Counter-Affidavit Explained: Union of India Opposing Marriage Equality

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

What is the Document and What Does it Respond to?

A counter-affidavit is a document filed by someone in response to a petition. Various petitions have been filed challenging the exclusion of people on the basis of sexual orientation or gender identity form getting their marriages registered. The petitions argue that this is unconstitutional and should be corrected. The counter-affidavit argues that this is legitimate and constitutional. The counter-affidavit is explicitly in response to the petition by Abhijit Iyer-Mitra challenging the exclusion under the Hindu Marriage Act, 1955. However, Solicitor General Tushar Mehta said the same arguments will be adopted against 3 other petitions: the one by Vaibhav Jain challenging the exclusion under the Foreign Marriage Act, 1969; the one by Kavita Arora challenging the exclusion under the Special Marriage Act, 1954 and the one by Udit Sood also challenging exclusion under the Special Marriage Act.

There are 4 more connected petitions for which it is not clear whether the present counter-affidavit applies or whether a different one does. These are: the one by Joydeep Sengupta challenging the exclusion under the Foreign Marriage Act and recognition as a spouse under the Citizenship Act 1955; the one by Melissa Ferrier also challenging the exclusion under the Foreign Marriage Act and recognition as a spouse under the Citizenship Act; the one by Nibedita Datta and the one by Zainab Patel seeking a declaration that marriage laws are read neutrally with respect to gender identity and sexual orientation.

What Does the Union Argue?

The Union of India has argued that marriage has a fixed meaning and there is a legitimate state interest in protecting this idea of marriage. Further, they argue that the current law cannot be reinterpreted law and to change it would contravene a large number of laws. So, only the legislature can make such an amendment. On other points, they claim it is procedure established by law and therefore satisfies Article 21, that personal law is protected under Article 25 and that Navtej or Western precedents do not apply to the present case.

Existing Law Cannot be Reinterpreted: Various aspects of the current laws recognising marriages make it clear that marriage is between a biological man and woman. Definitions of degrees of prohibited relationships, conditions of marriage, restitution of conjugal rights, judicial separation, divorce, alimony & maintenance, adoption and guardianship are all premised on this definition of marriage. Sections 3, 5, 7, 8, 9, 12, 13, 17, 18, 19, 24, 25, 27 of the Hindu Marriage Act; sections 2(b), 3, 12, 15, 22, 23, 27, 31, 36, 37 of the Special Marriage Act, and even Rules such as the UP Hindu Marriage (Registration) Rules, 1973 contain gendered language. It cannot be read as including queer marriages. The General Clauses Act, 1897, which allows ‘masculine’ words to include the ‘feminine’ would not apply. If it did, the statutes would become unworkable and it would rewrite the legislative intent. Further, Article 21 rights can curtailed by ‘procedure established by law’. Since the laws mandate opposite-sex marriage, these rights are legitmately curtailed.

Large Statutory Framework Would be Upset: Various other laws rely on the concept of marriage between opposite-sex couples. This includes the crimes of cruelty, intercourse during separation, detaining a married woman and dowry death; presumptions of evidence in cases of abetment of suicide and dowry death; the Dowry Prohibition Act, 1961; the Domestic Violence Act, 2005; maintenance under the CrPC and personal law such as the Muslim Personal Law (Shariat) Act, 1937 and the Muslim Women (Protecting Rights of Divorce) Act, 1986. The Court cannot override the legislative intent apparent in this large statutory framework. This was supported by the interpretation of the Domestic Violence Act, 2005 in Indra Sarma v VKV Sarma. Changing this would cause ‘complete havoc’.

The nature of marriage: The Union argues the legal recognition of queer marriages is not compatible with the idea of the Indian family which is a biological man and woman and children born out of the union. They also rely on the definition of marriage in Black’s Law Dictionary (an unknown edition between the 3rd and 7th), an American legal dictionary. The Union argues marriage has public significance as humanity is expressed through our relationships- it provides security, support and companionship. It also plays a role in the rearing of children, with the aim of their mental and psychological upbringing in the most ‘natural’ way possible.

Legislature and the Courts: Marriage is defined either by personal law, codified law or custom. This can only be changed by the legislature on the basis of cultural ethos, social standards and acceptable human behaviour. The Court’s role is to analyse existing rights, not create new ones.

Legitimate State Interest: The large framework of laws and marriage indicates a legitimate state interest. In X v. Hospital Z, the Court recognised the right to privacy can be subject to morals, among other things. In Javed v State of Haryana, the interest of controlling population was recognised as an aim to be balanced with the Article 21 right to dignity, liberty and privacy. Similarly, in the present case, ‘acceptance by society’ and ‘cultural and societal values’ are legitimate state interests to be balanced with the rights claimed by the petitioners. To support this, the Union cites M/s Jit Ram Shiv Kumar on the Court’s deference to the legislature on moral questions and Devans Modern Breweries on public health and morals.

Navtej does not apply: Relying on a paragraph in Navtej that states unions in the judgment does not mean marriage, the Government argues it does not apply to same-sex marriages. The judgment ‘decriminalised certain behaviour… it did not intend to, or in fact, legitimise the human conduct in question’. The remarks on privacy are in the personal, private domain, not on public rights like marriage.

Personal Law is Protected: Relying on Shayara Bano, the Union argues that personal laws are protected under Article 25 and cannot be amended by the Court.

Western Precedents do Not Apply: Relying on Nathella Sampathu Chetty and Santokh Singh, the Union argued that relying on Western case law without an ‘Indian basis’ was not permissible.

What Is The Affidavit’s Journey In Court?

Filed: 25 February 2021.

Lawyers: Represented by Solicitor General Tushar Mehta and Kirtiman Singh in Court. Team includes Waize Ali Noor, Kunjala Bhardwaj, Madhav Bajaj, Yash Upadhyay.

The Hearings. The first petition was filed on 10 September 2020 and two more on 8 October 2020. Notice was issued on 14 October 2020.

On 25 February 2021, after the Court disapproved of the Union’s delay in filing a reply previously, the Union of India filed its counter-affidavit in reply. The Union clarified that it adopted the same counter-affidavit for 4 petitions filed by (among others): Abhijit Iyer-Mitra, Kavita Arora, Vaibhav Jain and Udit Sood.

On 9 April 2021, the lawyers representing Udit Sood filed a rejoinder (response) to the affidavit. On 13 April , the lawyers representing Vaibhav Jain and Kavita Arora filed another common rejoinder to the affidavit.

On 14 May 2022, the Union was asked to clarify whether it adopted the same affidavit for the other petitions. It is not clear whether they have done so.

The affidavit is on file (Sources: Bar & Bench, LiveLaw).