room for abuse, thereby

acting as a threat against free exercise of fundamental rights,
ought to necessarily be factored in in the delicate balancing
act that the judiciary is called upon to do in determining the
constitutionality of such state action - whether legislative,
executive, administrative or otherwise. (paragraph 51)

68. Therefore, in view of this Hon’ble Court’s authoritative holding,

it is not open for the Respondents to defend the constitutionality of
the notice-and-objections regime without regard to the on-ground
evidence of its abuse by private actors.

69. Petitioners rely upon this insight, and respectfully submit that
it applies squarely to the notice-and-objections regime. In the

22
 accompanying writ petition, Petitioners have adduced detailed
evidence to demonstrate how the notice-and-objections regime has
enabled the persecution of individuals whose choice of a life partner
is in conflict with the social expectations of their family and broader
kinship and community structures. (ref. Annexures P2, P3, P4, p.34-
53, containing news reports of such harassment; and Annexure P5,
p.57, containing extracts from the 242nd Law Commission Report
noticing this problem).

70. Adopting the language of Navtej Johar, supra, para 458

Petitioners respectfully submit that the notice-and-objections regime
does not sanction persecution, but facilitates it by its operation in a
society and an environment in which the use of familiar, caste, and
community power to override individual choice in matters of
marriage is both normalised and widespread.

71. It is in this fashion, therefore, that the notice-and-objections

regime violates the right to decisional autonomy under Article 21 of
the Constitution. To be sure, the notice-and-objections regime does
not, on its own terms, stop a marriage. However, to limit the analysis
to just that would be to view this provision in vacuum. The
jurisprudence of this Hon’ble Court is clear that effect and context
are vital in interpreting a law from the perspective of fundamental
rights violations. It is respectfully submitted that the effect of the
notice-and-objections regime, in context, makes it pellucidly clear
that it acts as a significant barrier between individuals and the
effective exercise of their right to decisional autonomy.

III. Equality
72. Drawing from the submissions in the previous section,
Petitioners respectfully submit that the notice-and-objections regime
is discriminatory.

73. Different individuals have differing abilities to withstand

familial, social, caste, and community pressure (as outlined above).
However, this difference in ability is not random or arbitrary: it is
directly linked to an individual’s ascriptive identity (including, but not

23
 limited to, their socio-economic status). For example, individuals
who are economically dependent on their families will be less able
to withstand familial pressure than individuals who are economically
independent. Individuals who belong to contexts in which kinship
and community structures are important sources of support, will be
less able to withstand a threat of social boycott than individuals
whose access to basic goods is not mediated through community.
At an even simpler level, individuals belonging to dominant social
groups (for example, dominant caste groups) will be more able to
withstand pressure than individuals belonging to already vulnerable
or marginalised groups.

74. Consequently, the harm wrought by the notice-and-objections

regime lies at the interface of two (related) concepts of
discrimination: indirect discrimination and intersectional
discrimination.

75. Indirect discrimination refers to the phenomenon where a

neutrally-worded statute is discriminatory in its effect (as argued in
the previous section). (Col. Nitisha vs Union of India, 2021 SCC
OnLine SC 261, paras 61, 84, 97).

76. It is respectfully submitted that the term “social and economic”

is carefully chosen, and ought to be given full effect to.

77. Intersectional discrimination, on the other hand, is a more

complex concept. It is based upon the insight that individuals
habitually occupy multiple axes of oppression simultaneously, and
in such circumstances, the discrimination that they experience does
not come packaged separately by axis, and nor is it a simple sum of
individual forms of discrimination. Intersectional discrimination is a
unique experience that - as the term suggests - is located at the
intersection of one or more ascriptive identities.

78. Intersectional discrimination has been recognised by this

Hon’ble Court. In Navtej Johar, supra, Chandrachud J. (as he then
was) held that it was important to take into account “the

24
 intersectional nature of sex discrimination, which cannot be said to
operate in isolation of other identities, especially from the socio-
political and economic context” (paragraph 36). (Also see Patan
Jamal Vali vs State of Andhra Pradesh, (2021) SCC OnLine SC
343, paras 22, 24). Repeatedly, therefore, this Hon’ble Court has
stressed upon “social and economic context” as prerequisites for
understanding intersectional discrimination.

79. It is respectfully submitted that the (facially neutral) notice-

and-objections regime is an instance of indirect, intersectional
discrimination. The notice-and-objections regime operates
unequally on individuals who occupy the intersection of ascriptive
identities - gender, sexual orientation, caste, religion, and class -
and places the benefits of the SMA beyond their reach. For these
reasons, it is respectfully submitted that the SMA violates Articles
14 and 15 of the Constitution.

IV. Proportionality
80. It is well-settled that a law that violates Article 21 must conform
to the five-pronged test of proportionality in order to pass muster.
The five prongs are:
a. A legitimate state aim.
b. A rational nexus between the rights-infringing measure and
the State aim [“suitability”].
c. The rights-infringing measure should be the least restrictive
measure open to the State to achieve its goals [“necessity”].
d. There should be a balance between the extent and severity of
the infringement, and the State aim [“proportionality stricto
sensu”].
e. There should be provided sufficient safeguards against the
possibility of abuse of the rights-infringing measure
[“safeguards against abuse”].

81. As submitted above, Petitioners do not dispute that there may

exist a legitimate State aim, i.e., to prevent violations of the section
4 pre-conditions upon solemnisations of SMA marriages (such as
bigamy, etc.). It is also correct that there exists a rational nexus

25
 between the requirement of publicity, and the State aim of ensuring
that SMA marriages are compliant with section 4.

82. Petitioners submit, however, that the notice-and-objections

regime fails at the prong of necessity. Completely stripping away the
right to privacy of individuals for a one-month period before the
solemnisation of the marriage is not the “least restrictive alternative”
open to the State. This is obvious from the fact that for non-SMA
marriages - such as, for example, under Hindu customary law, or
Christian personal law - there is no requirement of State-mediated
publicity (under Christian personal law, for example, registration is
mandatory, but publicity is not; under Hindu customary law,
registration is not mandatory).

83. Relatedly, therefore, it is evident that ex ante compelled

publicity is not the only way to check abuse. Indeed, for most laws,
the State does not resort to ex ante prohibitions, but rather, achieves
the goals of prevention, deterrence, and control through prosecution
and punishment for law-breaking. It is open to the legislature to
modulate the penalty in order to ensure maximum compliance, and
should this Hon’ble Court hold the notice-and-objections regime to
be unconstitutional, the legislature could well alter the punishment
for violating section 4 in order to achieve deterrence and prevention.
It is respectfully submitted, however, that ex post penalties are
adequate - and less restrictive - methods of achieving the State aim,
rather than an ex ante deprivation of privacy of every individual who
wishes to get married under the SMA. Indeed, it is this mechanism
that the State follows for ensuring compliance with pre-conditions
for marriage under personal laws; consequently, not only does a
less restrictive alternative exist in theory, but it also exists - and has
been deployed - in practice.

84. It is further submitted that, for related reasons, the notice-and-

objections regime fails the fourth prong of the proportionality
standard. In order to catch the few individuals who might attempt to
use the cloak of secrecy in order to get married in violation of section
4 conditions, the notice-and-objections regime strips every

26
 individual of their privacy under the SMA. This - effectively - amounts
to a presumption of criminality: the notice-and-objections regime
assumes that every individual who wishes to get married under the
SMA is a potential violator of section 4.

85. It is respectfully submitted that this jurisprudence of suspicion

was held to fail the fourth prong of the proportionality standard by
this Hon’ble Court in Justice K.S. Puttaswamy vs Union of India,
(2019) 1 SCC 1 (paras 491, 1323); in that case, this Hon’ble Court
held that the mandatory linking of Aadhaar with SIM cards was
unconstitutional, as it presumed that every citizen was a potential
terrorist, and was therefore a tool of prevention. It is respectfully
submitted that the notice-and-objections regime is premised on the
same assumption of general, potential criminality.

86. Finally, the notice-and-objections regime is vulnerable to and

has in fact been the site of rampant abuse by various private actors.
It is a well-known fact that couples marrying outside the bounds of
conventional morality have been killed, attacked at their homes, and
separated, by anti-social elements and their own family members
using the device of the public notice required under the SMA. The
fifth prong of the proportionality test does not leave it open for the
Respondents to claim that abuse of a law is irrelevant to an
assessment of its constitutionality, when the law itself does not
safeguard against such abuse in any manner.

87. It is therefore submitted that the notice-and-objections regime

constitutes a disproportionate invasion of Article 21, and ought to be
struck down as unconstitutional by this Hon’ble Court.

C. On the Relief
88. In light of the above, this Hon’ble Court may be pleased to
issue appropriate directions, writs, orders, directions, or other relief
as set out below.
a. Declare, particularly, that same-sex marriages are covered
under the ambit of marriages that may be solemnised and
registered under the SMA;

27
 b. Issue a writ of mandamus, or any other appropriate writ, order,
or direction, declaring that the provisions of solemnization and
registration under the SMA extend to all marriages between
any persons otherwise eligible under the SMA, irrespective of
the parties’ gender, sexual orientation, and sexual identity. In
particular, this Hon’ble Court may declare that the words
“man” and “woman” u/s 2(b); “male” and “female” u/s 4(c);
“wife” and “husband” u/s 12(2), 15(a), 22, 23, 25, 27, 36, 37,
44, and the Fifth Schedule; “widower” and “widow” under the
Second Schedule; and “bride” and “bridegroom’ under the
Third and Fourth Schedules be interpreted as “any two
persons”, along the lines of S.4 of the Act.

89. In the alternative, the Court may strike down gendered words
in the SMA that restrict marriage between persons of opposite
gender as violative of Articles 14, 15, 19, and 21 of the Constitution
of India. The gendered words in issue are listed separately for the
convenience of this Hon’ble Court in Appendix III.

90. Similarly, issue a declaratory writ of mandamus, or any other

appropriate writ, order, or direction, declaring that the provisions of
solemnization and registration under the FMA extend to all
marriages between any persons solemnised under the Act,
irrespective of the parties’ gender, sexual orientation, and sexual
identity. An interpretation to the contrary, restricting marriage
between persons of opposite gender would be violative of Articles
14, 15, 19, and 21 of the Constitution of India.

91. Issue a writ of mandamus or any other appropriate writ, order,

or direction, declaring Sections 5, 6, 7, 8, 9, and 10 of the SMA as
unconstitutional, illegal, and void for all persons.

92. Issue a writ of mandamus or any other appropriate writ, order,

or direction, declaring Sections 5, 6, 7, 8, 9, and 10 of the FMA as
unconstitutional, illegal, and void for all persons.

28
93. Issue any other writ, order, or direction as this Hon’ble Court
may deem fit and proper to do complete justice in the circumstances
of the case

DRAFTED BY: FILED BY:

Gautam Bhatia, Adv. Shadan Farasat,
Shadan Farasat, Adv. Advocate for the Petitioner
Hrishika Jain, Adv.
Utkarsh Saxena, Adv.
Abhinav Sekhri, Adv.
Aman Sharma, Adv.

SETTLED BY:
Dr. Abhishek Manu Singhvi, Sr. Adv.

Place: New Delhi

Date: 12th March, 2023

29
 Appendix-I

Vertical rights conferred or liabilities removed by the State itself for

those enjoying the State-sanctioned status of marriage

Adoption Regulation 5, Adoption Regulations, 2022 enacted

under the Juvenile Justice (Care and Protection of
Child) Act, 2015, stipulates only a married couple
or single individuals as eligible candidates for
adoption.

Surrogacy Section 2(1)(h) read with Section 4 of the

Surrogation (Regulation) Act, 2021 allows only a
married couple or a single widow/divorcee woman
to avail surrogacy.
Intestate succession Intestate succession under the Indian Succession
Act, 1925, Hindu Succession Act, 1956, as well as
Muslim personal law only covers relations by
marriage, consanguinity, or adoption.

Tax exemption for gifts Under Section 56(2)(v) of the Income Tax Act,
received from spouse 1961, gifts made by a person to a spouse are
exempt from income tax.

Tax deductions for For instance, Section 80D of the Income Tax Act,
diverse expenditures 1961 allows an assessee to deduct expenditure on
made for one’s spouse health premia made only for his spouse or
dependent children. Similar provisions have also
been enacted for other diverse expenditures.

Norms for For instance, the Scheme for Compassionate

compassionate Appointment in the Registry of the Supreme Court
appointments in of India, 2006 makes provisions for compassionate
government posts appointment of a spouse in case of the death of a
Court Officer while in service. Similar provisions
exist for numerous other posts in State institutions.
Compensation to For instance, under the Workmen’s Compensation
dependents for death of Act, 1923, only persons related by marriage or
kin under various lineage are considered ‘dependents’ of the
legislations deceased entitled to compensation (ref. Section
2(1)(d), Workmen’s Compensation Act, 1923).

30
 Appointment of Rules 19, 21 of All India Services (Death-cum-
nominee for receipt of Retirement) Benefit Rules, 1958 consider only
post-retirement persons related by marriage, blood, or adoption as
benefits, pension, etc. eligible nominees for receipt of a deceased
after the death of a government employee’s gratuity.
government employee

Privilege in spousal Section 122 of the Indian Evidence Act, 1872

communication makes communication between a married couple
made during the subsistence of the marriage,
privileged.
Right to bodily remains In case of death, police/other authorities are often
of deceased kin reluctant to return the deceased’s bodily remains to
persons not in a ‘legal’ relationship (such as
marriage or lineage) with the deceased.1

State protection from For example, the Rajasthan Prohibition of

social harassment, Interference with the Freedom of Matrimonial
violence, and ‘honour Alliances in the Name of Honour and Tradition Bill,
killings’ granted to 2019 was passed by the Rajasthan Legislative
couples marrying Assembly to protect couples who are married or
outside the pale of who intend to marry, from harassment by
conventional morality community/families.

Spousal maintenance Persons in a live-in or other long-term relationship

without the stamp of marriage are not entitled to
maintenance from their partner under Section 125,
CrPC or under the diverse family legislations.
Indeed, the Protection of Women from Domestic
Violence Act, 2005 which recognises live-in
relationships “in the nature of marriage” provides
for maintenance only in cases of domestic violence.
Even in such cases, the 2005 Act has no protection
for couples who would not be otherwise eligible to
marry (D. Velusamy v D. Patchaiammal, (2010) 10
SCC 469 para 31).

Protection of the law to The special penal provision for domestic violence,
victims of domestic i.e. Section 498A Indian Penal Code 1860 covers
violence only violence within marriages. The Protection of
Women from Domestic Violence Act, 2005, albeit
covering live-in relationships in the nature of

1
Datta, Sayantan (2017) “We Refuse to be Subjects of Experiment for Those who do not Understand
us: Transgender Persons Bill.” 52(49) Econ. Pol. Wkly.

31
 marriage, also seemingly applies only to
heterosexual relationships.
Horizontal rights conferred or disabilities removed by private entities on
those enjoying the State-sanctioned status of marriage
Family insurance Most insurance companies cover only the legally
coverage married spouse (and other blood/adoptive
relations) of a policy-holder under family floater
insurance policies.

Renting homes The housing market strongly prefers married

couples and conventional families.

Opening of joint bank Most banks facilitate joint savings accounts for
accounts legally married couples and other recognised
family types.

Bereavement or care- For instance, bereavement leaves of many private

giving leave policies in companies only extend to death of loved ones
private employment recognised by the law as family, i.e. married
spouse and other members of the immediate
conventional family.2

Right to be involved in Hospitals and healthcare centres generally provide

the partner’s healthcare information about a patient’s condition to, and
and right to make consult in that regard with, only legally-recognised
medical decisions in that family members of the patient, including a married
regard spouse and other relations by blood/adoption.

Appendix - II

Comparison of solemnisation, registration, and marriage validity

provisions of HMA and SMA
Hindu Marriage Act, 1955 Special Marriage Act, 1954
Solemnization HMA allows for the SMA does not allow for the
solemnization of a marriage solemnization of a marriage
without any notice, objection, unless notice, objection, and
or inspection requirements inspection requirements u/s 5-
being completed. 10 of the Act are met.

2
VK, Vipashana & anr. (2017) “Firms give bereavement leave to help staff cope with loss.” Times of
India (Sep. 12, 2017).

32
 As per Section 7 of HMA, “a These sections require that (i)
Hindu marriage may be a notice period of 30 days be
solemnised in accordance provided to the Marriage
with the customary rites and Officer of the District where
ceremonies of either party one of the parties has resided
thereto” and “where such rites (S. 5), (ii) that such notice of
and ceremonies include the intended marriage be affixed
saptpadi, the marriage to a “conspicuous place”, (S.6
becomes complete and (3)) (iii) that the details of the
binding when the seventh parties giving such notice be
step is taken” entered in a Marriage Notice
Book that is available for
inspection to any person (S.
6(2)), and (iv) any person has
the authority to object to the
solemnization of the marriage
during notice period (S. 7).

In case of no objections, it
may be solemnised only after
the expiration of 30-day notice
period

In case of objections, the

marriage officer cannot
solemnise a marriage unless
they have inquired into the
objection and satisfied
themselves that they “ought
not to prevent the
solemnization of the marriage”
(8(1))
Registration Even at the stage of Registration of a marriage
registration, a marriage under SMA arises only after
solemnised under the HMA is notice, objection, and
not subject to any notice and inspection requirements are
objection requirements met for solemnization.

Section 8 of HMA allows state U/s 13(1) of the SMA, “when

governments to make rules the marriage has been
related to marriage solemnised” (after following
registration. For example, notice, objection, and
Delhi passed The Delhi inspection requirements) the
(Compulsory Registration of marriage officer issues a

33
 Marriage) Order, 2014 which marriage certificate in the
does not have any notice, form specified in the Fourth
objection, or inspection Schedule. As per 13(2), this
requirements for the certificate is “deemed to be
registration of marriages conclusive evidence of the
under the HMA. For such fact that a marriage under this
marriages to be registered, Act has been solemnised”
only a verification of
documents and appearance The Marriage Notice Book
before the SDM is necessary. maintained u/s 6(1) of the
The marriage certificate is SMA needs to be available for
issued on the same day the inspection before the
parties appear before the marriage is solemnised or
SDM. registered.

S. 8(1) and 8(4) of HMA

require that a Hindu Marriage
Register be maintained and
be open to inspection at all
reasonable times after the
marriage is registered.

Validity The lack of registration of a Marriages under the SMA

marriage does not strike at cannot be solemnised (and
the validity of a marriage per are hence invalid) without
S. 8(5) of HMA. Hence, a adhering to the notice and
marriage is valid without objection prerequisites
meeting any notice and
objection requirements under
the HMA.

Section 8(5) of the HMA

opens with a non-obstante
clause to hold:
“notwithstanding anything in
this section, the validity of any
Hindu marriage shall in no
way be affected by the
omission to make the entry [in
a Hindu Marriage Register]”

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 Appendix III

List of gendered words used in the Special Marriage Act 1954 that
require reading down to non-gendered terms such as ‘spouse’ or
‘person’
Provision Extract
Section 2(b) (b) “degrees of prohibited relationship”- a man and
Definitions any of the persons mentioned in Part I of the
First Schedule and a woman and any of the
read with First persons mentioned in Part II of the said
Schedule Schedule are within the degrees of prohibited
relationship.
Explanation I.―Relationship includes,―
(a) relationship by half or uterine blood as well as
by full blood;
(b) illegitimate blood relationship as well as
legitimate;
(c) relationship by adoption as well as by blood;
and all terms of relationship in this Act shall be
construed accordingly.
Explanation II.―“Full blood” and “half blood”―two
persons are said to be related to each other by full
blood when they are descended from a common
ancestor by the same wife and by half blood when
they are descended from a common ancestor but
by different wives.
Explanation III.―“Uterine blood”―two persons are
said to be related to each other by uterine blood
when they are descended from a common
ancestress but by different husbands.
Explanation IV.―In Explanations II and III,
“ancestor” includes the father and “ancestress” the
mother”.

Part I of the First Schedule mentions only female

kin, while Part II of the First Schedule mentions
only male kin. To that extent, the relationships
may be read down to include their gender-neutral
corresponding parts.
Sections 4(c), (d) Notwithstanding anything contained in any other
Conditions law for the time being in force relating to the

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relating to solemnization of marriages, a marriage between
solemnisation of any two persons may be solemnized under this
special marriages Act, if at the time of the marriage the following
conditions are fulfilled, namely:―
…
(c) the male has completed the age of twenty-one
years and the female the age of eighteen years;
(d) the parties are not within the degrees of
prohibited relationship:
Provided that where a custom governing at least
one of the parties permits of a marriage between
them, such marriage may be solemnized,
notwithstanding that they are within the degrees of
prohibited relationship.
Section 12 (1) The marriage may be solemnized at the office
Place and form of of the Marriage Officer, or at such other place
solemnization within a reasonable distance therefrom as the
parties may desire, and upon such conditions and
the payment of such additional fees as may be
prescribed.
(2) The marriage may be solemnized in any form
which the parties may choose to adopt:
Provided that it shall not be complete and binding
on the parties unless each party says to the other
in the presence of the Marriage Officer and the
three witnesses and in any language understood
by the parties,―“I, (A), take the (B), to be my
lawful wife (or husband)”.
Section 15 Any marriage celebrated, whether before or after
Registration of the commencement of this Act, other than a
marriages marriage solemnized under the Special Marriage
celebrated in Act, 1872 (3 of 1872), or under this Act, may be
other forms registered under this Chapter by a Marriage
Officer in the territories to which this Act extends if
the following conditions are fulfilled, namely:―
(a) a ceremony of marriage has been performed
between the parties and they have been living
together as husband and wife ever since
…
Section 22 When either the husband or the wife has, without

36
Restitution of reasonable excuse, withdrawn from the society of
Conjugal Rights the other, the aggrieved party may apply by petition
to the district court for restitution of conjugal rights,
and the court, on being satisfied of the truth of the
statements made in such petition, and that there is
no legal ground why the application should not be
granted, may decree restitution of conjugal rights
accordingly.
…
Section 23 (1) A petition for judicial separation may be
Judicial presented to the district court either by the
Separation husband or the wife…
Section 25 Any marriage solemnized under this Act shall be
Voidable voidable and may be annulled by a decree of nullity
marriages if,―
…
(iii) the consent of either party to the marriage was
obtained by coercion or fraud, as defined in the
Indian Contract Act, 1872 (9 of 1872):
…
Provided further that in the case specified in clause
(iii), the court shall not grant a decree if,―
(a) proceedings have not been instituted within one
year after the coercion had ceased or, as the case
may be, the fraud had been discovered; or
(b) the petitioner has with his or her free consent
lived with the other party to the marriage as
husband and wife after the coercion had ceased
or, as the case may be, the fraud had been
discovered.
Section 27 (1) Subject to the provisions of this Act and to the
Divorce rules made thereunder, a petition for divorce may
be presented to the district court either by the
husband or the wife on the ground that the
respondent―
…
Section 44 Every person whose marriage is solemnized under
Punishment of this Act and who, during the lifetime of his or her
Bigamy wife or husband, contracts any other marriage

37
 shall be subject to the penalties provided in section
494 and section 495 of the Indian Penal Code (45
of 1860), for the offence of marrying again during
the lifetime of a husband or wife, and the marriage
so contracted shall be void.
Second Schedule May be read down to the extent that it uses
Notice of Intended ‘widower’ and ‘widow’.
Marriage
Third Schedule May be read down to the extent that it uses
Declaration to be ‘bridegroom’, ‘bride’, ‘widow’, ‘widower’.
Made by the
Bridegroom
Declaration to be
Made by the Bride

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