Team Code- 207

3RD NATIONAL MOOT COURT COMPETITION

BEFORE THE HON’BLE SUPREME COURT OF NEVERLAND

In The Connected Matters Of

ARTICLE 32 OF THE CONSTITUTION OF NEVERLAND

i. LQBTQ Welfare Society ……..………...……………………..……Petitioner

v/s
Union of NEVERLAND……...……………..…………...………Respondents

ii. X…………….……..………………….………………………..……Petitioner
v/s
Union of NEVERLAND……...……………..…………...………Respondents

ARTICLE 136 OF THE CONSTITUTION OF NEVERLAND

iii. Mr. Kevin………………………………………………….……….Appellant

v/s
Mr. Holt… …..……………………………………………..……..Respondent

iv. Cameron and Mitchell……………………………………………Appellant

V/s
Union of Neverland.……………………………………………….Respondents

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF NEVERLAND

WRITTEN SUBMISSION ON BEHALF OF PETITIONER

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TABLE OF CONTENTS
LIST OF ABBREVIATIONS...................................................................................................3

INDEX OF AUTHORITIES....................................................................................................4

STATEMENT OF JURISDICTION........................................................................................8

STATEMENT OF FACTS.......................................................................................................9

ISSUES RAISED....................................................................................................................11

SUMMARY OF ARGUMENTS............................................................................................11

ARGUMENTS ADVANCED................................................................................................13

I. WHETHER THE SUPREME COURT IS EMPOWERED TO HEAR A WRIT

PETITION WHEN CRIMINAL PROCEEDINGS ARE PENDING ON THE SAME
SUBJECT MATTER?............................................................................................................13

A. That there is no grave violation of fundamental rights.............................................13

B. There is no excessive use of force by police..............................................................14
C. Alternate and efficacious remedy is available to the petitioner................................16
II. WHETHER HOMOSEXUAL MARRIAGES AND MAINTENANCE TO PARTIES
TO SUCH MARRIAGES ARE RECOGNIZED UNDER THE SPECIAL MARRIAGE
ACT, 1954?.............................................................................................................................16

A. Nature and Concept of Marriage..............................................................................17

i. Special Marriage Act cannot be interpretated in favor of same sex marriage.........18
III. WHETHER THE WRIT PETITIONER HAS LOCUS STANDI TO PRAY TO THE
COURT TO ‘RECOGNIZE’ THE VALIDITY OF HOMOSEXUAL MARRIAGES AND
TO FURTHER DRAFT GUIDELINES FOR PROTECTION OF RIGHTS OF LGBTQ+
COMMUNITY?.....................................................................................................................22

IV. WHETHER THE RIGHTS OF PARTIES IN A ‘LIVE-IN RELATIONSHIP’ CAN

EXTEND TO PARTIES IN A HOMOSEXUAL RELATIONSHIP?...................................23

A. Rights of parties in live in relationship cannot be interpreted in favour of same sex

marriage............................................................................................................................23
B. Denial Of Legal Recognition Does Not Breach of Part iii of the Constitution.........25
PRAYER.................................................................................................................................28

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LIST OF ABBREVIATIONS

AIR All India Reporter

& And
Anr. Another
Art. Article
CBI Central bureau of Investigation
Co. Company
Ed. Edition
HC High Court
Hon’ble Honourable
Id. Ibid
IT Act Information Technology Act, 2000
MP Madhya Pradesh
Mad. Madras
Ors Others
¶ Paragraph
¶¶ Paragraphs
Sec. Section
§ Section
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
vs./v. Versus
Vol. Volume

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INDEX OF AUTHORITIES
CASES

S. CASES CITATIONS PAGE

NO NO.
.

1. Anita Thakur V. State Of J&K (2016) 15 SCC 525

2. Ashok Kumar Pandey V. State Of West Bengal (2004) 3 SCC 349

3. Avinash Chand Gupta V. State Of U.P. (2004)2 SCC 726

4. Bandhua Mukti Morcha V. Union Of India (1984) 3 SCC 161

5. Bhushan Power & Steel Ltd. V. Rajesh Verma (2014) 5 SCC 55

6. Bodhisattwa Gautam V. Subhra Chakraborty (1996) 1 SCC 542

A.I.R. 1996 S.C.
722

7. Calcutta Gas Co. Ltd. V. State Of West Benga A.I.R. 1962 S.C.
1044

8. Chanmuniya Vs. Virendra Kumar Singh (2011) 1 SCC 141

Kushwaha

9. Coffee Bd. V. Joint C.T.O. AIR 1971 SC 870

10. Common Cause (A Regd. Society) V. Union Of (2008) 5 SCC 511

India

11. D.B. Singh V. Union Of India (2004) 3 SCC 363

12. Federation Of Bar Association In Karnataka V. (2000) 6 SCC 715

Union Of India

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13. Fertilizer Corp. Kamgar Union V. Union Of India AIR 1981 SC 344

14. Gopal Das Mohta V. Union Of India AIR 1955 SC 1

15. Janata Dal V. H.S. Chowdhary (1992) 4 SCC 305

16. K.A. Abbas V. Union Of India (1970) 2 SCC 780

17. Maganbhai Ishwarbhai Patel V. Union Of India (1970) 3 SCC 400 :

A.I.R. 1969 S.C.
783

18. Monica Kumar (Dr.) V. State Of U.P. (2008) 8 SCC 781

19. Mr ‘X’ V. Hospital ‘Z’ (1998) 8 SCC 296

20. Navtej Singh Johar & Ors. V. Union Of India (2018) 10 SCC 1
Thr. Secretary Ministry Of Law And Justice

21. People's Union For Democratic Rights V. Union (1982) 3 SCC 235
Of India

22. Philips India Ltd. V. Labour Court (1985) 3 SCC 103

23. R. S. Raghunath V. State Of Karnataka AIR 1992 SC 81

24. Raghunath Rai Bareja V. Punjab National Bank (2007) 2 SCC 230

25. Rajiv Ranjan Singh V. Union Of India (2006) 6 SCC 613

26. S.P. Gupta V. Union Of India (1982) 3 SCC 223 :

A.I.R. 1982 S.C.
149

27. State Of Orissa V. Gokulnanda Jena (2003)6 SCC 465

28. State Of Uttaranchal V. Balwant Singh Chaufal (2010) 3 SCC 402 :

A.I.R. 2010 S.C.

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2550

29. State Of W.B. V. Anwar Ali Sarkar (1952) 1 SCC 1

30. Subramanian Swamy V. Raju (2014) 8 SCC 390

31. Union Of India V. Deoki Nandan Aggarwal, 1992 Supp (1) SCC
323

32. Vishakha V. State Of Rajasthan (1997) 6 SCC 241

STATUTES

S. no. Name

1. THE CONSTITUTION OF INDIA

2. THE CODE OF CRIMINAL PROCEDURE, 1973

3. THE INDIAN PENAL CODE, 1860

4. THE SPECIAL MARRIAGE ACT, 1954

5. HINDU MARRIAGE ACT, 1955

6. PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

7. MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986

THE DIVORCE ACT, 1869
8.
THE PARSI MARRIAGE AND DIVORCE ACT, 1936
9.
HINDU ADOPTIONS AND MAINTENANCE ACT, 1956
10.

BOOKS REFERRED

S. no. Name
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Arvind P. Datar, Commentary on the Constitution of India 542 (2nd ed. 2007)
1.
Dr. D.D. Basu, Commentary on Constitution of India, (8th Ed., Lexis Nexis,
2. 2010)

H.M. Seervai, Constitutional Law of India, (4th Ed., Universal Law

3. Publication,2015).

V.N. Shukla's, Constitution of India, (12th Ed., Eastern Book Company, India
4. 2013).

MP Jain, Indian Constitutional Law, (7th Ed., Lexis Nexis, 2016).

5.

DICTIONARIES REFERRED

s. no. Name

1. Garner, Black’s Law Dictionary, (10th Ed. Thomus & West, U.S.A 2015)

2. P Ramanatha Aiyar, The Law Lexicon, (2nd Ed. Lexis Nexis, 2006)

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STATEMENT OF JURISDICTION
This Hon’ble court has clubbed the present batch of petitions/appeals. The respective
jurisdiction for each petition is as follows –
i. The LGBTQ Welfare Society v/s Union of Neverland
The petitioner has approached the Hon’ble Supreme Court of NEVERLAND to hear
and adjudicate over the instant matter under Article 32 of the Constitution of
Neverland. The present petition has been filed as a public interest litigation under
Article 32 of the Constitution of India.
ii. Cameron and Anr. v/s Union of Neverland
The appellant has filed the present appeal against the vide Order dt. 04.09.2023, it
upheld the finding that homosexual marriages are not permitted in Neverland, even
under the provisions of the 1954 Act. Aggrieved by an Order of the Family Court,
Hogsmeade which dismissed a case filed by them against an Order of the Registrar of
Marriages, who had refused to grant them a marriage certificate under the Special
Marriages Act, 1954 (hereinafter “1954 Act”), on the ground that homosexual
marriages were not permitted in Neverland, the appellant has preferred the present the
leave of this Hon’ble court under Article 136 of the Constitution of Neverland.
iii. Kevin v/s Holt
The appellant has filed the present appeal against the vide Order dt. 10.10.2023, The
High Court noted that there is no provision in any matrimonial law including the
Special Marriage Act, 1954, which permitted payment of maintenance to parties in a
homosexual relationship, notwithstanding the fact that their relationship is in the
nature of a marriage. Aggrieved by Family Court’s Order was based on the grounds
inter alia that maintenance cannot be sought by a homosexual couple as there is no
valid marriage which subsists between the parties, the appellant has preferred the
present the leave of this Hon’ble court under Article 136 of the Constitution of
Neverland.
iv. X v/s Union of Neverland.
The petitioner has approached the Hon’ble Supreme Court of NEVERLAND to hear
and adjudicate over the instant matter under Article 32 of the Constitution of
Neverland. The present petition has been filed by the petitioners for being aggrieved
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against related to the violation of his Fundamental Rights as a result of the arrest,
another question involved pertained to same-sex marriages, which therefore
warranted that this matter too, be heard by the Constitutional Bench.

STATEMENT OF FACTS

1. Neverland is a democratic republic with a constitution emphasizing liberty, equality,

fraternity, and secularity. Despite being the world's most populous nation with diverse
cultures coexisting harmoniously, it endured a 200-year colonial rule under
Springfield. Springfield not only influenced the socio-economic aspects but also
sought to reshape cultural norms, leading to laws that restricted the rights of certain
groups, including the LGBTQ+ community. The Supreme Court of Neverland, in
2018, struck down penal laws against homosexual relationships but didn't address the
contentious issue of same-sex marriages, leaving it unresolved.
2. On December 30, 2022, a homosexual couple, Cameron and Mitchell, residing in
Hogsmeade, the capital city of Neverland, appealed to the Hogsmeade High Court
against a Family Court Order that dismissed their case challenging the Registrar of
Marriages' refusal to grant them a marriage certificate under the Special Marriages
Act, 1954. The Registrar cited the prohibition of homosexual marriages in Neverland.
Unfortunately, the High Court upheld this decision on September 4, 2023, concluding
that homosexual marriages were not allowed, even under the provisions of the 1954
Act. Dissatisfied, Cameron and Mitchell filed an appeal with the Supreme Court on
September 11, 2023.
3. On February 1, 2023, Kevin C., a professor in King’s Landing, Neverland, appealed
to the King’s Landing High Court against a Family Court Order denying maintenance
from his partner Holt R. The Family Court's decision was based on the premise that a
homosexual couple, lacking a valid marriage, couldn't seek maintenance. Kevin
contended that his relationship with Holt should be acknowledged as akin to a
marriage, entitling him to maintenance. However, on October 10, 2023, the High
Court dismissed the appeal, citing the absence of legal provisions, including the
Special Marriage Act, 1954, allowing maintenance for parties in a homosexual

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relationship. Unhappy with the decision, Kevin C. appealed to the Supreme Court on
October 13, 2023.
4. The LGBTQ+ Welfare Society, a registered non-profit organization in Neverland,
filed a writ petition on 28.02.2023, before the Supreme Court, seeking recognition of
the validity of homosexual marriages. The Society argued that the rights of LGBTQ+
individuals, acknowledged in Neverland, extend to those in 'live-in relationships,'
entitling them to matrimonial rights. Alleging manifest discrimination contrary to the
constitutional guarantee of equality and equal protection of laws, the Society
requested the Court to formulate guidelines for same-sex marriage. During the initial
hearing on 03.08.2023, the Court consolidated the case with two related matters.
Subsequently, on 22.08.2023, recognizing the complexity of the issue, the Court
referred it to a larger bench, constituted as a constitutional bench by the Chief Justice
of Neverland. In the first hearing of the constitutional bench on 25.09.2023, the Court
acknowledged a preliminary objection raised by the Union, incorporating it into the
issues to be determined.
5. On 03.10.2023, a gathering of LGBTQ+ community members in Winterfell, rallying
for the recognition of same-sex marriage by the Supreme Court, turned disruptive.
Three individuals initiated anti-government slogans, accusing the government of
homophobia. Subsequently, the protest escalated into property damage, including
setting a government bus on fire. The regional police's emergency squad intervened,
issuing warnings and resorting to force when ignored. Three slogan initiators and two
arsonists were arrested and remanded to judicial custody for fourteen days. On
09.10.2023, one arrestee filed a writ petition before the Supreme Court, alleging that
the police action violated fundamental rights under Articles 19(1)(a) and 21. The first
hearing on 16.10.2023 revealed pending criminal proceedings against the accused,
prompting a preliminary objection on maintainability. The accused argued that
fundamental rights violation takes precedence over pending criminal cases, asserting
the writ petition's validity. The accused contended that the petition not only addressed
his arrest but also the recognition of homosexual marriages. The Supreme Court
acknowledged the dual nature of the legal question involving fundamental rights and
same-sex marriages. Consequently, the matter was transferred to the Constitutional
Bench with the Chief Justice's approval. Informally, the Court granted the government
the opportunity to present arguments in subsequent hearings.
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6. All the petitions have been clubbed by the Hon’ble Supreme Court and will be heard
together.

ISSUES RAISED

Whether the Supreme Court is empowered to hear a writ petition when criminal
proceedings are pending on the same subject-matter?

II

Whether homosexual marriages and maintenance to parties to such marriages are

recognized under the Special Marriage Act, 1954?

III

Whether the writ petitioner has locus standi to pray to the Court to ‘recognize’ the validity
of homosexual marriages and to further draft guidelines for protection of rights of
LGBTQ+ community?

IV

Whether the rights of parties in a ‘live-in relationship’ can extend to parties in a

homosexual relationship?

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SUMMARY OF ARGUMENTS

WHETHER THE SUPREME COURT IS EMPOWERED TO HEAR A WRIT

PETITION WHEN CRIMINAL PROCEEDINGS ARE PENDING ON THE SAME
SUBJECT-MATTER?

It is humbly submitted that there is grave violation of fundamental rights of LGBTQIA+

community as they can’t marry partner if their choice. There is no alternate and efficacious
remedy available to the petitioner except for approaching the Apex Court, only this court can
grant such declaration which the petitioners have sought.

WHETHER HOMOSEXUAL MARRIAGES AND MAINTENANCE TO PARTIES

TO SUCH MARRIAGES ARE RECOGNIZED UNDER THE SPECIAL MARRIAGE
ACT, 1954?
The recognition of same sex marriage is permissible under the Special Marriage Act, 1954 as
the language of the act is not gender or sex specific but Sex-neutral. The SMA doesn’t even
provide for explicit prohibition on same sex marriage despite having prohibition on certain
marriages. Denial of such recognition would result in grave violations of fundamental rights
and human rights.

WHETHER THE WRIT PETITIONER HAS LOCUS STANDI TO PRAY TO THE

COURT TO ‘RECOGNIZE’ THE VALIDITY OF HOMOSEXUAL MARRIAGES
AND TO FURTHER DRAFT GUIDELINES FOR PROTECTION OF RIGHTS OF
LGBTQ+ COMMUNITY?

It is humbly submitted that; it is the duty of the state to protect the fundamental rights
guaranteed to its citizens under article 21 of the Constitution. The State is under a duty to
affirmatively protect the rights of a person under Article 21, whenever there is a threat to
personal liberty even by a private actor.

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WHETHER THE RIGHTS OF PARTIES IN A ‘LIVE-IN RELATIONSHIP’ CAN

EXTEND TO PARTIES IN A HOMOSEXUAL RELATIONSHIP?

It is humbly submitted that, the impugned order of conviction suffers from infirmity and
hence is liable to set aside as no cognizance could have been taken by the Ld. Magistrate.
There was no definite identifiable class of people which was defamed. The petitioner was just
exercising his right under Art. 19(1)(a) of the Constitution and there was no mens rea to
defame the LGBTQIA+ community.

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ARGUMENTS ADVANCED

I. WHETHER THE SUPREME COURT IS EMPOWERED TO HEAR A WRIT

PETITION WHEN CRIMINAL PROCEEDINGS ARE PENDING ON THE SAME
SUBJECT MATTER?
1. The respondents humbly submits that the petitioners have approached the Hon’ble
Supreme Court under Article 32 of the Constitution of Neverland. The present writ
petition is not maintainable as a public interest litigation. It is respectfully submitted
that (A) there is grave violation of fundamental rights and (B) there is no alternate and
efficacious remedy available to the petitioner.
A. That there is no grave violation of fundamental rights.

2. The present petitioners have approached this Hon’ble court for seeking a declaration
of legality of same sex marriage in India. It is humbly submitted that, an Action under
Article 32 cannot lie in the Supreme Court unless there is an infringement of a
Fundamental Right,1 as the Supreme Court has previously observed that ‘the violation
of a fundamental right is the sine qua non of the exercise of the right conferred by
Article 32.’2 Therefore, no question other than relating to a Fundamental Right will be
determined in a proceeding under Art. 32.3
3. In the instance case, 3 men began to yell slogans targeting the incumbent Union
Government, whereby they alleged that the Government was homophobic and that its
continuance at the Centre was bound to destroy the rights of the community. Article
19(1)(a) confers freedom of speech to the citizens of this country and, thus, this
provision ensures that the petitioners could raise slogan, albeit in a peaceful and
orderly manner, without using offensive language. But in the instance case the
petitioner made use of offensive language and the speech has all the ingredient to
show intention of the petitioner to Incitement of public against the government.
4. In the light of above facts the members of the rally began to break public property and
facilities with hockey sticks, golf sticks, etc. A government bus which was passing by
was halted, the passengers made to exit it and then, was set on fire by the protestors.
the emergency squad of the regional police quickly assembled at the protest site and
warned the protestors to stop, warnings of the police were not paid heed to. “From
1
Gopal Das Mohta v. Union of India, AIR 1955 SC 1.
2
Fertilizer Corp. Kamgar Union v. Union of India, AIR 1981 SC 344
3
Coffee Bd. v. Joint C.T.O, AIR 1971 SC 870
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the above, it is clear that Articles 19(1)(a) and (b) gives constitutional right to all
citizens freedom of speech and expression which includes carrying out public
demonstration also but public demonstration when becomes violent and damages the
public and private properties and harm lives of people it goes beyond fundamental
rights guaranteed under Article 19(1) and becomes an offence punishable under law.
Therefore, if there is no such action that may infringe or pose a threat to the
Fundamental Rights of the citizens, then jurisdiction under Art. 32 cannot be invoked,
on fragile grounds.”4

B. There is no excessive use of force by police.

Laws restricting free speech Heads of Person/Class of person
restriction sought to be protected
traceable to and the nature of
Article 19(2) protection
Section 117 IPC-Abetting commission of 1. Public Individual persons
offence by the public or by more than ten order Protection from incitement
persons. There is an illustration under the 2. Incitement to commit offence.
section which forms part of the statute. to an
This illustration seeks to restrict freedom offence
of expression
Illustration:A affixes in a public place a
placard instigating a sect consisting of
more than ten members to meet at a
certain time and place, for the purpose of
attacking the members of an adverse sect,
while engaged in a procession. A has
committed the offence defined in this
section.
Section153A(1)(a)IPC: Promoting enmity 1. Public Groups of persons -
between different groups on ground of order Protection from disrupting
religion, race, place of birth, residence, 2. Decency harmony among different
language, etc. and doing acts prejudicial and sections of society.
to maintenance of harmony Morality
Section 505(1)(c) IPC: Statement 1. Public Class/community of
intended to incite any class or community order people.
of persons to commit any offence against Protection from incitement
any other class or community. to commit violence against
class or community.

5. This Court, however, noticed that more often than not,

“such protestors take to hooliganism, vandalism and even destroy public/private
property. In the process, when police tries to control, the protestors/mob violently
target policemen as we. All these situations frequently result in police using force.
4
Federation of Bar Association in Karnataka v. Union of India, (2000) 6 SCC 715.
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This in turn exacerbates public anger against the police. Thus, on the one hand, law
and order needs to be restored and at the same time, it is also to be ensured that
unnecessary force or the force beyond what is absolutely essential is not used. There
are various documents in the form of police manual and even international covenants
proscribing use of unnecessary force and mandating that force should only be used
when it is absolutely necessary. Even when used, it should be minimum and
proportional to the situation and its use to be discontinued as soon as the danger to
life and property subsides.”5
6. In the instance case, the members of the rally began to break public property and
facilities with hockey sticks, golf sticks, etc. and government bus which was passing
by was halted, the passengers made to exit it and then, was set on fire by the
protestors. “This is when a public assembly becomes “unlawful”, which is defined in
Section 141 of IPC, 1860. Under these circumstances, the district administration and
the police are permitted to disperse the crowd to prevent injuries or damage. This
may entail the use of force in a controlled and specified manner. We also have
Section 268 IPC which defines “public nuisance” as, any act “which must
necessarily cause injury, obstruction, danger or annoyance to persons who may have
occasion to use any public right”. Further, Section 143 CrPC empowers an Executive
Magistrate to prohibit the repetition or continuation of public nuisances and Section
144 CrPC permits the issuance of directions to members of the public to abstain from
a certain act or to take certain orders with respect to certain property in his
possession or under his management, if such Magistrate considers that such direction
is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any
person lawfully employed, or danger to human life, health or safety, or a disturbance
of the public tranquillity, or a riot, or an affray. These legal provisions provided a
wide array of powers to the police, including the right to use reasonable force to
disperse any unlawful assembly and maintain public order.”6
7. In the instant matter, the petitioners have approached this Hon’ble without any cause
of action. No fundamental right of the petitioner is violated and thus the present
petition lacks sufficient cause of action and hence, is liable to be dismissed at the very
onset.

5
Anita Thakur v. State of J&K, (2016) 15 SCC 525.
6
Anita Thakur v. State of J&K, (2016) 15 SCC 525.
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C. Alternate and efficacious remedy is available to the petitioner.

8. There exists an alternate and efficacious remedy to the petitioners to go to the Hon’ble
high court for the instant matter. Despite the available remedy, they have directly
approached the Supreme court.
9. The Supreme Court in the case of State of Orissa v. Gokulnanda Jena 7 had held that
writ petition against administrative orders under Article 226 and Article 32 are
maintainable subject to rules of exhaustion of remedies. It has also been reiterated
several times that when a remedy under Article 226 is available the Supreme Court
would not normally entertain a petition under Article 32. 8 This Court does not, as a
general rule, go into such controversies in proceedings for a writ of habeas corpus.
Such a writ is not granted where a person is committed to jail custody by a competent
court by an order which prima facie does not appear to be without jurisdiction or
wholly illegal and we are not satisfied that the present is not such a case.9
10. The Supreme Court in Monica Kumar (Dr.) And Another V State Of Uttar Pradesh
And Others10 ruled that:
“Though there is no provision like Section 482 of the CrPC
conferring express power on the Supreme Court to quash or set aside
any criminal proceedings pending before a criminal court to prevent
abuse of process of the court, but the inherent power of this Court
under Article 142 coupled with the plenary and residuary powers
under Articles 32 and 136 embraces power to quash criminal
proceedings pending before any court to do complete justice in the
matter before this Court.”
II. WHETHER HOMOSEXUAL MARRIAGES AND MAINTENANCE TO PARTIES
TO SUCH MARRIAGES ARE RECOGNIZED UNDER THE SPECIAL
MARRIAGE ACT, 1954?
11. It is humbly submitted by the answering respondents that, all they hereby deny and
dispute all the facts stated, contentions raised and grounds urged in all the petitions
except those which are specifically and unequivocally admitted in this reply.

7
State of Orissa v. Gokulnanda Jena, (2003) 6 SCC 465.
8
Avinash Chand Gupta v. State of U.P., (2004) 2 SCC 726.
9
Col. B. Ramachandra Rao (Dr) v. State of Orissa, (1972) 3 SCC 256.
10
Monica Kumar (Dr.) v. State of U.P., (2008) 8 SCC 781.
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12. It is humbly submitted that, the respondents oppose the prayer of the petitioners for
grant of declaration for legal recognition of same sex marriage under the Special
Marriage Act, 1954. (hereinafter referred as SMA)
A. Nature and Concept of Marriage.
13. It is submitted that at the outset the notion of marriage itself necessarily and inevitably
presupposes a union between two persons of the opposite sex. This definition is
socially, culturally and legally ingrained into the very idea and concept of marriage
and ought not to be disturbed or diluted by judicial interpretation.
14. This Hon’ble court has time and again while interpreting statutory laws, has in past
defined the term marriage as under;
“8…The language used is “husband or relative of the
husband”. Marriage is a legal union of a man and a
woman as husband and wife and cannot extend to a
woman whose marriage is void and not a valid marriage
in the eye of the law.”11
“31. Marriage is the sacred union, legally permissible, of
two healthy bodies of opposite sexes. It has to be mental,
psychological and physical union. When two souls thus
unite, a new soul comes into existence. That is how, life
goes on and on this planet.”12
15. Therefore, it is humbly submitted that, the basic essence of the marriage is a union
between two individuals of opposite sexes. The same cannot be changed by way or
writ declaration of this Hon’ble court merely on several petitions. The concept of
marriage is entirely based on cultural ethos, social standards and such other factors
defining acceptable human behavior. It is submitted that such relationships can be
governed, regulated, permitted or proscribed only by a law made by the competent
legislature. It is a competent legislature which reflects the collective wisdom of the
nation alone.
16. While the Indic civilization is not unfamiliar with non-binary gender relationships and
may not have penalized it, it is equally a fact that a union between two consenting
heterosexual adults has been and remains the norm, and public morality is typically
shaped by the norm. This does not amount to majoritarianism, but is a fact of nature
11
Reema Aggarwal v. Anupam, (2004) 3 SCC 199
12
Mr ‘X’ v. Hospital ‘Z’, (1998) 8 SCC 296.
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and society. Consequently, recognition of those classes of relations which are outside
the norm legitimately calls for a societal churn on the extent to which the penumbras
of the norm can be extended to accommodate nonnormative relationships. The
participation of the normative mainstream in this discussion is both inevitable and
indispensable in a parliamentary democracy governed by a constitution.
17. It is submitted that the Parliament has designed and framed the marriage laws in the
country, which are governed by the personal laws/codified laws relatable to customs
of various religious communities, to recognize only the union of a man and a woman
to be capable of legal sanction, and thereby claim legal and statutory rights and
consequences. It is submitted that any interference with the same would cause a
complete havoc with the delicate balance of personal laws in the country and in
accepted societal values.

i. Special Marriage Act cannot be interpretated in favor of same sex marriage.

18. Special Marriage Act 1954 revised and repealed the Act of 1872 so as to provide the
special form of marriage which could be taken advantage of by any persons in India
and by all Indian nationals in foreign countries irrespective of their religious faith
which either party to the marriage might profess.13 Special Marriage Act is a kind of
legislation which intends to liberate individuals from the traditional knots and
coercive collectivises in the matter of marriage and thereby recognizes the
independence of individuals in the society.
19. It is well settled position of law, that the title of an Act is a part of the Act and is
admissible as an aid to its construction. 14 It is humbly submitted that, the title and
preamble of the SMA is unambiguous and lays down the purpose for enactment of the
legislation by the legislature. It provides for a Special form of marriage in certain
cases, for the registration of such and certain other marriages and for divorce.15
20. The act was enacted for solemnization and registration of inter-religious and inter-
caste marriages in India which was absent in personal laws. In other words, the SMA
recognizes only the marital union of heterosexual couples, and therefore the words
man and woman in SMA do not lend themselves to the expansive interpretation
sought by the Petitioners. Neither Articles 32 nor 142 can be invoked contrary to this

13
Mookerjee, “Marriage, Separation, Divorce and Maintenances: 5th Ed. PP 91.
14
R v. Secretary of state for foreign and Commonwealth affairs,1994) 1 All ER 457
15
SMA, 1954
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express legislative intent. They can be invoked when there is silence in legislative
history such as in the case of Vishakha.16
21. The language used while enacting the SMA was kept in mind by the legislature and it
is very evident from the same that its application is to be only restricted to
heterosexual couples. The below-mentioned table lists the usage of specific
heterosexual terms in the SMA.
S. Section of the SMA, 1954 Usage of gender-neutral terms.
No
.
1. Section 4 (c) the male has completed the age of
twenty-one years and the female the
age of eighteen years;

2. Proviso, Section 12 "I (A) take the (B), to be my lawful

wife (or husband)".

3. Section 15(a) together as husband and wife ever

since

4. Section 22 When either the husband or the wife

has,

5. Section 23(1) A Petition for judicial separation may

be presented to the District Court either
by the husband or the wife

6. Section 27 (1) Court either by the husband or the

wife on the ground

7. Section 31(1) entertain a petition by a wife domiciled

8. Section 36 entertain a petition by a wife

domiciled………….to the husband's
income, it

9. Section 37 husband shall secure to the wife

16
Vishakha v. State of Rajasthan (1997) 6 SCC 241
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22. It is humbly submitted that a simple reading of the impugned laws makes clear
interpretation that intention if legislative was to recognize marriage as being the union
of one man and one woman only. The terminology used, such as “female,” in its
provisions. The terms “wife,” “husband,” and “woman” are evident proof that the
legislators who drafted these statutes never meant for them to apply to any kind of
relationship other than heterosexual marriages. The terminology employed are
narrowly defined, with only one meaning conceivable. Parliament intended to use
terminology that is specifically gendered, demonstrating that the legislative policy
supports the application of these rules in a gendered manner.
23. It is humbly submitted that, the section 4 of the SMA provides for conditions relating
to solemnization of marriage. Sub-section (c) of the aforesaid section clearly
stipulates that, the solemnization between a male and a female is only permissible
when the male has attained the age of 21 years and the female has attained the age of
18 years. It is humbly contended that the said provision cannot be read in isolation
only with respect to specifying the age criteria for two different genders. It is a settled
proposition of law that when the question arises as to the meaning of a certain
provisions in a statute, it is not only legitimate but proper to read that provision in its
context as a whole.17 It is very well settled that the intention of the legislature must be
found by reading the statute as a whole.18
24. The interpretation of the SMA is to be done keeping the legislative intent in mind.
The same has to be construed in a way as mentioned in the statute by the legislature.
This Hon’ble court has held that;
“40. It may be mentioned in this connection that the first
and the foremost principle of interpretation of a statute in
every system of interpretation is the literal rule of
interpretation. The other rules of interpretation e.g. the
mischief rule, purposive interpretation, etc. can only be
resorted to when the plain words of a statute are
ambiguous or lead to no intelligible results or if read
literally would nullify the very object of the statute.
Where the words of a statute are absolutely clear and

17
R. S. Raghunath v. State of Karnataka AIR 1992 SC 81
18
Philips India Ltd. v. Labour Court (1985) 3 SCC 103
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unambiguous, recourse cannot be had to the principles of

interpretation other than the literal rule”19
25. It is further asserted that it is forbidden to enlarge the meaning of the contested
sections by reading them down. Reading down is a method of interpretation that
should only be used when a provision's literal interpretation leads to ludicrous or
impossible outcomes. The court interprets statutes to give effect to the legislative
intent and not to give the provision a meaning that would be wholly at odds with that
intent. The same was held by this Hon’ble court as follow;
“61.Reading down the provisions of a statute cannot be
resorted to when the meaning thereof is plain and
unambiguous and the legislative intent is clear. The
fundamental principle of the “reading down” doctrine
can be summarised as follows. Courts must read the
legislation literally in the first instance. If on such
reading and understanding the vice of unconstitutionality
is attracted, the courts must explore whether there has
been an unintended legislative omission. If such an
intendment can be reasonably implied without
undertaking what, unmistakably, would be a legislative
exercise, the Act may be read down to save it from
unconstitutionality. The above is a fairly well-established
and well-accepted principle of interpretation which
having been reiterated by this Court time and again
would obviate the necessity of any recall of the huge
number of precedents available except, perhaps, the view
of Sawant, J”20
26. Consequently, the Petitioners’ prayers are an invitation to the Court to retrospectively
step into the shoes of the Legislature and rewrite the original legislative intent, which
is impermissible, unconstitutional, and undemocratic.

19
Raghunath Rai Bareja v. Punjab National Bank, (2007) 2 SCC 230
20
Subramanian Swamy v. Raju, (2014) 8 SCC 390.
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27. Thus, it is humbly submitted that, the legislative intent of enacting the SMA was very
clear that a legal recognition of marriage for inter-caste and inter-religious couples.
The legislature never intended for homosexual couples to be included under the SMA.

It is also contended that the constitutionality of any legislation is always to be

presumed and if there is any vagueness in the definition of any section, the courts
have to give such a definition which advances the purpose of the legislation and that
the courts must make every effort to uphold the constitutional validity of a statute if
that requires giving a stretched construction.21

III. WHETHER THE WRIT PETITIONER HAS LOCUS STANDI TO PRAY TO THE
COURT TO ‘RECOGNIZE’ THE VALIDITY OF HOMOSEXUAL MARRIAGES
AND TO FURTHER DRAFT GUIDELINES FOR PROTECTION OF RIGHTS OF
LGBTQ+ COMMUNITY?
28. A petitioner, whose fundamental right has been violated or threatened to be violated
has a locus standi under Art. 32.22 A person acting bona fide23 and having sufficient
interest24 in the proceedings of the PIL will alone have locus standi 25 and can approach
the court under Art. 32.26 Further, a PIL cannot be used for personal gains27 or private
profits or political motives or any oblique consideration.28
29. It is submitted that the petitioner does not have locus standi because there is no
violation of fundamental rights and the petition is not acting in public interest.
30. Fundamental rights are conferred in part III of the constitution and Art. 32 provides
power to file writ petition before the Hon’ble Supreme Court in any matter of
violation of fundamental rights. A public interest litigation is maintainable as writ
petition under Art. 32 when there is direct violation or infringement 29 of fundamental
rights of the petitioner.30 However, it has not been proved that the fundamental right of
the petitioner was directly violated on any concrete basis.

21
K.A. Abbas v. Union of India, (1970) 2 SCC 780.
22
Calcutta Gas Co. Ltd. v. State of West Bengal, AIR 1962 SC 1044.
23
Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161.
24
Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305.
25
Rajiv Ranjan Singh v. Union of India, (2006) 6 SCC 613.
26
D.B. Singh v. Union of India (2004) 3 SCC 363.
27
S.P. Gupta v. Union of India, (1982) 3 SCC 223, AIR 1982 SC 149.
28
State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402, AIR 2010 SC 2550.
29
Maganbhai Ishwarbhai Patel v. Union of India, (1970) 3 SCC 400, AIR 1969 SC 783.
30
Bhushan Power & Steel Ltd. v. Rajesh Verma (2014) 5 SCC 551.
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31. A PIL should not be ‘publicity interest litigation’ 31 and there must be genuine public
interest32 involved in the litigation. The jurisdiction of the Hon'ble Supreme Courts
cannot be invoked by a person or a body of persons to further their personal causes. 33
The respondents submit that in the present case, the Petitioners do not seek to advance
any public right, rather, invocation of the jurisdiction of the Supreme Court as public
interest litigation is made by them in an attempt to garner public attention.
32. There is no prima facie case and violation of fundamental rights. The petitioners have
filed the present petition to overthrow the present government by putting
unreasonable and baseless allegations on the government. Hence, the present petitions
fail to meet the requirement of the public at large and consequently, the petition is not
in public interest.

IV. WHETHER THE RIGHTS OF PARTIES IN A ‘LIVE-IN RELATIONSHIP’ CAN

EXTEND TO PARTIES IN A HOMOSEXUAL RELATIONSHIP?

It is humbly submitted that; the respondents oppose the prayer of the petitioners for grant of
rights to parties in ‘live-in relationship’ to parties in homosexual relationship.

A. Rights of parties in live in relationship cannot be interpreted in favour of same sex

marriage.
33. It is humbly presented before the court that live-in relationships are becoming
increasingly common in our society, the rights of such couples remain unclear and
unequal under the law. There are currently no laws that specifically protect the rights
of live-in partners. Instead, the courts have relied on interpreting existing laws in
ways that extend limited protections to live-in couples on a case-by-case basis, since
the rights that needs to be granted to them includes the rights which are granted to a
married couple and those rights are mentioned under various personal laws based on
the religion, all the laws explicitly mention that the rights would be granted to specific
gender.
34. Protection of Women from Domestic Violence Act, 2005 34; which was responsible for
affording rights to women against domestic violence, Tried to accommodate the right

31
Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349.
32
Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 542, AIR 1996 SC 722.
33
People's Union for Democratic Rights v. Union of India, (1982) 3 SCC 235.
34
Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India).
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of live in couple but the same cannot deal with same sex couple, as per Section 2(q) of
the act which mentions “respondent” means any adult male person who is, or has
been, in a domestic relationship with the aggrieved person and against whom the
aggrieved person has sought any relief under this Act: Provided that an aggrieved
wife or female living in a relationship in the nature of a marriage may also file a
complaint against a relative of the husband or the male partner; clearly states that
crime need to committed by a male person against a women which is gender specific
despite of the interpretation based on live in. In this Act, unless the context otherwise
requires, — (a) “aggrieved person” means any woman who is, or has been, in a
domestic relationship with the respondent and who alleges to have been subjected to
any act of domestic violence by the respondent.
35. The Hindu Marriage Act, 195535 interprets live-in relationship but the same should be
heterosexual in nature; same was stated in the S.P.S. Balasubramanyam v.
Suruttayan36, where court interpreted; If a man and woman live together for long years
as husband and wife then a presumption arises in law of legality of marriage existing
between the two. Hindu Marriage Act, 1955 accords the right to maintenance to
partners irrespective of gender, under Section 24 and Section 25, but limits it to only
Hindu couples, legally married as per the Act’s Section 5 of the act and section 5,
excludes for same-sex couples.
36. Similarly under Section 3 of Muslim Women (Protection of Rights on Divorce) Act,
198637, under Section 37 the Divorce Act, 1869 of Christians38 and under Section 40
of the Parsi Marriage and Divorce Act, 193639, all the rights are heterogenous in
nature.
37. In Chanmuniya v. Virendra Kumar Singh 40, the Supreme Court held that the term
"wife" in Section 125 of the CrPC, which provides for maintenance rights, should be
interpreted broadly. Under Section 125(1) CRPC act (a) read with explanation (b), a
husband is legally bound to maintain his wife, upon the fracture of their marriage or
even divorce, until the wife remarries. Therefore, with the scope of ‘wife’ being
limited to legally wedded or divorced wives and that same-sex couples cannot be

35
Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955 (India).
36
S.P.S. Balasubramanyam v. Suruttayan, (1994) 1 SCC 460
37
Muslim Women (Protection of Rights on Divorce) Act, 1986, §3, No. 25, Acts of Parliament, 1986 (India).
38
Divorce Act, 1869, § 37, No. 4, Acts of Parliament,1869(India)
39
Parsi Marriage and Divorce Act, 1936, § 40, No. 3, Acts of Parliament, 1936 (India).
40
Chanmuniya Vs. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141
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legally married in India under any personal law, the indigent partner upon the fracture
of their same-sex live-in relationship
38. Since these are based on the interpretation and they were delved because of the grey
area in the laws, so isn’t far-fetched to believe that there exists no judicial
pronouncement interpreting the Section to provide the right to indigent partners upon
the fracture of their same-sex live-in relationships
39. Same-sex couples cannot independently reproduce due to biological insufficiencies,
so the only option left for them is to adopt, but Section 5 of Adoption Regulations,
2022, a prospective adoptive parent who is eligible to adopt, irrespective of already
having a biological child, includes a single or unmarried male, single or unmarried
female and a married couple with a minimum of two years of “stable marital
relationship”,
40. The Hindu Adoptions and Maintenance Act, 195641 also allows for adoption, but only
by Hindu males and females. Furthermore, a Hindu male, as per Section 7, is only
eligible to adopt if he is in a heterosexual legal Hindu marriage and as per Section 8, a
Hindu female is eligible only when she is a widow, divorcee or unmarried.
41. As per Article 13(1) which mention ; All laws in force in the territory of India
immediately before the commencement of this Constitution, in so far as they are
inconsistent with the provisions of this Part, shall, to the extent of such inconsistency,
be void.
42. Therefore, it is humbly submitted that, same-sex relationship are inconsistent as per
laws and interpretation is based on heterogeneity and cannot be considered as a
‘relationship in the nature of marriage’. The same cannot be changed by way or writ
declaration of this Hon’ble court merely on several petitions. It is submitted that such
relationships can be governed, regulated, permitted or proscribed only by a law made
by the competent legislature. It is a competent legislature which reflects the collective
wisdom of the nation alone.
B. Denial Of Legal Recognition Does Not Breach of Part iii of the Constitution
43. It is humbly submitted that, the petitioners have contended that the denial of rights of
‘live-in relationship’ to the same sex couples is in violation to Articles 14, 15, 19 &
21 of the Constitution of Neverland. The respondents humbly submits that such
denial is not in violation of any of the provisions envisaged under Pt. III of the
Constitution of Neverland.
41
Hindu Adoptions and Maintenance Act, 1956, No. 78, Acts of Parliament, 1956 (India).
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44. Article 14 is our fundamental charter of equality. classification under Article 14 of the
Constitution, two criteria must be met: (i) the classification must be founded on an
intelligible differentia; and (ii) the differentia must have a rational nexus to the
objective sought to be achieved by the legislation. 42 It is submitted that this means that
in terms of Article 14, same sex relationships and heterosexual relationships are
clearly distinct classes which cannot be treated identically. Hence, there is an
intelligible differentia (normative basis) which distinguishes those within the
classification (heterosexual couples) from those left out (same sex couples).
45. It is further submitted that, denial of recognition is not violative of Article 15 of the
Constitution as the said Article prohibits discrimination on the grounds of only
religion, race, caste, sex, place of birth or any of them but not sexual orientation. The
words “sexual orientation”, are alien to our Constitution and the same cannot be
imported within it for testing the constitutional validity of a provision or legislation. It
is submitted that, there cannot be a basic right to recognize a specific type of social
interaction. Article 19 clearly grants all citizens the right to form associations, but this
right does not entail that the State must automatically recognize these groups as
legitimate. It is further submitted, that right to privacy as envisaged under Article 21
is not an absolute right and the same cannot override other constitutional and societal
norms.
46. It is further submitted that ruling in Navtej Singh Johar v. Union Of India 43 is that
people of the same sex are no longer prohibited from having consenting sexual
relations under Section 377, which cannot be interpreted in a way which affirms that
homosexual couples are entitled to the rights of parties in a ‘live-in relationship’
47. It is pertinent to draw attention of this Court to the decision in Union of
India v. Deoki Nandan Aggarwal44 wherein it was observed that the Court cannot
rewrite, recast or reframe the legislation for the good reason that it has no power to
legislate since the power to legislate has not been conferred upon the Court and,
therefore, the courts cannot add words to a statute or read words into it which are not
there. The courts are to decide what the law is and not what it should be.
48. It is further submitted, that right to privacy as envisaged under Article 21 is not an
absolute right and the same cannot override other constitutional and societal norms.

42
State of W.B. v. Anwar Ali Sarkar, (1952) 1 SCC 1.
43
Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, (2018) 10 SCC 1.
44
Union of India v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323
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49. In Common Cause (A Regd. Society) v. Union of India45, it has been held;
The danger of the judiciary creating a multiplicity of
rights without the possibility of adequate enforcement
will, in the ultimate analysis, be counterproductive and
undermine the credibility of the institution. Courts cannot
‘create rights’ where none exists nor can they go on
making orders which are incapable of enforcement or
violative of other laws or settled legal principles.
50. Therefore, in light of above-referred citations and arguments, it is humbly submitted,
that the denial of legal recognition to the marriage does not violate any rights
envisaged under Pt. III of the constitution of Neverland.

45
Common Cause (A Regd. Society) v. Union of India, (2008) 5 SCC 511.
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PRAYER

Wherefore, in the light of the facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed before the Hon’ble Court, that it may be graciously
pleased to adjudge and declare that

1. Same sex marriage for homosexual couples is recognized and be registered under the
provisions of Special Marriage Act.
2. The State is under a duty to affirmatively protect the rights of a person under Article
21, whenever there is a threat to personal liberty even by a private actor.
3. The impugned order of conviction passed by the trial court be set aside and the
appellant be acquitted with the charges.
4. Direct the ministries to unblock the official account of the petitioners as blocking
them is in violation of the fundamental rights.

And pass any such other order as it deems fit in the interest of equity, justice and good
conscience.

All of which is most humbly and respectfully submitted

Date: __/__/2023 Sd/-

Place: (Counsel for the Petitioner)

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