Marriage Equality | 5 Reasons Why Supreme Court Didn't Include Same-Sex Unions Under Special Marriage Act

On October 17, 2023, a Supreme Court Constitution Bench unanimously held that it could not strike down or read down the provisions of the Special Marriage Act (SMA),1954 to include non-heterosexual unions within the ambit of 'marriage'. In doing so, the Supreme Court effectively denied legal recognition for queer marriages in India. Despite the Constitution bench having pronounced four judgements– written by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat and Justice PS Narasimha respectively, with Justice Hima Kohli concurring with the view of Justice Bhat, all five judges, in one voice, agreed to not strike or read the SMA down. The court stated that reading the provisions of the SMA to bring within its fold queer marriages would amount to a legislative exercise which fell exclusively within the domain of the Parliament.

The petitioners had urged the Court to read the Special Marriage Act, particularly the words "man" and "woman" used in Section 4, in a gender neutral way so that queer marriages can also be registered as per its provisions.

I. Reading Down SMA To Include Queer Marriages Has A 'Complex Workability'

As per the judgement written by CJI DY Chandrachud, Section 21A of the SMA linked the Act to personal and non-personal laws of succession, making the issue extremely complex in nature. Highlighting the said complexity, the CJI stated that even the petitioners themselves had to submit lengthy charts on workability of reading SMA down to include queer marriages within its ambit. On a similar note, Justice Kaul, in his judgement, also stated that the entitlements devolving from marriage were spread out across a "proverbial ‘spider’s web’ of legislations and regulations" and thus, tinkering with the scope of marriage under the SMA could have "a cascading effect" across various laws.

II. Holding SMA As Void Would Take India Back To Pre-Independence Era

The CJI, in his judgement, stated that the SMA was enacted to enable persons of different religions and castes to marry. In this context, if the SMA was held void for excluding queer couples from its ambit, it would take India back to the pre-independence era, where persons of different religions and castes could not get married. He added that "such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another." Justice Kaul, concurring with the CJI also stated that SMA postulated a "special form of marriage" available to any person in India irrespective of faith and as such provided a secular framework for solemnization and registration of marriage. 

III. Reading Words Into SMA Would Amount To Entering Realm Of Legislature 

The CJI, in his judgement, stated that reading words into the provisions of the SMA and other allied laws would mean entering into the realm of the legislature. He added that the Court was not equipped to undertake an exercise of such wide amplitude because of its "institutional limitations". The CJI remarked in his judgement– "This Court would in effect be redrafting the law(s) in the garb of reading words into the provisions. It is trite law that judicial legislation is impermissible." Elaborating further, he stated that whether a change should be brought into the legislative regime of the SMA was for the Parliament to determine as the Parliament had access to varied sources of information and represented in itself "a diversity of viewpoints in the polity". Expressing a word of caution, the CJI stated that the Court in the exercise of the power of judicial review must be careful not to tread into the legislative domain. While Justice Kaul, in his judgement, held that SMA was unconstitutional as it violated Article 14 of the Indian Constitution, he agreed with the CJI in stating that due to limited institutional capacity, the Supreme Court did not possess an adequate form of remedy as the same fell within legislative domain. 

IV. Constitutionality Of SMA

The issue of constitutionality of the SMA was one where different opinions of different judges came up. Justice Kaul held that the SMA was unconstitutional as it violated Articles 14 and 15 of the Indian Constitution. He stated that if the intent of the SMA was to facilitate inter-faith marriages, then there would be no rational nexus with the classification it makes, that is, excluding non- heterosexual relationships. He added that an objective to exclude non-heterosexual relationships would be unconstitutional, especially after the Supreme Court's judgement in Navtej Johar v. Union of India, which prohibited discrimination on the basis of sexual orientation. 

Per contra, Justice Bhat, speaking for himself and Justice Kohli, stated that SMA could not be held as unconstitutional. He stated that the sole intention of the SMA was to enable marriage, as it was understood at the time the 1954 Act was passed (i.e., for heterosexual couples), of persons of different faiths. He added– "There was no idea to exclude non- heterosexual couples, because at that time, even consensual physical intimacy of such persons, was outlawed by Section 377 IPC." Thus, the Act did not include same-sex marriages within its fold. In this context, he stated that as per the decisions of the court, as long as an objective was clearly discernible, it could not be attacked merely because it did not make a better classification. Further, he added that the original rationale for SMA, that is, to facilitate inter-faith marriages could also not be condemned on the ground of irrelevance, due to passage of time. He stated that–

"The relevance of SMA has gained more ground, because of increasing awareness and increasing exercise of choice by intending spouses belonging to different faiths. It cannot be said, by any stretch of the imagination that the exclusion of non-heterosexual couples from the fold of SMA has resulted in its ceasing to have any rationale, and thus becoming discriminatory in operation. Without a finding of that kind, it would not be open to the court to invoke the doctrine of “reading down”."

Justice PS Narasimha agreed with the view of Justice Bhat and Justice Kohli. 

V. Gender Neutral Terms In SMA Would Result In 'Anomalous' Outcomes

Justice Bhat, in his judgment, delved into the complexities of interpreting the SMA in a gender-neutral manner. He argued that such an interpretation, while seemingly progressive, might not always be equitable and could expose women to unintended vulnerabilities.

He pointed out that terms like 'wife,' 'husband,' 'man,' and 'woman' in marriage laws, as well as laws addressing sexual violence and harassment, were intended to protect socially marginalized individuals. These terms were designed to ensure that those facing violence and injustice, particularly women, had legal recourse. For instance, the Domestic Violence Act guarantees protection and relief to women facing violence at the hands of their partners. Provisions in the SMA, such as alimony and maintenance (Section 36 and 37), confer specific rights to women. Additionally, certain grounds for divorce (like the conviction of a husband for bigamy or rape) offer the wife additional grounds to seek divorce (Section 27).

According to Justice Bhat, the general pattern of these provisions, along with the specific benefits they offer to women, would result in anomalous and unworkable outcomes if the SMA were to be interpreted in gender-neutral terms. 

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Other reports about the judgment can be read here.