This blog is a part of a research paper written by Mr. Udayan Mukherjee, titled “Legalizing Homosexual Marriages: An Impracticable Conjecture in the Indian Perspective”. Please read the entire paper for more context and clarity.
In India, the Constitution is the supreme law. Part III of the Constitution, dealing with fundamental rights guarantee to all its citizens an array of inalienable rights which they are entitled to. Needless to say, any law which is violative of one’s fundamental rights is unconstitutional. Advocates of same-sex marriage insist that not recognizing the legal validity of the same is in violation of the rights guaranteed to the people under Art. 14, 19, and 21. This part of the paper shall explore the validity of such an argument. The situation in this regard will be addressed in a two-fold manner; first, in relation to personal religious laws, and then with reference to statutory marriage legislations, namely the Special Marriage Act, 1954, and the Foreign Marriage Act, 1969.
India as a secular democratic republic allows its citizens to practice their personal laws and customs in marriage. As discussed earlier, they are either codified, as in the case of Hindus, or uncodified, as in the case of Mohammedans. However, it is also true, that the fundamental rights guaranteed under Part III of the Constitution are supreme, and there can be no law that derogate the same. So the question arises as to whether courts are empowered to interfere with the personal religious laws or not. This issue was first addressed in a Bombay High Court decision in the case of State of Bombay v. NarsuAppa Mali[1]where CJ Chagla, as His Lordship then was, came to the conclusion that personal law does not come within the ambit of “laws in force” under Art. 13(1)[2] and thus cannot be tested against Part III of the Constitution. This decision, especially Hon’ble Justice Gajendradhkar (as His Lordship then was) was not agreed upon by Hon’ble Justice Nariman in the Triple Talaq case[3]Sabrimala case[4] where Nariman J. However, his Lordship also stated[5] that it was “unnecessary to decide the correctness to decide where the judgment of NarsuAppa Mali is good in law.” Hon’ble Justice D.Y. Chandrachud, in his decision, severely criticising this Bombay High Court decision, finally observed that the judgement in Narsu[6]would require detailed consideration in a future case. Thus it may be concluded that the judgement of Narasu[7] so far as Justice Gajendragadhkar’s reasoning is concerned is no longer good in law. The Hon’ble Apex Court, in both the abovementioned cases[8] specifically critiqued Justice Gajendragadhkar’s rationale but did not overrule the judgement as they clearly stated that the correctness of the judgment in itself must be considered in a future case. It may also be pertinent to note that the decision of the Hon’ble Apex Court in the Sabrimala[9] is still pending for review before their Lordships. It may be safe to conclude in this regard that the decision in Narusu[10] and CJ Chagla’s reasoning therein may still be legally sound so far as to conclude that personal laws are not “laws in force” as laid down in Art. 13(1).
That being said, personal laws and related customs and uses are essentially protected under Art. 25 of the Constitution. The question arises, as to the remedy when such personal laws and customs and usages are in violation of an individual’s other fundamental rights guaranteed under the Constitution? Courts time and again have come to the conclusion that in order to strike a balance between protection of personal laws and the other fundamental rights, all practices that do not conform with the standards of an “essential religious practice” ought to be struck down as unconstitutional. The very concept and nature of essential religious practices was first dealt with in the Shirur Math[11] where the court laid down the test of essential religious practice and held that that the term “religion” would include all such rituals and practices that are “integral” to a religion Essential religious practice test is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion and ought to be protected under Art. 25 and 26 of the Constitution. To understand this further, the nature of religion and such essential practices must be discussed in greater detail.
“Religion” – Can it be defined?
While the Constitution has nowhere defined the term “religion”, the Hon’ble Supreme Court, in Shirur Math[12] provided a comprehensive understanding of the term in the following words:
“Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or any intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conductive to their spiritual wellbeing, but it would not be correct to say that religion is nothing else but a doctrine or belief, A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.”[13]
Essential Religious Practice
The balance of the right to practice religion and the other rights of personal liberty enshrined in our Constitution may often be conflicting, and therefore, only such religious practices that are essential to the existence of the religion are to be protected under Art. 25, while those that are not integral are not protected under this provision.[14] Therefore it becomes very pertinent to understand as to what can be termed as a practice that is essentially religious.
What constitutes an integral and essential part of a religion or a religious practice has to be decided by the respective courts with regard to the doctrines of a particular religion and includes practices regarded by them as a part of their religion.[15] It is also pertinent to mention that Art. 25(2)(b) grants powers to the state to pass any law providing for social welfare or reforms, and the same cannot be barred under Art. 25(1). However, this power is not absolute, and the court, in Syedna Taher Saifuddin Saheb v. State of Bombay[16] held that the locution “law providing for social welfare and social reform” is not intended to cover the basic essentials of a religion which are protected under Art. 25(1).
From the above, it may be safe to conclude that neither the Parliament nor the courts are empowered to interfere and effect changes into the essentialities of any religion. Keeping that in mind, this paper shall attempt to establish how the very nature of marriage, being a sacrament of sorts, and more than a contract between two individuals with regard to every religion and their personal laws. The attempt is to establish how the nature of marriage itself, along with its essential rituals and observances are essential religious practices, and the same cannot be interfered with so as to include the recognition of homosexual relationships in the form of marriage.
For the sake of uniformity, however, for the purpose of this paper, it may be apt to assume that personal laws are subject to judicial review as per Art.13 to the extent that the court can strike down such a law, custom or usage so far as the same is not an essential religious practice and is protected under Art. 25. Hence, personal laws, to that effect are best kept beyond the scope of fundamental rights.[17]This entire premise is based on the assumption that the decision in Narsu[18] in its entirety is no longer good in law even though the same has not been expressly overruled.
The Hon’ble Supreme Court of India, in Riju Prasad Sarma v. State of Assam[19] expressly held that religious beliefs, customs and practices based upon religious faith and scriptures cannot be treated as void. With these established premises of law in mind, let us proceed to see how the nature of marriage under the various becomes essentially religious, to such an extent that any interference with the same would be to interfere with the structure of the religion in a way not permissible under Art. 25.
In Hindu law, marriage is a religious sacrament. Vivaha or marriage is recognised by Hindus as one of the samskaras or obligatory rites that are part of a Hindu’s life.The observance of the samskaras is based on custom fully as much as on texts such as the Grihya-sutras, the epics, or the Puranas and differs considerably according to region, caste, or family. Nonetheless, certain practices in Hindu marriages are fundamental in nature and of great significance, which reinforces the idea that a Hindu marriage is a holy union between a man and his wife. Certain examples of the same may be the concept of kanya daan by the father of the bride which includes an address by him to the groom. Another example is the climax of most Hindu wedding ceremonies: Mangalyadharanam, where the groom ties a gold necklace, known as mangalasutra, around the bride’s neck. This confirms and seals the bond between the couple. Traditionally, that is the sacred moment in the wedding when they become husband and wife.Saptapadican be taken as another example. Vedic Hindu texts such as Atharva Veda or even the Manusmritilay down certain familial, social and religious duties of a husband and a wife to each other as well as the society and religion in general. These are so profoundly intertwined the basic tenets of Hinduism that it indubitably leads to the conclusion how the nature of marriage in Hinduism is an integral part of it. The very concept of marriage, being the union of a man and a woman touches the basic tenets of the religion and are essentially religious and must be protected under Art. 25.
In Islam, the law governing marriage, or nikah is The Muslim Personal Law (Shariat) Application Act, 1937[20]. Marriage and family are preeminent in Islam. Islam treats nikah as strong bond “mithaqun Ghaleez” a testing commitment. It is a commitment to life itself, to society and to the dignified, meaningful continuation of the human race. It is a commitment made to one another as well as to God. It is a kind of commitment in which the couple find mutual fulfillment and self realization, love and peace, compassion and serenity, comfort and hope. All this is because marriage in Islam is regarded first and foremost as a righteous act, an act of responsible devotion. The main objective of a Muslim marriage is the preservation of human race by sanctioning sexual relations between two members of the opposite sexes, the encouragement of chastity and the promotion of love and union between the husband and wife and of mutual help in earning livelihood.[21]“Nikah” in Islam, is fundamentally the union of a biological male and a biological female. In Islam, marriage is an inalienable religious duty, a moral safeguard and a social contract. It is a religious duty that has to be fulfilled; and like every other such duty in Islam, it is enjoined only upon such persons who are capable of meeting the responsibilities they come with.[22]
Islamic marriage is also a social and religious institution. The Prophet is reportedly said; “He who marries completes half of his religion; it now rests with him to complete the other half by leading a virtuous life in constant fear of god”[23]
Apart from the legal and social implications of Nikah, the Holy Quran directs every Mohammedan to contract marriage a suitable woman of his choice. It is therefore a religious duty of every Muslim to contract a marriage in accordance with the tenets of Islam. A man who remains a bachelor without any reasonable excuse is essentially deemed to disobey the words of Allah. Moreover, marriage is also the tradition of the Prophet of Islam. Marriage is an act of such a nature that if a man engages in it, he receives religious benefits. If he abstains, however, he commits sin. Nikah, or marriage is recognized as the basis of society. The very nature and concept of Islamic marriage is closely linked to the religion, and procreation of children is seen to be an innate precondition to it. In conclusion, it would follow that incorporation of same sex relationships within the meaning of marriage under Islamic personal law would be an attack on the foundations of Islam and its laws.
In other religions that are professed and practiced in India as well, marriage under their personal laws seem to be closely related to God and the religion itself. While customs and practices involved in the marriage itself may involve certain practices that may or may not qualify as an essential religious practice that is protected under the Constitution, there is no doubt in concluding the concept and idea of marriage that forms a basis for such other customs and rituals are essential to the religion is deep-rooted. It is needless to say that altering the definition of marriage, irrespective of the religion would affect several aspects that are supreme and essential to such respective religions. In Syedna Saheb[24], the Hon’ble Supreme Court further held that “law providing for social welfare and social reform” in Art. 25(2)(b) is not intended to cover the essential practices of a religion which are protected under Art. 25(1).
While personal laws govern a significant percentage of marriage in India, other statutes such as the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969 also govern marriages in India beyond personal religious laws. One may definitely argue that the Special Marriage Act, 1945, excluding same-sex marriages is unconstitutional as it may be violative of Art. 14, 19 and 21. It is of paramount importance to note that there is a presumption of constitutionality[25] in favour of all laws, and one must prove the violation of fundamental rights in order to strike down a certain law; or incorporate and include something, as in the present case.
The constitutional validity of Special Marriage Act, 1954 (specifically Sec. 4, whose conditions for a valid marriage are such that it is impossible to recognize homosexual marriages within it) and Foreign Marriage Act, 1969 (specifically Sec. 11, which refuses recognition of marriages that are in contravention to any Indian law) will be tested against Art. 14, 19 and 21 for the purpose of this paper, to scrutinize whether such exclusion is, indeed unconstitutional. Along with this, solely for the purpose of argument, even if it is considered that marriage under personal laws are not an essential religious practice, the same will also be tested against the fundamental rights guaranteed under Art. 14, 19 and 21.
Though the right of marriage is not expressly provided as a fundamental right under the Constitution, its recognition as a fundamental right has developed from various judicial decisions that form a part of the law under Art. 141. The first instance where the court recognized such a right was way back in 2006, in Lata Singh v. State of U.P.[26] where, deciding on the validity of an inter-cast marriage held that the petitioner being a major had absolute rights to decide who she wanted to marry. The court however, clearly held that this judgment was not intended to law down a law in this regard. Again, in 2016, the Hon’ble Apex Court took suo motocognizance of a newspaper report regarding the gang-rape of a 20 year old girl ordered by the panchayat as “punishment” for having relations with a man from a different community. Here, the court expressly held that the inherent aspect of Art. 21 is the freedom of choice in marriage.[27] Right of choice was also expressly included within Art. 21 in the landmark judgment of Justice KS Puttaswamy (retd) and another v. Union of India and others[28]. This aspect was subsequently referred to in the case of Shakti Vahini v. Union of India[29] where the 3 judge bench led by Dipak Mishra, CJ. held that consenting adults have the right to enter into wedlock. The same view was taken by this court in Shafin Jahan v. Asokan K.M. and Ors[30] as well. It becomes pertinent to note that while these decisions have reiterated on the idea that right to choice of partner in marriage, it does not declare the right to marry as a fundamental right; something that is very different from right of choice, and secondly, it refers to marriage, which in the very essence and meaning of the term means a union of a man and a woman under personal laws or other statutes. These rights recognized by the Hon’ble Apex Court are also not absolute. If that had been the case, it would open the floodgates to innumerable instances where persons would proceed to marry within prohibited degrees, citing their right to choose a partner in marriage. However, such is not the case.
The Hon’ble Supreme Court, in Puttaswamy[31] extensively delved into the concept of privacy and personal liberty, while in Navtej Singh Johar[32], citing such reasons of personal liberty decriminalized Sec. 377, IPC. The Supreme Court, in Puttaswamy[33] clearly held that the right to personal choices that govern one’s life is an intrinsic part of right to privacy. However, both the judgments that dealt with sexual orientation and identity in such detail, while upholding a person’s right to conduct his affairs in private, did not expressly pronounce the right of same sex marriages. This is because of the inherent nature of marriage itself that has been reiterated in this paper several times. Marriage is more than just a contract between two individuals.
In light of Art. 14 as well, non-recognition of same sex marriages is not a violation. It is a settled position of law that a person claiming arbitrariness in a law must prove the same.[34] This can be done by showing as to how such law is uninformed by reason inasmuch as there is no discernible principle on which it is based or that simply it is unreasonable. The test of reasonable classification which been developed by the courts has probably best been laid down by Bhagwati, J. in Ajay Hasia v. Khalid Mujib Sehravardi[35] where he held that if any such classification is not reasonable so as to not satisfy the two conditions, namely, intelligible differentia and rationale behind such differentia and the object of the law, the law in question would be arbitrary and breach the rights guaranteed under Art. 14. Article 14 propounds that all who are like must be treated alike, and thus gives rise to a reasonable classification. Specifically with regard to marriage laws, irrespective of the fact whether they are personal laws or legislations enacted by the parliament, there appears to be no arbitrary discrimination in violation of Art. 14 by excluding people by virtue of their sexual orientation. This is essentially because of the very nature of marriage being heterosexual in nature. Marriage, be it be treated as sacramental or a mere contract, is very different from other legal, religious and social relations. Thus it may be said, that the exclusion of homosexuals from within these marriage legislations is based on sexual orientation. Society has evolved to socially, religiously, and customarily as a union of opposite sexes. Marriage laws have evolved around this, and therefore it may be said that homosexuals, for the purpose of marriage are “unlike” heterosexual couples who are able to perform and fulfill the requirements of marriage under personal laws as well as parliamentary legislations.
This classification that holds homosexuals as a separate class as compared to heterosexuals for the purpose of marriage is based on an intelligible differential. The phrase essentially means such differences that are capable of being understood. The object of the law may be treated as a legitimate basis of classification. Personal laws, naturally arising out of religious laws, customs and practices have viewed marriage as something that is an inherent part of the religion and even a duty in some cases. In most personal laws, procreation is a key consideration and aspect of marriage. Personal laws lay down rights and duties for the spouses, and are to be specifically performed either by the husband or the wife. Statues have also been drafter around the concept of marriage in a sense that it is commonly understood. It is quintessential to reiterate that marriage is just not another relationship between two persons given legitimacy in law. The very nature of homosexual relations in the nature of a unit of family is alien to the concept of marriage. Therefore, if this distinction is seen in light of the objective of marriage legislations, coupled with the reasonable nexus between the distinction and such objectives, it can clearly be understood that exclusion of same sex marriages under existing laws are not in violation of Art. 14.
While right to sexual identity and autonomy have been identified as an integral part of Art 21[36], an aspect that has perhaps not been addressed in ineluctable detail is the fact that homosexuality is yet to be proved as a normal behavior, as discussed in the first chapter of this paper. While right of choice and identity are very much a fundamental right, it may not be in the best interest to endorse choices and identity traits that may be arising out of certain mental disorders. Even if one keeps that aspect aside, the decriminalization of Sec. 377, IPC would allow homosexual couples to lead a dignified private life together. However, this right is very different from the right of marriage which has various social implications. The institution of marriage revolves around various fundamental choices such as when to marry, whom to marry, among a few other choices, which are essentially protected under Art. 21. However, the right to marry in itself is not a fundamental right guaranteed under the Constitution and must be contracted within the existing laws relating to the same.
In fact it may not be within the powers of the court to interpret the existing laws; be it personal or statutory in order to legalise same sex marriages. The Hon’ble Apex Court, time and again have reiterated that while courts are empowered to read down a law in order to protect it from unconstitutionality, in doing so, the court cannot change the essence of the existing law and create a new law.[37] When the provisions of the law are clear and unambiguous; and the object of the law is clear, it is not permissible to bend or alter the meaning of such law even if it is accord with good reason and conscience. Laws governing marriage in India, specifically the legislations of the parliament, or even the codified personal laws of various faiths are very clear and unambiguous relating to the nature and concept of marriage so as to show what is permissible under them, and thus cannot be interpreted otherwise.
[1]AIR 1956 Bom 84.
[2]The Constitution of India, art. 13.
[3]ShayaraBano v. Union of India, (2017) 9 SCC 1.
[4]Indian Young Lawyers’ Association &Ors. v. State of Kerala &Ors, (2019) 11 SCC 1.
[5]Supra note 58.
[6]Supra note 56.
[7]Supra note 57.
[8](2019) 11 SCC 1, (2017) 9 SCC 1.
[9]Supa note 60.
[10]Supra note 57.
[11]Commissioner, Hindu Religious Endowments, Madras v. Sri LakshmindraThirthaSwamiar of Sri Shirur Mutt, AIR 1954 SC 282.
[12]Id.
[13]Id.
[14]Commissioner, Hindu Religious Endowments, Madras v. Sri LakshmindraThirthaSwamiar of Sri Shirur Mutt, AIR 1954 SC 282.
[15]Seshammal v. State of Tamil Nadu, (1972) 2 SCC 11, See also, Adi Saiva Sivachariyargal Nala Sangam v. State of Tamil Nadu, (2016) 2 SCC 725.
[16]AIR 1962 SC 853.
[17]Gary Jeffrey Jacobson, Constitutional Identity23-25 (Harvard University Press, 2010).
[18]Supra note 56.
[19](2015) 9 SCC 461.
[20]The Muslim Personal Law (Shariat) Application Act, 1937 (Act 26 of 1937), s. 2.
[21] Muhammad Ibnu Ali Alarfaj,What Must Be Known About Islam 288 (Darul Huda, Chennai, 2009).
[22] Dr. Meraj Ahmad Meraj. “THE IMPORTANCE OF MARRIAGE IN ISLAM.” International Journal of Research – Granthaalayah, 6(11),available at: https://doi.org/10.29121/granthaalayah.v6.i11.2018.1082 (last visited on July 15, 2021).
[23]Id.
[24]AIR 1962 SC 853.
[25]Ram Krishna Dalmia v. S. R. Tendolkar, AIR 1958 SC 538.
[26](2006) 5 SCC 475.
[27] In Re: Indian Woman says gang-raped on orders of Village Court published in Business & Financial News dated 23.01.2014, SUO MOTU WRIT PETITION (CRIMINAL) NO. 24 OF 2014.
[28](2017) 10 SCC 1.
[29](2018) 7 SCC 192.
[30](2018) 16 SCC 368.
[31]Supra note 85.
[32]Supra note 1.
[33]Supra note 85.
[34]Kumari Shrilekha v. State of UP, (1991) 1 SCC 212; See also, State of Maharashtra v. Manubhai Pragaji Vashi, (1995) 5 SCC 730.
[35](1981) 1 SCC 722.
[36]National Legal Services Authority v. Union of India &Ors, (2014) 5 SCC 438.
[37]Namit Sharma v. Union of India, (2013) 1 SCC 745; See also, D. S. Nakara v. Union of India, (1983) 1 SCC 305.
Passionate about using the law to make a difference in people’s lives. An Advocate by profession.
