A Constitutional Bench of the Supreme Court comprising of the Chief Justice of India; D.Y. Chandrachud and companion justices; Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli and P.S. Narsimha on 11th May 2023 reserved its verdict on the same-sex marriage case. The Bench in the preceding weeks had been hearing a bunch of petitions on marriage equality rights and seeking grant of declaration for same-sex marriage.
Marriage confers not just social acceptance and dignity as a legitimately recognised family unit but also a host of other consequential rights and benefits onto the married persons, be it the convenience of succession and inheritance rights, or the option of adoption into the family unit, or the economic benefits of tax exemptions and insurance premium, or the entitlement to matrimonial reliefs such as divorce and maintenance. By marriage the spouse and any other dependent become entitled to seeking maintenance.
Presently in the absence of recognition, a person cohabiting with their significant other is denied claim to maintenance in case anything goes awry between the two, despite them being in a similar living and co-habitation status as a married couple sans marriage. Thus, status of marriage would effectively give a sense of security to the same-sex couples.
Marriage would also confer automatic inheritance rights on their spouses. Presently, in the case of death of one spouse, the other spouse has no way of automatically inheriting the property except by way of will. Similarly, when it comes to insurance or pension, there are restrictions envisaged where only the wife or children are recognised as opposed to recognition of spouse and dependents, thus, unless the beneficiary policy envisages the latter, the same-sex spouses are excluded from taking benefit of insurance or retirement plans of their significant other.
Rules of compassionate appointment, law regulating transplantation of organs and even income tax recognises only family members and relatives to claim benefit. Adoption is only envisaged either by a married couple or a single person, thus even if one of the spouses in a same-sex marriage adopts a child, under the law the child is not adopted into the family unit but only in respect of that one spouse and is only entitled to that spouse’s inheritance.
The petitioners whilst seeking grant of marriage rights to same-sex couples and members of the LGBTQIA+ community have commonly argued and sought for a limited indulgence of the Supreme Court to the extent of granting and containing the said right to marry through certain declaratory and interpretative reliefs only in respect of the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969. While the Bench during the hearing also expressed its agreement to keep the matter circumspect and limited to the aforesaid acts and not venture into the personal laws, it was time and again during the hearing reminded of the sobering fact that the same might not be possible or feasible, given that the law on marriage is very intrinsically woven with the personal and religious laws.
The court proposed to cull out the right to marriage for same-sex couples through an interpretative exercise of reading into the word ‘persons’ occurring in the Special Marriage Act, 1954 in a gender-neutral manner to mean ‘spouses’ so as to include marriage between any person as opposed to present restrictive meaning and including one between a man and woman only.
However, this proposition of substituting ‘persons’ with ‘spouses’ poses a significant problem in its workability starting right from the Special Marriage Act, 1954 itself and continuing into countless other legislations. The formidability of this workaround stems from the distinct provisions of the various legislations treating man and woman differently; specifically, the significance that has been placed onto the term ‘wife’. In India, under the law a wife has been accorded special rights by virtue of her marriage.
Under the Special Marriage Act, 1954 a wife has additional right to seek divorce on grounds of rape, sodomy or bestiality committed by the husband. The Act has also conferred an exclusive right on the wife alone to seek maintenance / alimony from her husband. In a legally recognised same-sex marriage it is not only difficult but also improper to ascertain on whom these differently oriented provisions would apply to; and as to which spouse would be encompassed within the term ‘wife’ as the same would defeat the purpose of according social acceptance and sense of dignity onto the same-sex couples.
The same continues into the various penal provisions such as the Dowry Prohibition Act, making reference to demand of dowry from the wife, and the special rules of evidence and presumptions under Indian Evidence Act for the benefit of the wife, or the Code of Criminal Procedure that stipulates grant of maintenance only to the wife or the Domestic Violence Act, which has application only for the benefit of a woman.
Adoption would also be another aspect that would require serious re-working, the Juvenile Justice Act that governs adoption prohibits a single man from adopting a girl child, however, no such prohibition exists for a married couple. The applicability of this prohibition on let us say a gay married couple would require deliberation.
A difficulty arises if the specific references to wife or husband under the various legislations are read as spouses only for the same-sex couples, the same would amount to discriminating against the heterosexual persons who would be left-out from its inclusion. If a gender-neutral interpretation would be required in all these laws and in respect of everyone, it amounts to re-writing the legislations, which is a domain falling purely in the hands of the Parliament.
Seeing the sheer amount of reconciling that the court would be required to do it not just in the same-sex marriage case but also in future, the Bench made the observation that even if it decides to grant marriage rights to same-sex couples, it will refrain from determining consequential rights such as adoption, succession and inheritance as these are inseparably linked to religion-based personal laws. However, any refrainment from going into these aspects would eventually render the declaration of same-sex marriage as otiose and deny them the consequential benefits flowing from marriage.
Inheritance and succession to the property are also riddled with few problems that would eventually have to be resolved. Under the Special Marriage Act, if a marriage is between two Hindus, the succession is strictly governed by the Hindu Succession Act, and in case of marriage between non-Hindus (other religions or where only one spouse is Hindu), succession takes place through the Indian Succession Act.
Under the Indian Succession Act, inheritance rights of a female or a male is differentiated only in the use of terminology like a widow or a widower. Otherwise it is same for all persons irrespective of their gender, wherein the surviving spouse gets 1/3rd and 2/3rd devolves on the descendants. Where there are no descendants, the entirety goes to the surviving spouse (except when the kindred are present, wherein it is divided equally).
The same could also be extend under the Hindu Succession Act, but there would eventually be certain problems in specific rules of succession when it comes to pre-deceased children as inheritance is envisaged only for a pre-deceased son’s wife and not for a spouse, not to mention that Hindu Law in itself does not recognise same-sex marriage and the same would be antithetical to the religious sentiments.
At present 34 countries have legalised same-sex marriage. The notable ones are the US, Australia and Sweden where in most of them the courts went to the extent of granting the recognition and the same being reworked into legislation by the legislature. Given the added complexity of the personal laws, the Supreme Court too should dabble only to the extent of declaration of the right to same-sex marriage, leaving the enactment to the wisdom of the legislature as it had also previously done with the right to privacy.