SAME-SEX MARRIAGES

INTRODUCTION

Centre on Monday told the Delhi High Court in Udit Sood and Ors. v. Union of India and
Anr.
that there are other urgent matters that need consideration and that “nobody is dying because
they don’t have a marriage certificate. Senior Advocate Saurabh Kirpal, representing some of
the petitioners, told the court that the government is supposed to be neutral and the court has
to determine urgency. Senior Advocate Dr Menaka Guruswamy, who also represents some of
the petitioners, told the court that there are 70 million LGBTQ people in this country.

during the hearing of a PIL seeking a declaration that same-sex marriages be recognised
under the Hindu Marriage Act (HMA) and Special Marriage Act.
Arguing in front of a bench of Chief Justice D N Patel and Justice Prateek Jalan, Tushar
Mehta argued that "our laws, our legal system, our society and our values do not recognise a
marriage, which is a sacrament, between same-sex couples".
Earlier, opposing the petition seeking recognition to same-sex marriages under various
personal laws, the Centre had told the court through an affidavit that, "there is a "legitimate
state interest" in limiting recognition of marriage to persons of opposite sex only", and that
the institution of marriage is not merely a concept relegated to the domain of privacy of an
individual.
The Supreme Court has held in the case of Shakti Vahini vs Union of India that if the right to
“express one’s own choice is obstructed; it would be extremely difficult to think of dignity in
its sanctified completeness. This judgement although delivered in the backdrop of Khap
panchayats and honor killings indicates the constitutional right of a free choice and the right
to marry as being a fundamental right protected by Articles 19 and 21. In the case of Shafin
Jahan vs Asokan KM, the apex court left no stone unturned in recognising the liberty of
choice and much-needed autonomy in making intimate personal decisions. The court said,
“The social values and morals have their space but they are not above the constitutionally
guaranteed freedom”
Interestingly, both these cases were relied upon by the apex court in Navtej Johar itself and
this emphatically establishes that there is a fundamental right to marry the person of one’s
own choice. Most significant observations in this case have been made by Chandrachud J in
the concluding portion of his concurring opinion in para 156, in which he has specifically
held that members of the LGBT community “are entitled, as all other citizens, to the full
range of constitutional rights including the liberties protected by the Constitution” and are
entitled to equal citizenship and “equal protection of law.”

When the moral standards of the society are up against constitutional morality; the latter
prevails. This particular position of law has become well-established after the Navtej Johar
judgement, as it was unanimously accepted by all five judges.

The question of choice has been extensively dealt with by a Constitution Bench of nine
judges in Justice KS Puttaswamy (retd) and another v. Union of India and others. The Court
unanimously held that “the right to privacy is protected as an intrinsic part of the right to life
and personal liberty under Article 21”. In the majority opinion delivered by Dr. DY
Chandrachud J, the Court in paragraph 81 held that in the Indian context, the fundamental
right to privacy would cover at least the following three aspects - (i) privacy that involves the
person, (ii) informational privacy and (iii) privacy of choice, which protects an individual’s
autonomy over fundamental personal choices.

COMPARATIVE JURISPRUDENCE

Same-sex marriage is legally permissible in 29 countries. In US, in case, Lawrence vs Texas,

2003, the court boldly recognised gay rights. Finally, after 12 years in the case of Obergefell
v. Hodges, 2015, the American Supreme Court ruled in the favour of giving legal sanction to
same-sex marriages.

The county court judge in Medoza followed the ruling in Fitzpatrick v Sterling Housing

Association Ltd [2001] in awarding Mr Mendoza the assured tenancy, on appeal, the House
of Lords went a step further and made the Rent Act 1977 compatible with the Human Rights
Act 1998 by using  the interpretive provision in section 3 to say that same-sex couples could
also count as “spouses” under paragraph 2(2) of the Rent Act.
Then, later that year, the pioneering Civil Partnership Act 2004 for the first time created a
legal framework that recognised same-sex relationships. 
In 2013, David Cameron’s government passed the Marriage (Same Sex Couples) Act which
introduced marriage for same-sex couples in England and Wales.