A Case for LGBT Marriage vis-a-vis Special Marriages Act and the Fundamental Rights

involves violation of the spirit of the Constitution by the State can be held as maintainable before
the court of Law.

interpretation of Section 4(c) of the Special Marriage Actas a restrictive provision in a manner
whichdenies the possibility of solemnization of marriage between two persons belonging to the
same-gender serves in its effect to be unconstitutional, arbitrary and discriminatory.

case of Maneka Gandhi v. Union of India2 , in which this Hon’ble court has widened the ambit of the
fundamental rights to include issues of global human rights jurisprudence.

3. A Marriage officer is elected by the state government and such officers are public servants3 and
therefore are representative of the state under Article 12 of the Constitution 4 . It is contended that
the marriage officer falls under the purview of the term ‘authorities’ as laid down in the article. The
term means a person or body exercising power or having a legal right to command and be obeyed.5
An ‘Authority’ is a group of persons with official responsibility for a particular area of activity and
having a moral or legal right or ability to control others.6 Marriage officers are appointed by the
State Government7 and enjoy such powers and undertake similar responsibilities pursuant to the
provisions of the Special Marriage Act.

limited interpretation of Section 4(c) involves the denial of fundamental rights of the LGBT
community which forms about 15-20% of the population and thus affects the general public interest.
5. In the present petition, it is submitted that the petitioners have a right to approach the court as
[A.]the limited interpretation of Section 4(c) by the Marriage Officer restricting the solemnization of
same sex marriages is violative of the Fundamental Rig6. It is humbly submitted that the court is the
guardian of the constitutional rights8 and the right to approach this Hon’ble Court in the case of
violation or a threat to fundamental rights is itself a fundamental right enshrined in Article 32 9 of
the Constitution and is not merely a discretionary power of the Court.10 It is an absolute right.11 7.
This court in Fertilizer Corporation Kamgar Union v. Union of India12, among many other cases13
has held that the jurisdiction conferred on the Supreme court by Article 32 is an integral part of the
basic structure of the constitution and any instance in which a fundamental right is transgressed
upon, the aggrieved party has the right to approach this court for justice. 8. In the present matter
before this court, the limited interpretation of Section 4(c) of the Special Marriage Act to exclude
members of the LGBT community from its applicability violates their fundamental rights guaranteed
under Articles 14, 15, 19 and 21 of the Constitution of India. 9. The act of refusal by the marriage
officer to solemnize marriage between two consenting individuals of the same gender i.e. petitioners
2 and 3based on a limited interpretation of Section 4(c) is directly violative of their fundamental
rights. 10. Therefore, it is submitted that as this Hon’ble Court is the guarantor and protector of
these fundamental rights 14 , petitioners 2 and 3 have a right to approach it to safeguard their
CONTENTION 2: SECTION 4(c) OF THE SPECIAL MARRIAGE ACT MUST BE INTERPRETED TO INCLUDE
SAME-SEX MARRIAGES WITHIN ITS AMBIT 15. It is contended before this Hon’ble court that Section
4 of the Special Marriages Act must be interpreted liberally in a manner that wouldallow the
marriage of two consenting persons of the same gender to solemnize legally under the act. 16.
Section 4(c) provides one of the conditions necessary for solemnization of marriage under the
Special Marriage Act, 1954 thus: “...the male has completed the age of twenty-one years and the
female the age of eighteen years.”
It is contended that this provision can be reasonably interpreted in a manner that allows the
solemnization of marriage between people belonging to the same gender(two consenting males who
have completed the age of twenty-one years, or two consenting females who have completed the
age of eighteen years) provided they fulfil other conditions thereto, as the act does not expressly
necessitate the existence of a heterosexual couple consisting of a male and a female to constitute a
legally recognizable marriage. 18. Relevance may be placed on Section 4 of the act that reads: “…, a
marriage between any two persons may be solemnized under this Act, if at the time of the marriage
the following conditions are fulfilled…”

It is contended that Section 4 of the act through the use of the expression ‘any two persons’ makes it
clear that any two individuals irrespective of their gender can marry each other so long as the other
conditions as to consent, sanity etc. are fulfilled, primarily becausethe word ‘person’ includes
individuals belonging to both the biological genders, in the present context. 20. Relevance maybe
placed in this regard, on the interpretation of the expression ‘person’ as provided in the Indian Penal
Code, 1856 as well as the Constitution of India by this Hon’ble Court. The expression ‘person’ in the
IPC has been interpreted by this Hon’ble court to include any person whether male or female in a
number of cases.