SSL MULTI MOOT COURT COMPETITION - FEB’19 BEFORE THE HONOURABLE SUPREME COURT OF INDIA Writ Petition (Criminal) No__/2018 Section 377 Under the Indian Penal Code, 1860, Article 21 & 19 (1) (a) Under the Constitution of India, 1952 & Writ Petition Under Article 32 of the Constitution of India, 1952 In the matter of: Rainbow ws (Petitioners) Union of India (Respondents) UPON SUBMISSION TO THE HONORABLE CHIEF JUSTICE AND HIS. COMPANION JUSTICES OF THE HONORABLE SUPREME COURT OF INDIA MEMORANDUM ON BEHALF OF PETITIONERSSL MULTI MOOT COURT COMPETITION - FEB’19 TABLE OF CONTENTS TABLE OF CONTENTS. LIST OFABBREVIATIONS..sossosssssutsnssntniennnnnennennnennsnnaiensnnnnnaienniise INDEX OFAUTHORITIES. STATEMENT OF JURISDICTION. STATEMENT OF FACTS ..rcnsose ISSUES PRESENTED.. SUMMARY OF ARGUMENTS. ARGUMENTS ADVANCED. ISSUE i: WHETHER THE SAID WRIT PETITION FILED BY THE RAINBOW (NGO) IS MAINTAIABLE BEFORE THIS HON’BLE COURT? ISSUE 2: THERE EXSISTS A VIOLATION OF SAME SEX MARRIAGE AND GENDER EQUALITY IRRESPECTIVE OF DECRIMINALIZATION OF SEC. 377 OF IPC. ISSUE 3: WHETHER LAWS RELATING TO THE INSTITUTION OF MARRIAGE NEED TO BE AMENDED? PRAYER. MEMORANDUM ON BEHALF OF PETITIONERSSL MULTI MOOT COURT COMPETITION - FEB’19 LIST OF ABBREVIATIONS All India Reporters Article Edition Honorable Others Supreme Court Supreme Court Cases Senior And Union of India Versus MEMORANDUM ON BEHALF OF PETITIONERSSL MULTI MOOT COURT COMPETITION - FEB’19 INDEX OF AUTHORITIES CASES Suresh Kumar Koushal & Anr vs Naz Foundation & Ors, Civil Appeal No.10972 of 2013 Navtej Singh Johar vs Union Of India Ministry Of Law, Writ Petition (Criminal) No. 76 of 2016 Nimeshbhai Bharatbhai Desai vs State Of Gujarat, R/CR.MAJ269S7/2017 Naz Foundation vs Government Of Net Of Dethi, WP(C) No.7455/2001 Justice K.S. Puttuswamy vs Union of India, Writ Petition (Civil) No. 494 of 2012 Joseph Shine vs Union of India, Writ Petition (Criminal) No. 194 of 2016 Moonshee Buzloor Ruheem v. Shuumsoonissa Begum, Moo Ind App $51 (609) Bipin Chander Vs Prabhavati, AIR 1957 SC 176 : 1956 SCR 838 Fazal Rab Choudhary v. State of Bihar, AIR. 1983 SC 323, 1983 CriLJ 632, 1982 (1) SCALE 803, (1982) 3 SCC 9 Jagmohan Singh v. State of UP, 1973 ATR 947, 1973 SCR (2) S41 State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and others, Appeal (civil) 4937- 4940 of 1998, Kesavananda Bharati v. Union of India, (1973) 4 SCC Sakshi v. Union of India and others, ATR 2004 SC 3566, 2004 (2) ALD Cri 504 K.A, Abbas v. Union of India and another, 1971 AIR 481, 1971 SCR (2) 446 Rt. Rev. Mogr. Mark Netto v. State of Kerala and other, 1979 AIR $3, 1979 SCR (1) 609. Obergefell, et al. v. Hodges, Director, Ohio Department of Health, et al, 135 S. Ct 2584; 192 L. Ed. 2d 609 MEMORANDUM ON BEHALF OF PETITIONERSSL MULTI MOOT COURT COMPETITION - FEB’19 R (Shanker) v GMC, 1962 AIR 78, 1962 SCR (2) 720 Savitaben Somabhai Bhativa v State of Gujarat and Others, Appeal (crl.) 399 of 2005 Mohd Almed Khan v Shah Bano Begum and others, 1985 (1) SCALE 767, 1985 (3) SCR 844, 1985 (2) SCC 556, AIR 1985 SC 945 Chaturbhuj v Sita Bai, Appeal (crl.) 1627 of 2007 Nanak Cliand V. Chandra Kishore, ATR 1970 SC, 446, Munabai V. Anant Rao, AIR 1988 SC 644. Bhagwan Dutt V. Kamal Devi, AIR 1975 SC 85. BOOKS, TREATISES&DIGESTS D.D. BASU, COMMENTRY ON THE CONSTITUTION OF INDIA, WADHWA, INDIA, 2007, 8™ EDITION, VOLUME I AND IL D.D. BASU, CONSTITUTION OF INDIA, LEXIS NEXIS, INDIA, 2009, 8™ EDITION D.D. BASU, SHORTER CONSTITUTION OF INDIA, LEXIS NEXIS, INDIA, 2009, 14™ EDITION HM. SEERVAI, CONSTITUTION LAW OF INDIA, UNIVERSAL PUBLICATIONS, INDIA, 2004, 47 EDITION, L,I AND IIL V.N. SHUKLA, CONSTITUTION LAW OF INDIA, EASTERN BOOK COMPANY. INDIA. 2008. 117 EDITION M.P. JAIN, INDIA CONSTITUTIONAL LAW, LEXIS NEXIS, INDIA, 6™ EDITION P.M. BAKSHI, THE CONSTITUTION OF INDIA, UNIVERSAL LAW PUBLISHING COMPANY, INDIA, 2011, 11™ EDITION DRJ.N.PANDEY, THE CONSTITUTIONAL LAW OF INDIA, CENTRAL LAW AGENCY, INDIA, 2012, 49" EDITION RATANLAL & DHIRAJLAL, REVISED BY JUSTICE K.T. THOMAS & M.A. RASHID .THE INDIAN PENAL CODE, 34TH EDITION, REPRINT AUGUST 2015. K.D.GAUR, WITH A FOREWORD BY JUSTICE P.V. REDDI, COMMENTARY ON THE INDIAN PENAL CODE, 34TH EDITION, 2015, MEMORANDUM ON BEHALF OF PETITIONERSSL MULTI MOOT COURT COMPETITION - FEB’19 WEBSITES www Jexisnexisacademic.com \www.manupatra.com www legalindia.com www.indlaw.com www.constitution.org www.planningcommission.nic.in MEMORANDUM ON BEHALF OF PETITIONERSSL MULTI MOOT COURT COMPETITION - FEB’19 STATEMENT OF JURISDICTION THE PETITIONERS HAVE APPROACHED THIS HON’BLE SUPREME COURT OF INDIA UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, THE PETITIONERS HUMBLY SUBMIT THIS JURISDICTION. MEMORANDUM ON BEHALF OF PETITIONERSSL MULTI MOOT COURT COMPETITION - FEB’19 STATEMNET OF FACTS Mr. X and Mr. Y are citizens of India. Both had gone to Ireland to pursue higher education and subsequently started working in Ireland. They were already into a relationship and eventually got married according to the Irish Laws during their stay. They were in marital relationship for two years and were residing in Ireland. On 15“ September 2017 they relocated to India. They both started staying in a apartment in Bandra, Mumbai. th , On 10" September 2018, Mr. X left the apartment and went on to stay separately without informing Mr. Y. Despite several attempts of contact from Y, Mr. X did not respond. With no other option left Mr. Y tried filing a case but was not allowed to do it Aggrieved by this Mr. Y approached an NGO named RAINBOW who works and fights for the rights of LGBTQI (Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex] section of society in India Rainbow after consultation with their panel of legal experts who through their research on the recent landmark Judgment dated 62 Sep, 2018 on decriminalization of sec.377 of Indian Penal Code, where the Supreme Court found that Section 377 violates the right of members of the LGBTQI community to dignity, identity, and privacy, all covered under Article 21 & 19 (1) (a). Due to plethora of issues related with recognition of same sex marriage like Domestic Violence, Cruelty, and Maintenance, Raging modesty. RAINBOW filed a writ Petition against Union of India in the Hon. Supreme Court seeking the recognition & Validity of same sex marriage & gender Equality MEMORANDUM ON BEHALF OF PETITIONERSSL MULTI MOOT COURT COMPETITION - FEB’19 ISSUES I. WHETHER THE SAID WRIT PETITION FILED BY THE RAINBOW (NGO) IS MAINTAIABLE BEFORE THIS HON’BLE COURT? Il. THERE EXSISTS A VIOLATION OF SAME SEX MARRIAGE AND GENDER EQUALITY IRRESPECTIVE OF DECRIMINALIZATION OF SEC. 377 OF IPC. 1. WHETHER LAWS RELATING TO THE INSTITUTION OF MARRIAGE NEED TO BE AMENDED? MEMORANDUM ON BEHALF OF PETITIONERSSL MULTI MOOT COURT COMPETITION - FEB’19 SUMMARY OF ARGUMENTS WHETHER THE SAID WRIT PETITION FILED BY THE RAINBOW (NGO) IS MAINTAIABLE BEFORE THIS HON’BLE COURT? It is humbly submitted by the petitioner before this Hon'ble court that disallowing Mr. Y to file a case is against the law of the land since the petitioner has the required /ocus standi before The Hon'ble Supreme court to file the instant petition being a Nongovemmental Organisation. Since there is an involvement of various fimdamental settled principles like individual dignity and decisional autonomy inherent in the personality ofa person, a great discomfort to gender identity, destruction of the right to privacy which is a pivotal facet of Article 21 of the Constitution and right to form associations enshrined in Article 19(1)(a) of the Constitution. This writ petition challenging the constitutional validity and recognition of same sex marriage based on gender equality, is found to have a settled position in law to be maintainable based on the Fundamental Rights violation and the Matter of National Importance. Il. THERE EXSISTS A VIOLATION OF SAME SEX MARRIAGE AND GENDER EQUALITY IRRESPECTIVE OF DECRIMINALIZATION OF SEC. 377 OF IPC. It is humbly submitted before this Hon'ble court that the instant petition suffers from the vice of unreasonable classification and is arbitrary in the way it unfairly targets the homosexuals or gay community thus inftinging their right wader article 14. It also unreasonably and unjustly inftinges upon the right of privacy which is sine qua non to article 21. The expanded scope and ambit of the right to life and personal liberty enshrined in Article 21 sowed the seed for future development of the law enlarging this most fundamental of the fundamental rights. Thus, different sexual expressions or orientations automatically come within the ambit of expanded right to life and personal liberty I. WHETHER LAWS RELATING TO THE INSTITUTION OF MARRIAGE NEED TO BE AMENDED? It is submitted on behalf of the petitioners that In India, citizens have a choice to be married under their various personal laws, or a common law of civil marriage. While none of the acts have explicitly defined marriage as a union between a man and a woman, it has been interpreted and understood to mean that a marriage is always between a man and a woman. Words like ‘bride and bridegroom’, ‘husband and wife’ imply that the laws are valid only for couples of the opposite sex. The LGBTQ as a citizen of India, have all Rights to Marry, to claim maintenance and a right to adopt. MEMORANDUM ON BEHALF OF PETITIONERSSL MULTI MOOT COURT COMPETITION - FEB’19 ARGUMENTS ADVANCED 1 WHETHER THE SAID WRIT PETITION FILED BY THE RAINBOW (NGO) IS MAINTAIABLE BEFORE THIS HON’BLE COURT? ‘The petitioners humbly submit that the instant Case is maintainable under Article 32 of the Indian constitution. This argument is fivefold. Firstly the petitioners have a bona fide interest and hence they have a Jocus standi, Secondly, the fundamental rights of the citizens have been violated. ‘Thirdly, the cases that impose a rule of exhaustion of local remedies are not binding upon this Court. Fourthly, there is a constitutional obligation on this Court to protect fundamental rights. In any case, the altemative remedies are nor equally efficacious. Fifth, the violation of settled principles of law. 1,1The petitioners have the required locus standi Locus standi is the right ofa party to appear and be heard on the question before any tribunal. Tt means the legal capacity to invoke the jurisdiction of the court. The SC has ruled that to exercise its jurisdiction under article 32, itis not necessary that the affected persons should personally approach the court. The court can itself take cognizance of the matter and proceed suo motu or on a petition of may public spirited individual body. In landmark cases?, the SC evolved a new rule vis., any member of the public, acting bona fide and having sudficient interest can maintain an action for redressal of public wrong or public injury. In S. P. Gupta v. UOT, the court observed that, “any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provisions of the constitution” However the member of the public should not be a mere busybody or a meddlesome interloper but one who has sufficient interest in the proceedings. In the instant matter, the petitioners ie. RAINBOW is a Non-governmental Organization which works exclusively for the rights of LGBTQ people, They have sufficient interest and are concemed about the rights and livelihood of LGBTQ people, Furthermore, even if the petitioner in fact moved to the court in private interest and for the redressal of his personal grievances, or to seek his personal revenge, court can proceed to enquire the state of affairs of the subject of the litigation in the interest of justice and in furtherance of justice’ If the court finds the question raised to be of substantial public interest, the issue of locus standi MEMORANDUM ON BEHALF OF PETITIONER‘SSL MULTI MOOT COURT COMPETITION - FEB'19 of the person placing the relevant facts and materials before the court becomes irrelevant’ Therefore, locus standi of the petitioners should not be in question. 1.2 Violation of Fundamental Right * Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.” Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of Fundamental Rights guaranteed by Articles 14, 15 and 21 of the Constitution. The sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15 Article 15 prevents the State from discriminating against any citizen only on the grounds of sex. religion, race, caste, or place of birth. This provision was previously interpreted to mean that discrimination, which is not only on the grounds mentioned above, is permitted. It is argued with astuteness that Section 377 has a chilling effect on Article 19(1)(a) of the Constitution which protects the fundamental right of freedom of expression including that of LGBT persons to express their sexual identity and orientation, through speech, choice of romantic/sexual partner, expression of romantic/sexual desire, acknowledgment of relationships ot any other means and that Section 377 constitutes an unreasonable exception and is thereby not covered under Article 19(2) of the Constitution. To buttress the said stance, reliance is placed upon the decision in S. Khushboo y. Kanniammal and another wherein it has been held that law should not be used in such a manner that it has a chilling effect on the freedom of speech and expression, Since there are violation of fundamental rights ie Article 14, 15, 19, 21 which is the soul of our constitution, the instant potion is maintainable before this Hon'ble court. 1.3 There is no requirement for the petitioner to exhaust local remedies 1.3.1.1 The right under article 32 is not subject to the exhaustion of local remedies The right to approach this Hon'ble court in case of violation of fundamental rights is itself a fundamental right enshrined in article 32. In Prem chand garg , it was held that this Right is absolute and may not be impaired on any ground’. Further unlike in article 226, the remedy provided by article 32 is a fundamental right and not merely the discretionary power of the court’, Moreover this Hon’ble court has on multiple occasions expressly rejected an argument that called for exhaustion of local remedies®. Therefore it is submitted that it is not open to this cout to carve out exceptions when there are none in the text, Furthermore judicial orders are MEMORANDUM ON BEHALF OF PETITIONERSSL MULTI MOOT COURT COMPETITION - FEB'19 not amenable to writ jurisdictions under article 32'°. Consequently, of a violation of Article 32 takes place by this Court’s rejection of the instant petition, the petitioners will have absolutely no remedy for such violation of their fundamental rights. Hence, the petitioner submit that a liberal approach should be adopted erring on the side of caution, in cases where the courts rejects a petition under Article 3 1.3.2 The rule of exhaustion of local remedies is not binding on this Hon’ble Court Admittedly, cases such as Paul Manickaam,!! Kanubhai!? and P.N. Kumar!3 require the exhaustion of local remedies before approaching the court under Article 32 4 However, itis Firstly, this self-imposed restraint is merely a rule of convenience and discretion!4 and does not oust the jurisdiction of this court under article 32!5 Secondly, these cases are per incuriam as they were rendered in ignorance of previous decisions by the higher benches of this Hon’ble court that expressly rejected such rule. Finall Article 32 (4) specifically provides that this right may not be suspended except by a constitutional provision!® A rile of self imposed restraint by the judiciary that requires exhaustion of local remedies constitutes an extra-constitutional partial suspension and is thereof unconstitutional 13.3. This Hon’ble court has a constitutional duty to entertain the instant petition The constitutional obligation of this Hon'ble court as the guarantor of fundamental rights has been interpreted broadly" and as one that exists independent of any other remedy that may be available”. This is particularly true in cases of grave public importance, such as the rights of LGBTQ People where relief may not be denied on mere technical grounds. Consequently, it is submitted that a refusal to entertain the instant petition would be inconsistent with the aforesaid obligation.” 1.4 Violations of settled principles of law * Article 15 prevents the State from discriminating against any citizen only on the grounds of sex, religion, race, caste, or place of birth. This provision was previously interpreted to mean that discrimination, which is not only on the grounds mentioned above, is permitted. In the Navtej Johar Case, the Supreme Court moved away from this narrow view and held that any ground of discrimination, whether direct or indirect, which is founded on a particular understanding of the role of itutes discrimination under Article1S. This way, the Supreme Court expanded the prohibited grounds of discrimination under Article 15 to include sexual orientation, and, therefore, Section 377 was held to be discriminatory under Article 15. The LGBTQ people cannot get lawfully married nor can claim for the same since there are no laws pertaining to the same. To bolster the said argument, reliance has been placed upon Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others"! and Common Cause (A Registered MEMORANDUM ON BEHALF OF PETITIONER‘SSL MULTI MOOT COURT COMPETITION - FEB'19 Society) v. Union of India and another wherein it was held that the right to life and liberty, as envisaged under Article 21, is meaningless unless it encompasses within its sphere individual dignity and right to dignity includes the right to carry such functions and activities as would constitute the meaningful expression of the human self. The petitioners have also relied upon the view in KS. Puttaswamy and another v. Union of India and others to advance their argument that sexual orientation is also an essential attribute of privacy. Therefore, protection of both sexual orientation and right to privacy of an individual is extremely important, for without the enjoyment of these basic and fundamental rights, individual identity may lose significance, a sense of trepidation may take over and their existence would be reduced to mere survival. It is further urged that sexual orientation and privacy lie at the core of the fundamental rights which are guaranteed under Articles 14, 19 and 21 of the Constitution and in the light of the decision in Puttaswamy (supra), it has become imperative that Section 377 be struck down. It is contended that the right to privacy has to take within its ambit and sweep the right of every individual, including LGBTs, to make decisions as per their choice without the fear that they may be subjected to humiliation or shunned by the society merely because of a certain choice or manner of living, Considering the above arguments the petitioners contend that disallowing Mr. Y to file a case is not only against the law but also the violation of fundamental rights since it carries the issue of national importance. Il. THERE EXSISTS A VIOLATION OF SAME SEX MARRIAGE AND GENDER EQUALITY IRRESPECTIVE OF DECRIMINALIZATION OF SEC. 377 OF IPC. Gender Identity and Sexual orientation Article 15 was described by the Court as a particular application of the general right to equality under Article 14 in The Naz foundation case*. The Court considered the petitioner’s argument that the reference to *sex” in Article 15 should be interpreted as including sexual orientation on the basis that discrimination on the grounds of the latter is based on stereotypes of conduct on the basis of sex. The Court itself referred to the Human Rights Committee's decision in Toonen v. Australia’? in which the Tasmanian Criminal Code which MEMORANDUM ON BEHALF OF PETITIONERSSL MULTI MOOT COURT COMPETITION - FEB’19 criminalised sexual acts between men, was considered a violation of Article 2 of the International Covenant on Civil and Political Rights, where a reference to ‘sex’ was taken as including sexual orientation. The sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15. Article 15 prevents the State from discriminating against any citizen only on the grounds of sex, religion, race, caste, or place of birth. This provision was previously interpreted to mean that discrimination, which is not only on the grounds mentioned above, is permitted. In the Neve Johar Case’, the Supreme Court moved away from this narrow view and held that any ground of discrimination, whether direct or indirect, which is founded on a particular understanding of the role of the sex, constitutes discrimination under Article 15 This way, the Supreme Court expanded the prohibited grounds of discrimination under Article 15 to include sexual orientation, and, therefore, Section 377 was held to be discriminatory under Article 15, Having canvassed with vehemence that sexual orientation is an important facet of the right to privacy which has been raised to the pedestal of a cherished right, the learned counsel for the petitioners have vigorously propounded that sexual autonomy and the right to choose a partner of one ‘s choice is an inherent aspect of the right to life and right to autonomy. In furtherance of the said view, they have relied upon the authorities in Shakti Vahini v. Union of India and others?? and Shafin Jahan v. Asokan K.Mf°. wherein it has been clearly recognized that an individual ‘s exercise of choice in choosing a partner is a feature of dignity and, therefore, it is protected under Articles 19 and 21 of the Constitution. Learned counsel for the petitioners submits before this Hon’ble court that sexual orientation, being an innate facet of individual identity, is protected under the right to dignity. To bolster the said argument, reliance has been placed upon Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others! and Common Cause (A Registered Society) v. Union of India and another®* wherein it was held that the right to life and liberty, as envisaged under Article 21, is meaningless unless it encompasses within its sphere individual dignity and right to dignity inchides the right to carry such functions and activities as would constitute the meaningful expression of the human self. MEMORANDUM ON BEHALF OF PETITIONER‘SSL MULTI MOOT COURT COMPETITION - FEB'19 It is the case of the petitioners that Section 377 violates Article 15 of the Constitution since there is discrimination inherent in it based on the sex of a person's sexual partner as under Section 376(c) to (2). a person can be prosecuted for acts done with an opposite sex partner without her consent, whereas the same acts if done with a same-sex partner are criminalised even if the partner consents. The petitioners have drawa the attention of this Court to the Justice J.S Verma Committee on Amendments to Criminal Law which had observed that sex occurring in Article 15 includes sexual orientation and, thus, as per the petitioners, Section 377 is also violative of Article 15 of the Constitution oa this count. II. WHETHER LAWS RELATING TO THE INSTITUTION OF MARRIAGE NEED TO BE AMENDED? It is submitted on behalf of the petitioners that In India, citizens have a choice to be married under their various personal laws, or a common law of civil marriage. While none of the acts have explicitly defined marriage as a union between a man and a woman, it has been interpreted and understood to mean that a marriage is always between a man and a women, Words like ‘bride and bridegroom’, ‘husband and wife’ imply that the laws are valid only for couples of the opposite sex. The LGBTQ as a citizen of India, have all Rights to Marry, To claim maintenance and a right to adopt 2.1 Right to marry Every person has the right to live their life the way want, and decide what happiness, and what does not, Article 21 of the Constitution of India entitles every citizen of with the right to life and personal liberty. This right also includes the right to privacy and dignity. Choosing one’s life partner is a private subject, and it isa choice that an adult is entitled to make for himself, The Hindu Marriage Act, 1955, is applicable for Hindus, Sikhs, Jains and Buddhists. Section $ of this Act says that a marriage may be solemnised between any two Hindus, if the bridegroom has completed the age of twenty- one years and the bride the age of eighteen years at the time of the marriage. Also, Section 60 of the Indian Christian Marriage Act, 1872, lays down that the age of man intending to be mazried shall not be under twenty- one years, and the age of woman intending to be married shall not be under eighteen years. Thus, both these legislations have _heterosexist underpinnings. In the case of Muslims, they are governed by Islamic Law itself, rather than any codified law of the Parliament. As per Islamic law, marriage is a contract, and the purpose of MEMORANDUM ON BEHALF OF PETITIONERSSL MULTI MOOT COURT COMPETITION - FEB'19 marriage is to legalise sexual relations between a man and a woman, for the procreation of children (however, this is not a universal view, with other competing views existing about homosexuality in Islam). The Special Marriage Act, 1954, allows for marriages between individuals from different religions and castes, While no separate definition of marriage is given, the Act also has heterosexist underpinnings, such as the definition of a ‘prohibited relationship’ which only considers a relationship between a man and a woman within certain degrees of familial relations. Inheritance among Hindus is governed by the Hindu Succession Act, 1956. Section 8 of that Act read with the Schedule regards a widow as an heir of a man dying intestate (ie, without leaving a will), and Section 15 regards a husband as an heir of a dead woman. The words ‘widow’ and ‘husband’ obviously refer to man married to a woman, and not a same sex relationship. The right to many is a part of right to life under Article 21 of Indian Constitution, Right to marriage is also stated under Human Rights Charter within the meaning of right to start a family. The right to marry is a universal right and it is available to everyone irrespective of their gender. Various courts across the country have also interpreted right to marry as an integral part of right to life under Article 21 A forced marriage is illegal in different personal laws on mariage in India, with the right to marry recognised under the Hindu laws as well as Muslim laws. Other laws that lay down a person's right to marry in India are: The Prohibition of Child Marriage Act, 2006 The Guardians and Wards Act, 1890 The Majority Act, 1875 The Family Courts Act, 1984 The Protection of Women from Domestic Violence Act, 2005, MEMORANDUM ON BEHALF OF PETITIONER‘SSL MULTI MOOT COURT COMPETITION - FEB'19 * As Right to mary is a part of the widest nature of article 21 of the constitution and the Personal laws of India also never denied the aspect of same sex marriage then the right to marry applicable to LGBTQ as well which is humbly submitted by the counsels for the petitioner. There is enough Hindu literature available that speaks volumes about the stand of Hinduism on homosexuality, and as an extension on same sex marriages. Homosexuality has an ancient history in India Ancient texts like Rig-Veda which dates back around 1500 BC and sculptures and vestiges depict sexual acts between women as revelations of a feminine world where sexuality was based on pleasure and fertility. The description of homosexual acts in the Kamasutra, sculptures of the temple at Khajuraho, the character of ‘Sikhandi” in Mahabharata, evidences of sodomy in the Tantric rituals are some historical evidences of same-sex relationships. However, these experiences started losing their significance with the advent ofVedic Brahmanism and, later on, of British Colonialism, The Manusmriti provides harsh punishments for females having sexual relations with a girl, proving the existence of such relations during the period. However, both sexual systems coexisted, despite fluctuations in relative repression and freedom, until British Colonialism when the destruction of images of homosexual expression and sexual expression in general became more systematic and blatant, Muslim Islamic Shari'ah law is extracted from both the Qur’an and Muhammad's Sunnah Homosexuality under this law, is not only a sin, but a punishable crime against God.ln the case of homosexuality, how it is dealt with differs between the four mainline schools of Sunni jurisprudence today, but what they all agree upon is that homosexuality is worthy of a severe penalty, Muhammad himself had stated, “If you find anyone doing as Lot’s people did, kill the one who does it, and the one to whom it is done.” He even went so far as to condemn the “appearance” of homosexuality, when he cursed effeminate men and masculine women and ordered his followers to “Turn them out of your houses.” This ruling on homosexuals was naturally adopted by his later successors. Even by moderate Muslims homosexnality is seen as something that is vile and unacceptable MEMORANDUM ON BEHALF OF PETITIONERSSL MULTI MOOT COURT COMPETITION - FEB’19 ristianity There has been a great debate going on in the Christian world regarding the position of homosexuality. One line condemns the idea as a whole, whereas the other line says homosexuals should be accepted so that they can find a higher calling in God and change their ways, The split in thought has occurred after modern Western nations have started legalising homosexuality. However, traditionally, homosexuality has been condemned by Christianity 2.3 Right to maintenance The concept of ‘maintenance’ in India is covered both under Section 125 of the Code of Criminal Procedure, 1973 (Section 125) and the personal laws. This concept further stems from Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (the 'Constitution’). Under Indian law, the term ‘maintenance’ includes an entitlement to food, clothing and shelter, being typically available to the wife, children and parents. It is a measure of social justice and an outcome of the natural duty of a man to maintain his wife, children and parents, when they are unable to maintain themselves". The object of maintenance is to prevent immorality and destitution and ameliorate the economic condition of women and children, Maintenance can be claimed under the respective personal laws of people following different faiths and proceedings under such personal laws are civil in nature. Proceedings initiated under Section 125 however, are criminal proceedings and, unlike the personal laws, are of a summary nature and apply to everyone regardless of caste, creed or religion.”* The object of such proceedings however, is not to punish a -person for-his past neglect,The said provision has been enacted to prevent vagrancy by compelling those who a6 . can provide support to those who are unable to support themselves and have a moral claim to suppor Maintenance can be claimed either at the interim stage, ie, during the pendency of proceedings, or the final stage. The provisions of Section 125, Cr. P.C., 1973 apply and are to be enforced irrespective of whatever may be the personal law by which the persons in India are governed”. Simultaneously, it must be understood that personal laws of the parties concerned, Hindus, Muslims, Christians are to be duly cared of as the same are important to decide the validity of the marriage tie, if any, (existent or not) and so cannot be completely set aside from due consideration. The provisions under the Code of Criminal Procedure, 1973 binds a person to perform the moral obligation which he is duty bound to the society in respect of his wife, children and parents. The duty is by far legal and MEMORANDUM ON BEHALF OF PETITIONERSSL MULTI MOOT COURT COMPETITION - FEB‘19 binding” upon the person By way of a simple, speedy and effective limited relief, the provision included in chapter IX of Cr. P.C., 1973 tries to prevent the neglected wife, parent and children (minor) from utter penury and destruction, Section 125, Cr. P.C., 1973 provides a speedy remedy against starvation and civil destruction. It is not akin to civil liability of a husband. It sub-serves a summary procedure without much complexities. It gives effect to the basic fimdamental duty of a male person to maintain his wife, children and aged inform parents having no income of themselves. The basic idea behind the position of maintenance under Section 125, Cr. P.C., 1973 is that no wife, minor children, old parents should not devoid of and succumb to Lutter pressure of “wants” so that they may have to be tempted to take recourse to crimes ete. Provision under Section 125, Cr. P.C., 1973 authorises a Magistrate of the First Class to take summary action for prevention of poverty MEMORANDUM ON BEHALF OF PETITIONERSSL MULTI MOOT COURT COMPETITION - FEB’19 PRAYER In the light of arguments and authorities cited, the Respondents humbly pray that the Hon'ble Supreme Court may be pleased > to adjudge and declare that The writ petition filed by the NGO- Rainbow is maintainable > toamend laws relating to marriage > And entertain such other petition in the interest of justice Pass any other order the Hon’ble court deems fit in the interest of equity justice and good conscience. And for this, the Petitioners as in duty bound, shall Inanbly pray MEMORANDUM ON BEHALF OF PETITIONER