Same-sex marriage: SC observes public notice in Special Marriage Act is patriarchal, invasion of privacy

The Supreme Court on Day 3 of hearing the case on legal recognition of same-sex marriage, discussed various sections of the Special Marriage Act 1954, which require parties to give advance notice of 30 days at the Registrar's office inviting public objections.

Petitioners have challenged these provisions as violative of fundamental rights to privacy and argued that the notice exposed couples who enter into non-traditional marriages to threats and violence from families and vigilante groups.

The bench comprising DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha are hearing a batch of petitions arguing for Constitutional recognition of same-sex marriage. The Centre has opposed it on the grounds that it is an urban elitist concept and only Parliament should make laws.

Senior Advocate Dr Abhishek Manu Singhvi, underscored that couples opting to get married under the Hindu Marriage Act or personal laws are not mandated to give advance notice to the public. "Which married couple in the heterosexual world has to announce first to the world that we intend to marry? Why should I? It's my personal decisional autonomy. It's the heart of my privacy to decide with whom I associate when, how, after how much time into matrimonial union- be it of the same sex or the opposite sex", he argued. He was appearing in the writ petition filed by Utkarsh Saxena and Ananya Kotia.

During the hearing, Singhvi pointed out that an issue would rise if the words ‘male’ and ‘female’ were to be replaced by the term ‘person’ in the Special Marriage Act, because the Act states that the minimum age of marriage as 18 for women and 21 for men. However, he suggested that they could apply the law based on the gender the person professes.

The Supreme Court observed that the Special Marriage Act was enacted when women did not have agency and the public notice inviting objections to an intended marriage is patriarchal and enables invasion of privacy. The bench observed it while specifically discussed Sections 5, 6 and 7 of the Special Marriage Act which require marriage officers to display the said public notice. The notice includes the couple's names, phone numbers, date of birth, age, occupation, addresses and other information regarding their identities.

While agreeing with the bench, Singhvi asserted that it should be struck down, since the same was completely disproportionate, discriminatory and violative of the right to privacy.

During the hearing, senior advocate Raju Ramachandran said that if the right to marry is read into Article 21 (protection of life and personal liberty), such notices cannot stand. It should be struck down for being 'obnoxious' and 'retrograde', he reiterated.

The CJI observed that if the intent was only to curb void marriages, then it could be the least restrictive method. However, he added that there was a real likelihood that this section would disproportionately

impact if one member is from a marginalised or minority community and thus impacted one of the most vulnerable sections of our society.

“We have to be careful that we don’t empower these officers to possess personal and private information of these individuals but we have to see that they are protected," added Chandrachud.

During the hearing the apex court asked if the relationship between a man and a woman was so fundamental to the law that including the relationship between same-sex couples in marriage laws by the court would be taking on the capacity of the legislature. The bench asserted that by decriminalising homosexuality, it had hoped that homosexual couples would be in stable, ‘marriage-like’ relationships.

On Day 2 of the hearing, senior advocate Mukul Rohatgi submitted that the words ‘husband’ or ‘wife’ must be changed to ‘spouse’, and the words ‘man’ and ‘woman’ must be changed to ‘person’ in the Special Marriages Act to make the law gender-neutral.

He pointed towards the Income-tax Act, 1961, which stated that a gift between spouses is exempted from income tax. He referred to the Section 57 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which presupposes adoptive parents as those who are married. 

He contended that “secular” Acts where the issue of personal laws does not arise might be given an effect to allow declaration of marriage to give the petitioners their rights.

On Day 1 of the hearing, the Court decided to limit the scope of the case to develop the notion of a civil union which finds recognition within the Special Marriage Act. While hearing the petitioners, the bench decided that it would not touch the Hindu Marriage Act or any personal laws and instead focus on the maintainability of including same-sex unions under the Special Marriage Act.

Arguing for the petitioners, senior advocate Mukul Rohatgi said that people are in same-sex relations have the same rights under the Constitution as the heterosexual group of people. The court had removed the Section 377, which was a stumbling block on our equal rights.

He pointed out that the petitioners wanted a declaration that they had a right to marry, and that right would be recognised by the State and could be registered under the Special Marriage Act (SMA). A marriage under the Special Marriage Act, 1954, uses the term ‘spouse’ within its definition. Section 4 of the SMA states that at the time of marriage, “neither party has a spouse living”.