Petition Explained: Marriage Equality Under the Special Marriage Act by Dr. Kavita Arora and Ankita Khanna

This post is part of a series on legal advocacy involving marriage equality in India. Read other posts in the series.

Who Are The Petitioners?

The petitioners are Dr. Kavita Arora (Twitter) and Ankita Khanna (Twitter), a couple who have been together for 10 years and are also living together with Arora’s father. Khanna was married earlier but divorced after 4 years when she realised she loved Arora. Arora and Khanna run a company that provides mental health services for children and adolescents and are a psychiatrist and psychologist respectively. Arora is also a member of the Association for Transgender Health in India and conducts workshops on mental health for transgender persons. Khanna has also conducted workshops on the impact of gender and sexuality on mental health. With various difficulties in organising their shared life and the realisation during the COVID pandemic that if something were to happen to them, their partner could not take end-of-life decisions, they applied for a marriage certificate in Delhi in September 2020. They were not allowed to enter during their appointment and refused any written explanation.

Watch an interview with the petitioners here and read interviews with them here and here.

What Are They Asking For?

The petitioners are asking the Delhi High Court to declare that the Special Marriage Act, 1954 is unconstitutional as far as it excludes the solemnisation of same-sex marriages. They ask the Court to declare that all couples irrespective of sexual orientation and gender identity should be able to register their marriage under the Special Marriage Act, 1954. They also ask the Court to specifically order the Delhi Sub-Registrar to register their marriage. Persons of any religion may register under this Act, although the requirements are more cumbersome than religious codes which do not require registration and 30 days notice. People of some religions may also forego rights under their personal law such as inheritance.

What Do They Argue?

The petitioners argue that the exclusion of marriage equality under the Special Marriage Act, 1954 violates the right to choice of a partner (privacy, dignity, expression), right to equality and anti-discrimination, freedom of expression, freedom of association and freedom of conscience. They also argue various connected rights are denied as a consequence and that the Court has the power to declare it unconstitutional.

Right to choice of a partner: The right to dignity, privacy (Article 21) and freedom of expression (Article 19) recognised in cases like Puttaswamy and Navtej imply a constitutional respect for people’s autonomy, identity and choices. This is extended to the right to choose a partner in marriage as laid down in Lata Singh and Shafin Jahan.

Violates the right to equality: There is no rational basis to differentiate between same-sex and opposite sex couples in the context of marriage, since it is not only about the ability to procreate and the purpose of marriage has changed with changing times. Further, social morality is not a legitimate reason as the only morality relevant to the constitution is constitutional morality. There is no connection between this and the aim of the Act which is to register marriages. Therefore, it violates the right to equality and is manifestly arbitrary (Article 14).

Positive obligations for equality and anti-discrimination: The Courts have recognised sexual orientation and gender identity as prohibited grounds of discrimination because they are immutable (in NALSA and Navtej under Article 15). The State has a positive obligation to allow equal freedom of relationships. Irrespective of intention, it is the effect of the law on fundamental rights that matters. The law should lead social change, not just follow it. Similar to police protection for inter-caste and inter-religious relationships, the Court must play a counter-majoritarian role and protect these relationships. Various High Courts have intervened to protect LGBTQ+ couples.

Violates the freedom of expression and association: Denying recognition of marriage results in an inhibition of the expression of marriage and an ability to find a place in the social fabric. This affects well-being and leads to a deterioration of mental health which also amounts to a restriction on speech (Article 19(1)(a)). Marriage is also an intimate association between two people and its denial violates the freedom of association (Article 19(1)(c)).

Violates the freedom of conscience: Marriage is a moral and ethical companionship. Its denial violates the freedom of conscience under Article 25.

Judicial Review and the Court’s power: When there is a violation of equality, it cannot be left to Parliament. The Court has a counter-majoritarian role to play in the protection of rights. Under judicial review, which is part of the basic structure of the Constitution, the Court can read in conditions in an Act to achieve the purpose of the statute and interpret it to save it from unconstitutionality. The Court is also obliged to abide by the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the Yogyakarta Principles.

Denial of Rights Connected to Marriage: Marriage is a bundle of rights and these are denied as a consequence of the exclusion of same-sex couples. This includes: compensation for loss of consortium with a spouse, ability to donate organs to a spouse without objection, to object to transplantation of spouse’s organs, witness spouse’s declaration on organ donation, income tax deductions for various savings/insurance contributions for the spouse, gratuity payments, wages, nomination for EPF, half pension upon the spouse’s death, spousal privilege for evidence, coverage under Central Government Health Scheme, claims for compassionate appointment, family pension and requests for family/same-city posting. Further, private entitlements based on marriage can include club memberships, private health benefits, joint accounts (the petitioners had to open an account under a women’s co-saving scheme), spousal benefits. Despite no legal bar, other process are much harder without marriage, such as proof of residence for a spouse who does not own the property (for example one of the petitioners was recorded as a tenant of the other by the police during passport verification), nominations for mutual funds, savings account, health insurance, etc. They also fear a challenge to their will in the probate process and the inability to take end-of-life decisions in an unfortunate situation.

What Is The Petition’s Journey In Court?

Filed: 8 October 2020. (W.P.(C) 7692/2020)

Notice issued: 14 October 2020.

Lawyers: Represented by Menaka Guruswamy and Arundhati Katju in Court. Team includes Govind Manoharan and Surabhi Dhar.

The Hearings. On 14 October 2020, Menaka Guruswamy brought up the petitions, explained the facts and the claims. The Court said there were no doubts on maintainability and issued notice to both the Union of India and the Government of NCT, Delhi. The lawyer for the Union, Rajeev Yadav said that they should look into Sanatan Dharma before deciding the matter. The Court informed the Union that they should not see the litigation as adversarial.

On 25 February 2021, after the Court disapproved of the Union’s delay in filing a reply previously, the Union of India filed its reply. On this day and on 24 May 2021, the Court adjourned the matter due to the pandemic. Solicitor General Tushar Mehta said there was no urgency, people are not dying. Menaka Guruswamy pointed out that decisions in hospital required marriage.

The petition is available here (Source: Bar & Bench).