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?
There are 10 petitioners. 4 of them are activists who are part of an informal network known as the National Network for LBI Women and Trans Persons, with members across several cities in India. Besides organising campaigns, they have been approached in multiple crisis situations where LBT persons faced violence from their natal families and local communities in the form of forced marriages, conversion therapy, restriction of education, jobs and movement, threat of disinheritance and even verbal and physical abuse. They have assisted with interventions including the use of violence against women provisions, habeas corpus petitions and appeals to high-ranking police officials. This experience informs them of the importance of legal scaffolding like marriage in helping fight these battles.
Rituparna Borah is a queer feminist activist and co-founder of Nazariya, as well as a member of Voices Against 377. She has assisted a couple, including a trans man, escape violence from his natal family and also provided COVID relief for LGBT people. She belongs to the indigenous Koch community from Assam and identifies as a lesbian woman. Her surviving family members are not accepting of her identity and since she has a potentially disabling condition, she is concerned about who can make medical decisions for her.
Chayanika Shah is a queer woman and activist from Mumbai and formerly a member of PUCL, LABIA, and Forum Against Oppression of Women. She was previously a lecturer with a degree in Physics and now conducts seminars on Gender Studies, Queer Studies and Science Education. She is an author of various books and studies on trans and queer lives and actively works to support LBT people including providing safety and shelter.
Minakshi Sanyal is a queer feminist activist in Kolkata and co-founder of Sappho and Sappho for Equality. She takes sessions on sexual orientation and gender identity for higher education institutions and has conducted research studies on queer lives.
Maya Sharma is a lesbian woman and queer activist form Vadodara. She previously researched the lives of single women in Delhi’s resettlement colonies and was involved with trade unions. She has also written about the lives of queer women and people in Gujarat, and worked on the implementation of the Trans Act.
The other 6 petitioners consist of 3 couples escaping their natal families. The first couple consists of a trans-masculine person and a cisgender woman from a socio-economically marginalised background in Howrah. They have made several attempts to elope since 2019, but were often found out and physically beaten by their families, one of them almost to death. When they managed to escape in 2021 and the State Women’s Commission intervened to ask the police to keep them in protective custody, they were verbally abused and shamed by the police themselves. They have only completed some secondary school education which makes obtaining employment hard. Similarly, religion, class and sexual orientation and gender discrimination make finding housing hard.
The second couple consists of a trans-masculine person and a cisgender woman in Bengal. When discovered, the trans-masculine person was abused and had their education stopped. His partner’s mother filed false complaints of abduction and theft and put up missing posters for her daughter. He was even detained for 3 months. Her mother lured him back with lies and took away her phone and abused her. The woman’s father even threatened to sexually assault her partner. Sappho’s team were threatened by business associates but managed to help them leave. The police initially took the side of the families until Sappho members clarified the rights of the couple. However, the false criminal complaint has still made finding employment hard.
The third couple consists of a cisgender woman and transgender man from Darbhanga, Bihar who have been in love since their schooling years. The man was sheltered by his accepting sister, but eventually he was forced to ‘marry’ a man in 2021. He managed to convince his ‘husband’ to study in another town where he stayed with his actual partner until his ‘husband’ visited and blackmailed his partner for sex. The ‘husband’ and the man’s family confined and assaulted them, even demanding money from the woman’s parents. They forced the man to write a suicide note blaming his partner. The Mahila Police Station helped with filing a divorce for the forced marriage and they managed to stay in a Garima Greh in Patna for a while but had to move out since cisgender people are not permitted in those homes meant for transgender persons.
What Are They Asking For?
The petitioners ask for a reconfiguration of the idea of family. Specifically, they ask for:
- Marriage: to declare that the non-recognition of marriages based on sexual orientation and gender identity under the Special Marriage Act, 1954 (‘SMA’) is unconstitutional. Gender-neutral terms like ‘spouse’ should be used where relevant.
- Pre-existing marriages: To declare that pre-existing marriages where one partner changes their gender identity will remain valid.
- Notice, domicile and objection provisions: to declare ss 5-9 of the SMA, which require couples to provide notice to the Marriage Officer and a 30 day period for the public to object to the propose marriage, as unconstitutional.
- Chosen family: The ability to choose ‘any person’ over just the next of kin for various rights, responsibilities and benefits which are typically restricted to natal families.
- Protection from natal family and community: to take preventive, remedial, protective and punitive measures for the safety and security of LGBT people, including the provision of shelter similar to the Garima Greh scheme.
What Do They Argue?
Focusing on the lived realities of LBT people, the petitioners highlight the opposition and violence faced by them, particularly from natal families. In this context, they use the principles of constitutional morality, anti-stereotyping, substantive equality, indirect discrimination, intersectionality, autonomy, the right to life and liberty and other concepts to build a new framework for queer people. So, they ask not just for the right to marry, but also to do so without undue burden, and to change the law outside marriage to allow legal recognition of chosen families and State protection for queer people.
Marriage
Freedom from violence: Marriage can affect how natal families and the police view LGBTI individuals and couples and change their intolerant behaviour. Such violence has always existed in the past, but criminalisation had hidden the LBTI identities of the victims. There are 11 High Court cases protecting LBT persons from such interference, but this is still limited temporary relief. Marriage can provide the immunity of state sanction and mitigate the broad harms of this violence.
Nature of marriage: Alternatives to marriage like maitri karar are legally ambiguous and do not provide the same benefits. Marriage is not just sexual or romantic but about mutual care and respect. Access to social and economic rights are often defined by ‘family’ and that includes marriage. There have been historic records for decades of attempts to elope or couple suicides, and customs have evolved with recorded lesbian marriages in various parts of India.
Constitutional morality: Constitutional morality must prevail over social morality (Navtej Johar). Constitutional freedoms include the freedom to make an unpopular choice (Joseph Shine) and social approval cannot be the basis for the freedom to choose a partner (Shafin Jahan). So, the Court can adjudicate an issue that involves the protection of fundamental rights for discrete and insular minorities from the disdain of majorities.
Anti-stereotyping principle: Stereotypical morality, on the basis of sex stereotypes, merits strict scrutiny (Anuj Garg). Even if other laws like adoption and inheritance uphold a heterosexual binary, that should not stop the Court from recognising that discrimination based on sexual orientation and gender identity is connected to stereotypes based on sex. LGBTI people with their care and reciprocity challenge the stereotypical gender roles and the sexual hierarchy.
Substantive equality: A strict classification test misses the true value of substantive equality (Navtej). Laws should not perpetuate historic discrimination under the anti-exclusion principle in Article 17 (Indian Young Lawyers Association). In cases of systemic discrimination, courts have a duty to not just strike down discriminatory laws but a positive duty to break stigma, stereotyping, humiliation and violence (Madhu, Lt. Col. Nitisha)
Trans-inclusive interpretation: Non-recogntion of gender identity is unfair exclusion (NALSA) and marriage cannot be limited to biological men and women. The Trans Act’s recognition of self-identified gender identity must be extended to other parts of the law. Trans-inclusive interpretations have already been confirmed under the Hindu Marriage Act (Arunkumar), Medical Termination of Pregnancy Act (X), and the Indian Penal Code (Anamika).
General Principles of Interpretation: The SMA has no religious prescriptions and norms under religious personal laws play no role; only the Constitutional interpretation matters. The SMA should be read with the developments of jurisprudence in 2023, not the jurisprudence at the time of enactment in 1954 (John Vellamattom).
Other arguments: Marriage is part of the freedom of expression and association (Shakti Vahini, Asha Ranjan). Exclusion of LGBTI persons is manifestly arbitrary (Shayara Bano). There is no legitimate state interest under Article 21, or if any, then the detriments outweigh the interest. The Yogyakarta Principles recognised by the Supreme Court (Nisha Priya Bhatia, NALSA, Navtej) include the right to found a family.
Pre-existing Marriages
As long as the two parties do not object, third parties have no right to interfere in existing marriages that may be effected by a legal transition in gender. This would result in discrimination and moral policing. Those solemnised under other personal laws can be registered under the SMA if required. This can be facilitated by the Court which has the power to fill in a gap in the law (Vishakha, Common Cause)
Notice, Domicile and Objection Provisions
Right to life and liberty: The requirement to notify an officer, have the notice open to inspection and affixed in the public where ‘any person’ can object is grossly disproportionate. It allows natal families and society to find out about the marriage and place pressure to cancel the marriage. It is an undue burden on marginalised communities by causing risk to their life and liberty. It embodies the legacy of ‘against the order of nature’ by fostering a culture of intolerance. People have a freedom form insecurity, interference and violence by both the State and non-State actors (NALSA). This law emboldens natal families to infringe fundamental rights and is invalid (RC Cooper).
Intersectionality: The provisions particularly effect those who are economically dependent, face caste discrimination, are in inter-faith relationships or gender and sexual minorities. This shows how the struggle of queer people is part of a history of larger struggles against gender, caste, class, religion and community. This framework of intersectionality aids the analysis (M Sameeha Barveen, Patan Jamal Vali)
Indirect Discrimination: Even ‘facially neutral’ provisions like this can be discriminatory if it has a disproportionate adverse impact on inter-caste, inter-faith and those who do not confirm to norms of gender or sexuality (Madhu, Nitisha). This impact occurs through violence by natal families as well as social, economic, political exclusion and psychological and physical harm.
Due Process: Along with procedural rights, Article 21 guarantees substantive due process that requires the law to be fair, just and reasonable (Mohd. Arif). The current law is disproportionate and has no legitimate state interest, considering that intra-community laws do not have similar provisions. Instead, it creates a presumption of criminality for inter-caste, inter-faith and other non-conforming couples.
Other arguments: The law is void for being too vague and lacking clear guidelines since it allows ‘any person’ to object, which is capable of misuse (Shreya Singhal). The implementation of laws should not mirror systemic discrimination (Devika Biswas). The Law Commission has recommended deleting the provisions.
Chosen Family
Queer Lives Outside Marriage: They seek to question the primacy of marriage in social life and to recognise chosen or atypical families in law. This is not to challenge natal families but make the law more inclusive. Rights like housing, custody, end of life care should be entrusted to chosen families or live-in partners. Violence is not restricted to LGBTI+ couples but individuals as well, subjecting them to conversion therapy, forced marriage, opposition, denial of identity, surveillance and violence form the natal family. So, LGBT people have unique ways to share care and responsibility and pool financial resources. This should allow people to nominate ‘any person’ especially to exclude potentially intolerant natal families to look after their best interest and security.
Unshackling Rights from Marriage: Currently, Advance Directives for the terminally ill and legal guardians for the medically incapacitated is restricted to ‘guardians, close relatives or family members’. For LGBT people, they may either not know their wishes or actively dishonour them. Other rights and responsibilities connected to marriage include estate planning, housing, transfer of property, employment-based benefits, guardianship of children, access to ART, etc.
Equality and Autonomy: This relies on an understanding of equality that accommodates difference rather than demands conformity (Francis Coralie Mullin). Autonomy is linked to the right to dignity and the right to make intimate choices (Puttaswamy).
Existing Legal Recognition: Atypical families such as those with single parents, domestic and unmarried partners and queer relationships are common (Deepika Singh). In X, the Court recognised that marriage should not be a precondition to rights and autonomy. The guru-chella parampara among some transgender communities has been recognised for the purpose of devolution of property (Ilyas, Sweety). s 14 of the Mental Healthcare Act 2016 allows ‘any person’ to be nominated for the care of those with mental incapacity and this approach can be extended to other fields.
Freedom from Interference, Opposition and Violence
Irrespective of relationship status or marriage queer people still face various kinds of opposition. This is because of the same notion of family honour that opposes inter-caste and inter-faith couples. Any ill-treatment in the name of honour is illegal and governments must take measures against it (Shakti Vahini). A failure to do so would infringe their Article 21 right to life and liberty. High Courts which protect LGBTI couples have recognised this. Such measures can include the establishment of safe houses for all similar to the Garima Greh scheme as recommended in S Sushma.
Lawyers: Represented by Vrinda Grover in Court. Team includes Suraj Sanap, Soutik Banerjee, Devika Tulsiani and Mannat Tipnis.
The petition is available on file (Courtesy of Akhilesh Godi).
Mihir Rajamane 
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